Molloy v. Gov't of the V.I.

2022 V.I. 16

DEAN A. MOLLOY, Appellant/Petitioner, v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee/Respondent.

S.Ct. Crim. No. 2019-0004

Supreme Court of Virgin Islands

August 17, 2022

Argued: December 10, 2019

On Appeal from the Superior Court Re: Super. Ct. Misc. No 67/2018 (STX) of the Virgin Islands Division of St. Croix Superior Court Judge: Hon. Douglas A. Brady

Dean Molloy

St Croix, U.S.V.I.

Pro Se,

Aysha R. Gregory, Esq.

Assistant Attorney General

St. Thomas, U.S.V.I.

Attorney for Appellee.

BEFORE: RHYS S. HODGE, Chief Justice; MARIA CABRET, Associate Justice and IVE ARLINGTON SWAN, Associate Justice.

OPINION OF THE COURT

IVE ARLINGTON SWAN ASSOCIATE JUSTICE.

¶1 Appellant Dean Molloy ("Molloy") appeals the Superior Court's denial of his petition to expunge his criminal record. We conclude that Molloy's gubernatorial pardon fails to eradicate his criminal record; therefore, he did not fall within the confines of the Virgin Islands expungement statute, which specifically states the Superior Court may exercise its discretion to expunge a petitioner's record provided the petitioner was not convicted of a crime.^[1],^[2] For the reasons elucidated below, we affirm the Superior Court's decision concluding that Molly lacked the qualification to have his criminal record of convictions for second degree murder and possession of a dangerous weapon expunged pursuant to the Virgin Islands expungement statute.^[3]

I. FACTS AND PROCEDURAL HISTORY

¶2 On May 10, 1990, a jury convicted Molloy of second degree murder, in violation of 14 V.I.C. § 922(b), and possession of a dangerous weapon, in violation of 14 V.I.C. § 2251(a).

¶3 On November 19, 1996, Molloy was released from incarceration.

¶4 On December 30, 2006, former Virgin Islands Governor Charles Turnbull executed an executive pardon on Molloy's behalf. The pardon stated that despite his two felony convictions, Molloy had participated in numerous community endeavors and obtained several academic distinctions following his release which warranted the pardon's issuance.

¶5 On August 13, 2018, Molloy filed a petition in Superior Court to expunge his criminal record. In the petition, Molloy argued the governor's pardon entitled him to an expungement of his criminal record.

¶6 In a December 19, 2018 opinion, the Superior Court denied Molloy's expungement petition and opined that the Virgin Islands Code lacks a statute that allows for the expungement of felony convictions. In the opinion, the Superior Court further concluded that a gubernatorial pardon, standing alone and without legislative authority, did not support the action Molloy sought.

¶7 On July 15, 2019, Molloy perfected the instant appeal.

II. JURISDICTION

¶8 "The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees, and final orders of the Superior Court." 4 V.I.C. § 32(a). "An order that disposes of all claims submitted to the Superior Court is considered final for the purposes of appeal." Jung v. Ruiz, 59 V.I. 1050, 1057 (2013) (citing Matthew v. Herman, 56 V.I. 674, 677 (2012)). Because the Superior Court's December 18, 2019 order denying Molloy's expungement petition disposed of all claims submitted to it for adjudication, the order is final and we exercise jurisdiction over Molloy's appeal.

III. STANDARD OF REVIEW

¶9 We review the trial court's factual findings for clear error and exercise plenary review over its legal determinations. Thomas v. People, 63 V.I. 595, 602-03 (2015) (citing Simmonds v. People, 53 V.I. 549, 555 (2010)). "However, in ruling on the correctness of discretionary rulings, such as those granting or denying motions to suppress evidence or for severance, we review only for abuse of discretion." Ponce v. People, 72 V.I. 828 (V.I. 2020) (citations omitted).

IV. DISCUSSION

¶10 On appeal, Molloy challenges the Superior Court's denial of his petition to expunge his felony convictions.

¶11 A pardon is an "act or an instance of officially nullifying punishment or other legal consequences of a crime." BLACK'S LAW DICTIONARY 938 (10th ed. 2014). A full or absolute pardon absolves a wrongdoer from punishment and restores his civil rights. Id. Locally, the Virgin Islands expungement statutes delineate instances when an individual's criminal record must be expunged.^[4] See supra notes 1 &2. Although the definition of a pardon is seemingly direct, individual states and the federal government differ on the effect of pardons.

