State v. Adler

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 14, 2002 Session

STATE OF TENNESSEE v. ALAN L. ADLER

Appeal by permission from the Court of Criminal Appeals

Circuit Court for Fayette County

No. 4945 Jon Kerry Blackwood, Judge

No. W2001-00178-SC-R11-CD - Filed December 30, 2002

The appellant, Alan L. Adler, was indicted for aggravated child neglect of a child under six years of

age, a Class A felony. Following trial, a Fayette County jury convicted him of the lesser-included

offense of reckless endangerment, a Class A misdemeanor. Subsequently, the appellant, pursuant

to Tennessee Code Annotated section 40-32-101 (section 40-32-101), petitioned the trial court to

expunge all public records pertaining to his indictment, prosecution, and trial for the aggravated child

neglect charge. After the appellant's petition was granted by the trial court, the State of Tennessee

appealed pursuant to Tennessee Rule of Appellate Procedure 3(c) (Rule 3(c)) and argued that Adler

was not entitled to expungement under section 40-32-101 because he was convicted of a lesser-

included offense. We granted this appeal to determine if the State is authorized under Rule 3(c) to

appeal a trial court's expungement order. After examining the facts and the law pertinent to this

issue, we hold that the State is not permitted to appeal a trial court's expungement order as of right

pursuant to Rule 3(c). Nevertheless, treating the State's appeal as a writ of certiorari, we also hold

that the appellant was entitled in this case to expungement of all public records pertaining to the

felony charge of which he was acquitted.

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Reversed and Case

Remanded to the Circuit Court for Fayette County

WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,

and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

Robert L. Hutton, Memphis, Tennessee, for the appellant, Alan L. Adler.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kim R.

Helper, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Ryan D.

Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

STATEMENT OF THE CASE

The defendant-appellant, Alan L. Adler, was indicted in Fayette County for the offense of

aggravated child neglect of a child under six years of age. At trial, the jury was instructed on

aggravated child neglect of a child under six years of age (a Class A felony) and the lesser-included

offenses of child neglect (a Class D felony) and reckless endangerment (a Class A misdemeanor).

Following deliberation, the jury found the defendant not guilty of either felony, but guilty of

misdemeanor reckless endangerment. The trial court suspended all but two days of the appellant's

nine month sentence, and he was released after serving forty-eight (48) hours in jail. Subsequently,

the appellant successfully petitioned the Circuit Court for Fayette County, pursuant to section 40-32-

101, "to order all public records pertaining to the arrest indictment, prosecution and trial . . . for

aggravated child neglect, and simple child neglect be expunged." On appeal, the Court of Criminal

Appeals reversed the trial court's expungement order and held: 1) that under the authority of State

v. McCary, 815 S.W.2d 220 (Tenn. Crim. App. 1991), the State could appeal an unfavorable

expungement order as of right under Rule 3(c); and 2) that the appellant was not entitled to have the

records of the greater charges expunged because he was convicted of a lesser-included offense.

ANALYSIS

I. THE STATE'S APPEAL AS OF RIGHT UNDER TENNESSEE RULE OF APPELLATE

PROCEDURE 3(C)

The appellant argues that the Court of Criminal Appeals erred in reviewing the State's appeal

of the trial court's expungement order under Rule 3(c). Specifically, the appellant claims that the

State's ability to appeal as of right is strictly limited to the instances set forth in Rule 3(c), which

provides:

Availability of Appeal as of Right by the State in Criminal

Actions. -- In criminal actions an appeal as of right by the state lies

only from an order or judgment entered by a trial court from which an

appeal lies to the Supreme Court or Court of Criminal Appeals: (1)

the substantive effect of which results in dismissing an indictment,

information, or complaint; (2) setting aside a verdict of guilty and

entering a judgment of acquittal; (3) arresting judgment; (4) granting

or refusing to revoke probation; or (5) remanding a child to the

juvenile court. The state may also appeal as of right from a final

judgment in a habeas corpus, extradition, or post-conviction

proceeding.

