HOWREY v. STATE

HOWREY v. STATE
2002 OK CR 22
46 P.3d 1282
Case Number: F-2001-820
Decided: 05/07/2002
Mandate Issued: 05/29/2002
MICHAEL J. HOWREY, Appellant -vs- STATE OF OKLAHOMA, Appellee

S U M M A R Y  O P I N I O N

JOHNSON, VICE-PRESIDING JUDGE:

¶1 Appellant, Michael J. Howrey, petitioned the District Court of Delaware County to order expungement of law enforcement records relating to Delaware County District Court Case Nos. CF-1993-340 and CM-1993-1102, [46 P.3d 1283] pursuant to

¶2 Appellant raises the following propositions of error:

1. Expungement should have been granted because no charges were filed related to the arrest for "Soliciting a Minor for Sex."

2. Expungement, or amendment, should have been ordered because the records kept by the Oklahoma State Bureau of Investigation are in error.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we VACATE the district court's order and REMAND for further proceedings.

¶3 Appellant was arrested in Delaware County on September 16, 1993. The charges made by the arresting officer (according to the information introduced from Appellant's booking at the jail) were "Indecent Exposure" and "Soliciting a Minor for Sex." The next day, complaints were filed in two separate Delaware County cases, one for the felony charge of Indecent Exposure (

¶4 At the expungement hearing, Appellant argued that the arrest records should be expunged because they were inaccurate and misleading. Specifically, Appellant claimed (1) the record of an arrest for "Soliciting a Minor for Indecent Exposure/Obscene Material" should be expunged because no such arrest ever took place; and (2) although he was arrested for "Soliciting a Minor for Sex," any reference thereto should be expunged because no charges were ever filed for that offense. The district court concluded that Appellant's circumstances did not render him eligible to seek expungement under

¶5 The right to seek expungement of arrest records is conferred by statute. In

¶6 Appellant's primary complaint (and a fact never contested by the State) is that one of the two charges for which he was initially arrested, "Soliciting a Minor for Sex," was never filed by the district attorney. Appellant contends he is eligible to seek expungement under either of two provisions:

¶7 The State argued, and the district court apparently agreed, that because "charges were filed" on some sort of offense in relation to Appellant's arrest (and that charge was not dismissed within one year), the fact that he was never charged with a particular offense for which he was arrested is irrelevant, and cannot be grounds for an expungement petition. The State's position below relies on the use of the term "charges [are/were] filed" in § 18(3) and (4). The State apparently construes this term to mean "any charge of any kind," including but not limited to charges for the accusation made on arrest.

¶8 The goal of statutory construction is to discern the intent of the Legislature. A statute should be given a construction according to the fair import of its words taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. State v. Anderson,

¶9 With these principles in mind, we cannot agree with the district court's construction of

¶10 Reading § 18 as a whole, with the aim of rendering each part harmonious with the others, we believe the term "charges [are/were] filed" as used in § 18(3) and (4) necessarily refers to charges for the accusation made at arrest. Any other construction would lead to anomalous, even absurd, results. The State's construction would place § 18(3) and (4) in conflict with other provisions of the statute which permit expungement after acquittal and reversal of convictions, but which make absolutely no mention of situations where the charge filed differs from the accusation at arrest.

¶11 The State's construction would bar persons from seeking expungement even if, in the district attorney's estimation, the accusation at arrest had absolutely no factual basis, and the charge actually filed had no factual relation to the accusation at arrest (e.g., an arrest for first-degree murder, and a subsequent charge of possessing marijuana discovered during book-in at the jail).

¶12 Finally, the State's construction would be contrary to the clear legislative purpose of permitting expungement in cases of evidentiary insufficiency and prosecutorial inaction. Section 18 permits expungement when the evidence is sufficient to merit a formal charge and bindover for trial, but is insufficient to sustain a conviction. It even permits expungement where the evidence is clearly sufficient to sustain a conviction, but the case is reversed for trial error and subsequently dismissed for any reason. Yet in the State's view, expungement would never be permitted where the accusation at arrest did not even merit the filing of a criminal complaint for that offense in the first place. We cannot believe the Legislature intended such a strange result.

¶13 We conclude that under the circumstances presented here, Appellant was statutorily eligible to seek expungement of his arrest record, pursuant to

DECISION

¶14 The district court's Order Denying Expungement is VACATED and the case is REMANDED for further proceedings not inconsistent with this opinion.

AN APPEAL FROM THE DISTRICT COURT OF DELAWARE COUNTY
THE HONORABLE ALICIA LITTLEFIELD, SPECIAL JUDGE

APPEARANCES AT TRIAL

T. GENE MONROE II
HALL, ESTILL, HARDWICK,
GABLE, GOLDEN & NELSON
320 S. BOSTON, SUITE 400
TULSA, OK 74103-3708
ATTORNEY FOR DEFENDANT

JOHN KELSON
ASST. DISTRICT ATTORNEY
DELAWARE COUNTY
P. O. BOX 528
JAY, OK 74346
ATTORNEY FOR THE STATE

STACY MOREY
ASSISTANT GENERAL COUNSEL
6600 N. HARVEY
OKLAHOMA CITY, OK 73116-7912
ATTORNEY FOR OKLAHOMA STATE
BUREAU OF INVESTIGATION

APPEARANCES ON APPEAL

T. GENE MONROE II
HALL, ESTILL, HARDWICK,
GABLE, GOLDEN & NELSON
320 S. BOSTON, SUITE 400
TULSA, OK 74103-3708
ATTORNEY FOR APPELLANT

SETH S. BRANHAM
ASST. ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OK 73104
ATTORNEY FOR THE STATE

OPINION BY JOHNSON, V.P.J.

RB

FOOTNOTES

LUMPKIN, PRESIDING JUDGE: DISSENTS

¶1 I dissent to the Court's decision to vacate the District Court's order denying expungement as I find Appellant was not statutorily eligible to seek expungement of his arrest record.

¶2 The record reflects Appellant was initially arrested for Soliciting a Minor for Sex and Indecent Exposure. The District Attorney then reviewed the arrest records and the supporting evidence in order to determine whether criminal charges should be filed. In making that legal decision, the District Attorney determined Solicitation of a Minor was not a criminal offense as set forth in the state criminal statutes. Based upon the evidence, the District Attorney determined the appropriate criminal charge to file was the misdemeanor offense prohibiting the making of obscene, threatening, or harassing phone calls. To this offense, Appellant pled guilty.

¶3 Under

¶4 While Appellant is not entitled to the expungement of his arrest record, he is entitled to have that arrest record corrected to note that the arrest culminated in the prosecution and conviction for Making Obscene, Threatening, or Harrassing Phone Calls.

¶5 I am authorized to state that Judge Lile joins in this dissent.