¶12 In Ex parte Garland, 71 U.S. 333, 380 (1866), the United States Supreme Court opined in its seminal case that "[a] pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out [the] existence [of] guilt ...." However, since the decision, the Supreme Court has streamlined the broad Ex parte Garland ruling to acknowledge the legal limits of pardons. See Knote v. United States, 95 U.S. 149, 152 (1877) ("[While] a full pardon releases the offender from all disabilities imposed by the offence pardoned, it does not affect the rights which have vested in others directly by the execution of the judgment for the offence or which have been acquired by others [while] the judgment was in force. And if the proceeds of property of the offender sold under the judgment have been paid into the treasury, the right to them has so far become vested in the United States that they cannot be recovered by him through an act of Congress."); Carlesi v. New York, 233 U.S. 51, 59 (1914) ("[W]e must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority . . . for taking into consideration past offenses committed by the accused as a circumstance of aggravation, . . . although for such past offences there had been a pardon granted."). Lastly, "[m]odern case law has dismissed the 'blotting out' language from Ex parte Garland as dictum and rejected [its] expansive view of the pardon power." State v. Radcliff, 978 N.E.2d 1275, 1283 (Ohio Ct. App. 2012). See Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975) (noting "a pardon does not 'blot out guilt' nor does it restore the offender to a state of innocence in the eye of the law as suggested in Ex parte Garland"); State v. Skinner, 632 A.2d 82, 84 (Del. 1993) (noting that "[w]hile the [United States] Supreme Court, in Ex parte Garland, . . . stated that a full pardon 'releases the punishment and blots out the existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense,' that dictum has since been rejected"); Hirschberg v. Commodity Futures Trading Comm'n, 414 F.3d 679, 682 (7th Cir. 2005) (rejecting reliance on Ex parte Garland, noting that modern caselaw emphasizes . . . that this historical language was dicta and is inconsistent with current law"); United States v. Noonan, 906 F.2d 952, 958 (3rd Cir. 1990) (noting the Supreme Court, by 1915, "made clear that it was not accepting the Garland dictum that a pardon 'blots out [the existence of guilt]'"). Therefore, a pardon's effect is constrained by Supreme Court proclamations after Ex parte Garland as well as state statutes and judicial interpretations.

¶13 The following cases illuminate and buttress the conclusion that Molloy is not entitled to expungement of his criminal felony conviction record because he obtained a gubernatorial pardon.

¶14 In Harscher v. Commonwealth, 327 S.W.3d 519, 522 (Ky. Ct. App. 2010), the Kentucky Court of Appeals ascertained the effect of a governor's pardon on a petitioner's request to have his criminal record expunged. Although the petitioner argued that the governor's full pardon eliminated his guilt and conviction and thereby expunged his record, the Court of Appeals disagreed. The Court concluded that, while the full pardon released the plaintiff from punishment and restored his civil liberties, the pardon failed to eliminate the plaintiff's guilt or his conviction. However, the Court recognized that in Indiana and Pennsylvania, the grant of an executive pardon automatically expunged an individual's criminal record. Regardless, the Court decided that the governor's pardon did not automatically entitle the petitioner to an expungement of his criminal record.

¶15 In State v. Radcliff, 978 N.E.2d 1275 (Ohio Ct. App. 2012), the Ohio Court of Appeals reviewed the effect of pardons in other jurisdictions. The Court cited R.J.L. v State, 887 So.2d 1268, 1279 (Fla. 2004), which noted "'of the nine jurisdictions [to] have directly addressed whether a pardon entitles an individual to records expunction,' the majority 'held that a pardoned individual is not entitled to records expunction.'" Radcliff, 978 N.E.2d at 1286. In R.J.L., the Florida Supreme Court considered whether a pardon eradicated an individual's adjudication of guilt so that he was entitled to expungement of his criminal record under the state's expungement statute. 887 So.2d at 1271. The R.J.L. Court opined that "although 'a pardon has the effect of removing punishment and disabilities, and restoring civil rights[,] . . . the denial of records expunction does not constitute a punishment' and 'eligibility for records expunction is not a civil right restored by the grant of a gubernatorial pardon.'" Id. at 1280. Thus, the R.J.L. Court decided a gubernatorial pardon did not eliminate an individual's guilt, "creating a fiction that the crime never occurred." Id. See Bjerkan, 529 F.2d at 126 (holding that a pardon "cannot erase the basic fact of conviction, nor can it wipe away the social stigma that a conviction inflicts"); State v. Blanchard, 100 S.W.3d 226,...