(Emphasis added). The appellant asserts that because Rule 3(c) does not include an order of

expungement among those instances wherein an appeal as of right by the State is permitted, the State

had no authority to appeal the expungement order as of right.

Conversely, while conceding that the express language of Rule 3(c) does not specifically

authorize the State to appeal an expungement order as of right, the State cites to the Court of

Criminal Appeals decision of State v. McCary for support for its position. McCary addressed

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whether a criminal defendant could appeal as of right a trial court's denial of an expungement order

under Tennessee Rule of Appellate Procedure 3(b) (Rule 3(b)). The language of Rule 3(b) is similar

to Rule 3(c) in that it very clearly enumerates the specific circumstances in which a defendant is

authorized to appeal as of right in a criminal action. None of these enumerated instances in Rule

3(b) would allow a defendant to appeal as of right a trial court's denial of an order of expungement.

Nevertheless, in McCary, the Court of Criminal Appeals held that the failure of Rule 3(b) to provide

for an appeal from the denial of an expungement order was "apparently an oversight in the drafting

of the rules since the statute establishing jurisdiction in this Court apparently anticipates that all final

judgments arising out of criminal cases are appealable." 815 S.W.2d at 221. Because of this

perceived oversight, the Court of Criminal Appeals held in McCary that a defendant could appeal

the denial of an order of expungement under Rule 3(b).

Because McCary granted criminal defendants an appeal as of right under Rule 3(b), the Court

of Criminal Appeals in the instant case held that in fairness the State should have a similar right

under Rule 3(c) because "what is good for the goose is good for the gander." Since no application

for permission to appeal was filed in McCary, this Court has not previously had the occasion to

examine whether the State or a criminal defendant may appeal under Rule 3 an unfavorable ruling

involving an expungement order. We take that opportunity at this time.

As this Court stated in Hill v. City of Germantown, 31 S.W.3d 234, 237-38 (Tenn. 2000),

"where a statute is without contradiction or ambiguity, there is no need to force its interpretation or

construction . . . ." Additionally, when interpreting statutes, this Court has routinely followed the

Latin maxim of expressio unius est exclusio alterius, meaning "the expression of one thing implies

the exclusion of all things not mentioned." Limbaugh v. Coffee Medical Center, 59 S.W.3d 73, 84

(Tenn. 2001); see also D & E Const. Co. v. Robert J. Denley Co., 38 S.W.2d 513, 519 (Tenn. 2001).

This Court has also determined that such rules of statutory construction are "applicable in construing

rules governing the practice and procedure of the court." State v. Peele, 58 S.W.3d 701, 704 (Tenn.

2001) (citing State v. Brewer, 989 S.W.2d 349, 355 n.4 (Tenn. Crim. App. 1997)).

Applying these rules to the instant case, it is clear that Rule 3(c) grants the State the authority

to appeal as of right only in a limited number of circumstances. The plain language of the rule

enumerates the six instances in which the State may appeal as of right and states that they are the

"only" instances that give the State such a right. Tenn. R. App. P. 3(c). Moreover, by listing the

specific circumstances that give the State the right of appeal under Rule 3(c), the rule "excludes other

[circumstances] that are not mentioned." Peele, 58 S.W.3d at 704. Additionally, noting that in the

past this Court has examined Advisory Committee Comments to aid in its interpretation of court

rules, see Gann v. Burtin, 511 S.W.2d 244, 246 (Tenn. 1974), we find it revealing that the Advisory

Commission Comment to Rule 3(c) states that "the rule provides that appeals as of right lie only in

those circumstances specified in the subdivision." (Emphasis added).

Furthermore, we disagree with the language in McCary suggesting that it was an oversight

on the part of the drafters of Rule 3 in failing to provide for the appeal of an unfavorable ruling

concerning an expungement order. The statute allowing for the expungement of public records,

currently section 40-32-101, became effective on July 1, 1973. By contrast, Rule 3 of the Tennessee

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Rules of Appellate Procedure became effective July 1, 1979, pursuant to Tennessee Code Annotated

sections 16-112 to 16-118 (1977). When interpreting statutes, this Court notes that "the Legislature

is presumed to have knowledge of its prior enactments and to know the state of the law at the time

it passes legislation." Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn. 1994); Neff v.

