Bolin v. State

Jim Hannah, Chief Justice, concurring in part and dissenting in part.

In 2013, the General Assembly enacted Act 1460, an “Act To Establish The Comprehensive Criminal Record Sealing Act Of 2013; To Amend, Consolidate, Clarify, And Simplify The Process For Sealing A Person’s Criminal Record Under Certain Circumstances; And For Other Purposes.” See Act of Apr. 22, 2013, No. 1460, 2013 Ark. Acts 6383 . Act 1460, which became effective on January 1, 2014, amended various statutes in the Arkansas Code, repealed existing statutory procedures for the expungement and sealing of criminal records, and created the Comprehensive Criminal Record Sealing Act of 2013 to govern all proceedings involving the sealing of criminal records. Because I believe that Act 1460 of 2013 applies prospectively to all petitions to seal filed on or after January 1, 2014, I concur in part and dissent in part to the majority’s decision to reverse and remand the order of the circuit court.

Bolin’s plea agreement and judgment- and-disposition order state that he was eligible to have his convictions for two misdemeanors and a Class D felony sealed pursuant to Act 531 of 1993, known as the Community Punishment Act, codified at Ark. Code Ann. §§ 16-93-1201 to -1210. Until Act 1460 of 2013 became effective, a person could | npetition the circuit court to expunge the record of his or her offense immediately upon successful completion of a sentence. See Ark. Code Ann. § 16-93-1207 (b)(1), (3) (Supp. 2013) [Effective until January 1, 2014]. Act 1460 amended section 16-93-1207(b)(3) to state that “[t]he procedure, effect and definition of 'sealed’ for the purposes of this subsection shall be in accordance with that established in the Comprehensive Criminal Record Sealing Act of 2013,16-90-1401 et. seq.” See 2013 Ark. Acts 1460 , § 15; at 6418; see also id. § 9, at 6395 (amending Arkansas Code Title 16, Chapter 90, to add a new sub-chapter titled “Comprehensive Criminal Record Sealing Act of 2013”). Pursuant to the Comprehensive Criminal Record Sealing Act of 2013 (“CCRSA”), a person does not become eligible to petition the circuit court to seal a record of conviction for a Class D felony until five years has elapsed since the completion of the person’s sentence for that felony. See 2013 Ark. Acts 1460 , § 9, codified at Ark. Code Ann. § 16-90-1406 (Supp. 2013) [Effective January 1, 2014], A person does not become eligible to petition the circuit court to seal a record of conviction for a misdemeanor or violation until sixty days has elapsed since the completion of the person’s sentence for the misdemeanor or violation. See id. codified at Ark. Code Ann. § 16-90-1405 (Supp. 2013) [Effective January 1, 2014],

Bolin contends that section 16-93-1207(b)(3), as amended by Act 1460 of 2013, and the CCRSA should not be applied retroactively to his petition to seal. In support of his contention, he cites cases in which this court has held that a sentence must be in accordance with the sentencing statute in effect at the time of the commission of the crime, see, e.g., Donaldson v. State, 370 Ark. 3 , 257 S.W.3d 74 (2007), State v. Ross, 344 |12Ark. 364, 39 S.W.3d 789 (2001), and that a sentencing statute will be applied retroactively only when the General Assembly expressly pro- . vides for retroactive application, see id., Elders v. State, 321 Ark. 60 , 900 S.W.2d-170 (1995). He further contends that the retroactive application of the CCRSA would violate the ex post facto clauses of the Arkansas and United States Constitutions.

Bolin is correct that a sentence must be in accordance with the statute in effect on the date of a crime, and that a change in sentencing, applied retroactively, would violate the ex post facto clauses, but section 16 — 93—1207(b)(3), as amended by Act 1460 of 2013, and the CCRSA are not sentencing statutes, and they will not be applied “retroactively” in this case. See Landgraf v. USI Film Products, 511 U.S. 244, 269 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994) (explaining that “[a] statute does not operate ‘retrospectively merely because it is applied in a case arising from conduct antedating the statute’s enactment ... or upsets expectations based in prior law”).

The General Assembly expressly stated that, effective January 1, 2014, the CCRSA was to govern “all proceedings involving the sealing of criminal records,” and that, with certain exceptions inapplicable in this case, “inconsistencies between this sub-chapter [the CCRSA] and any other sections within the Arkansas Code in existence on the effective date of this act are resolved in favor of this subchapter.” See 2013 Ark. Acts 1460 , § 9, codified at Ark. Code Ann. § 16-90-1403 (Supp. 2013) [Effective January 1, 2014].

Bolin filed his petition to seal record on March 19, 2014, which was after the January 1, 2014 effective date of the CCRSA and the other provisions of Act 1460. Therefore, as applied to Bolin’s petition, the CCRSA and section 16-93-1207(b)(3), as | isamended by Act 1460, are prospective in nature rather than retroactive. Bolin is not eligible to petition the circuit court to seal his record of conviction for a Class D felony until five years has elapsed since the completion of his sentence for that felony. Accordingly, I would affirm the circuit court’s denial of Bolin’s petition to seal the felony. Finally, because I believe that Act 1460 applies prospectively to all petitions to seal filed on or after January 1, 2014, I would reverse and remand the circuit court’s denial of Bolin’s petition to seal the misdemeanor records. Thus, I concur in the majority’s judgment that the circuit court should consider whether Bolin has satisfied the requirements of section 16-90-1405.

Wynne, J., joins.