Cherokee Ins. Co., 704 S.W.2d 1, 4 (Tenn. 1986). We agree with the appellant that the same

presumption should apply to this Court when it drafts procedural rules which are approved by the

General Assembly. Because the expungement statute was in effect at the time Rule 3 became

effective, we must conclude that this Court and the General Assembly specifically chose to allow

neither the State nor a criminal defendant an appeal as of right under Rule 3 from an unfavorable

ruling concerning an expungement order.

Because of the plain and unambiguous language of Rules 3(b) and 3(c), we conclude that

neither the State nor a criminal defendant has the authority to appeal as of right an unfavorable ruling

concerning an expungement order under Rule 3. Accordingly, the judgment of the Court of Criminal

Appeals is reversed. To the extent that McCary is inconsistent with this opinion, it is overruled.

Nevertheless, despite the fact that Rule 3(c) fails to authorize the State to appeal as of right

the granting of an expungement order, the State urges this Court to permit the appeal to proceed as

a petition for a writ of certiorari. The common law writ of certiorari has been codified in Tennessee

Code Annotated section 27-8-101 (2000) (section 27-8-101). Section 27-8-101 provides:

The writ of certiorari may be granted whenever authorized by law,

and also in all cases where an inferior tribunal, board, or officer

exercising judicial functions has exceeded the jurisdiction conferred,

or is acting illegally, when, in the judgment of the court, there is no

other plain, speedy, or adequate remedy. This section does not apply

to actions governed by the Tennessee Rules of Appellate Procedure.

Generally, the writ of certiorari is limited in application and does not normally lie to inquire into the

correctness of a judgment issued by a court with jurisdiction. State v. Johnson, 569 S.W.2d 808, 815

(Tenn. 1978). However, we have previously noted that an appellate court is within its province to

grant a writ of certiorari "[w]here the action of the trial court is without legal authority." Id. (citing

State v. Gant, 537 S.W.2d 711 (Tenn. Crim. App. 1975)). The State maintains that the trial court's

granting of the appellant's motion for an order of expungement was erroneous because the appellant

was convicted of a lesser-included offense, rendering the expungement statute inapplicable. If the

State's position is correct, then the trial court was acting contrary to the law in granting the

appellant's petition for expungement. Because this appeal involves an allegation that the trial court

acted without legal authority and because "there is no other plain, speedy, or adequate remedy," we

will treat the State's appeal as that of a writ of certiorari. Accordingly, we will address whether in

granting the appellant's petition to expunge public records, the trial court acted without legal

authority in contravention of the expungement statute.

II. THE EFFECT OF LESSER-INCLUDED OFFENSE CONVICTIONS ON THE

EXPUNGEMENT STATUTE

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The authority of Tennessee trial judges to grant orders of expungement derives from section

40-32-101 which provides:

Destruction or release of records. -- (a)(1) All public records of a

person who has been charged with a misdemeanor or a felony, and

which charge has been dismissed, or a no true bill returned by a grand

jury, or a verdict of not guilty returned by the jury, and all public

records of a person who was arrested and released without being

charged, shall, upon petition by that person to the court having

jurisdiction in such previous action, be removed and destroyed

without cost to such person . . . .

(Emphasis added). Given that he was acquitted of the more serious charges (aggravated child

neglect and child neglect), the appellant asserts that he should be entitled to have the records of those

charges expunged because the jury found him not guilty of those charges. Conversely, the State

claims that the word "charge" in section 40-32-101(a)(1) embraces all lesser-included offenses. The

State asserts that because Adler was convicted of a lesser-included offense, the original charge has

not been dismissed, nor has a not guilty verdict been returned, rendering the expungement statute

inapplicable to the appellant.

We begin by noting that although this is an issue of first impression before this Court, the

Court of Criminal Appeals has dealt with similar issues involving the expungement statute. In State

v. Liddle, 929 S.W.2d 415, 415 (Tenn. Crim. App. 1996), a defendant, who was charged with six

separate counts of aggravated sexual battery within a single indictment, agreed to plead guilty to one

count in exchange for the prosecutor entering a nolle prosequi on the remaining five counts. After

the trial court denied the defendant's petition to have the record for the five dismissed counts

expunged, the Court of Criminal Appeals reversed the trial court and ordered that the five dismissed

counts be expunged pursuant to section 40-32-101. Id. Additionally, in Eslick v. State, 942 S.W.2d

559 (Tenn. Crim. App. 1996), the defendant was charged in a four-count indictment with offenses

including felony murder, aggravated rape, and aggravated kidnaping. The jury ultimately found the

defendant not guilty of the more serious felony murder and aggravated rape charges. However, the

trial court refused to grant the defendant's motion to expunge the record of those charges. Noting

the mandatory nature of the expungement statute, the Court of Criminal Appeals reversed, holding

that "the trial court has no discretion relative to expunging public records for charges resulting in a

dismissal or an acquittal." Eslick, 942 S.W.2d at 560.

This Court has previously stated "that our primary goal in interpreting statutes is 'to ascertain

and give effect to the intention and purpose of the legislature.'" Stewart v. State, 33 S.W.2d 785, 791

(Tenn. 2000) (quoting Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000)).

We have also noted that the best expression of legislative intent is the natural and ordinary meaning

of the language used by the General Assembly in the statute. See Lipscomb v. Doe, 32 S.W.3d 840,

845 (Tenn. 2000); Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000). This Court has previously

described the purpose of the expungement statute as being "to prevent a citizen from bearing the

stigma of having been charged with a criminal offense, where he was acquitted of the charge or

prosecution of the charge was abandoned." State v. Doe, 588 S.W.2d 549, 552 (Tenn. 1979)

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(overruled, in part, by statute) (emphasis added). We note that the word "charge" in this context is

not defined in the statute, nor anywhere else in the Tennessee Code. However, Black's Law

Dictionary (6th ed. 1990) defines "charge" in the criminal setting as "the specific crime the defendant

is accused of committing."

In the instant case, the jury found the appellant not guilty on the charge of aggravated child

neglect, which was the specific crime he was accused of committing. The jury also declined to

convict the appellant of child neglect. The offense for which Adler was convicted, reckless

endangerment, though a lesser-included offense of aggravated child neglect, see State v. Honeycutt,

54 S.W.3d 762 (Tenn. 2001), is clearly not the same "charge" as aggravated child neglect for

purposes of the expungement statute. Accordingly, we hold that a defendant who is convicted of a

lesser-included offense of the offense sought in the indictment or presentment is entitled to have the

record expunged of any greater charge(s) for which the jury finds the defendant not guilty. Under

section 40-32-101, we are persuaded that the appellant is entitled to have all public records of his

aggravated child neglect and child neglect charges expunged. We are mindful that if this Court were

to hold otherwise, it would be possible for a prosecutor to permanently harm a defendant by

significantly overcharging him or her, a valid concern given the pursuit of leverage in the plea

bargaining process. We think that it would run counter to the legislature's intent if the expungement

statute, designed to prevent citizens from being unfairly stigmatized, could be so easily trumped by

an overzealous or vindictive prosecutor.

Lastly, the State has posited that there may be cases where the original charge and lesser-

included offense for which a defendant is convicted are too intertwined to make expungement of the

record practical or even possible. While there may be a case in the future where expungement would

not be appropriate, this is not such a case.

CONCLUSION

We conclude that Rule 3 of the Tennessee Rules of Appellate Procedure does not permit

either the State or a criminal defendant to appeal as of right an unfavorable ruling regarding an order

of expungement. Furthermore, we conclude that a criminal defendant who is convicted of a lesser-

included offense than that sought in the indictment or presentment is entitled, under Tennessee Code

Annotated section 40-32-101, to have the records expunged for every offense in which the jury found

the defendant not guilty. This case is remanded to the Circuit Court for Fayette County so that the

original order granting the appellant's petition for expungement may be reentered.

Costs of this appeal are taxed to the State of Tennessee.

_____________________________

WILLIAM M. BARKER, JUSTICE

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