State v. N.J.

373 So.3d 579

STATE of Mississippi, Appellant

v.N.J., Appellee

NO. 2022-CA-00788-COA

Court of Appeals of Mississippi.

10/24/2023

PEARL RIVER COUNTY CIRCUIT COURT, HON. PRENTISS GREENE HARRELL, JUDGE

ATTORNEY FOR - APPELLANT: CHRISTINA HOPSON HOLCOMB, Poplarville

ATTORNEY FOR APPELLEE: DARLA Y. MANNERY-PALMER

BEFORE CARLTON, P.J., McCARTY AND SMITH, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. In March 1996, N.J. pleaded guilty to possession of a controlled substance (cocaine) with intent to sell or deliver relating to an incident occurring in July 1995. In February 2000, N.J. pleaded guilty to the sale of cocaine relating to an incident occurring in May 1998.

¶2. In August 2021, N.J. filed a motion in the Pearl River County Circuit Court seeking to expunge both felony convictions. The circuit court granted N.J.’s motion, finding that the two convictions "arose from a common nucleus of operative facts" and therefore could be expunged as only one felony expunction pursuant to Mississippi Code Annotated section 99-19-71(2)(a) (Rev. 2020). The State appeals, asserting that the circuit court abused its discretion in making its commonality determination. We agree.

¶3. For the reasons addressed below, we find that the circuit court abused its discretion in determining that N.J.’s two felony convictions arose from a common nucleus of operative facts pursuant to section 99-19-71(2)(a). We therefore reverse the circuit court’s expungement order and remand this case for the circuit court to determine which felony conviction to expunge.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶4. In August 1995, N.J. was indicted for the sale of a controlled substance in violation of Mississippi Code Annotated section 41-29-139(a)(1) (Supp. 1995). As set forth in the indictment, N.J. sold cocaine, a Schedule II controlled substance, for twenty dollars to a police officer with the. Picayune Police Department on or about July 2, 1995. N.J. pleaded guilty on March 21, 1996, for possession of a controlled substance with intent to sell or deliver it after the district attorney amended the charge from the sale of a controlled substance to possession (Cause No. 55:93-CR-8268-PH (Legacy Cause No. 8268-2)).

¶5. The circuit court sentenced N.J. to serve ten years in the custody of the Mississippi Department of Corrections (MDOC) and ordered N.J. to participate in the Regimented Inmate Discipline (RID) program.¹ Upon completion of the RID program, N.J. was to be placed on supervised probation for five years. N.J. was released from the RID program in November 1996 and placed on five years of probation.

¶6. In August 1998, N.J. was indicted for selling cocaine within 1,500 feet of a church in violation of Mississippi Code Annotated section 41-29-142(1) (Rev. 1993). The indictment provides that N.J. sold cocaine for twenty dollars to a deputy with the Pearl River County Sheriff's Department on or about May 11, 1998. On February 29, 2000, N.J. pleaded guilty to the sale of a controlled substance (Cause No. 55:98-CR-329-PH (Legacy Cause No. 98-K-329E)).

¶7. N.J.’s probation on his first conviction was revoked when he was charged with the second felony. The record indicates that in Case No. 98-K-329E, N.J.’s probation was revoked in Cause No. 8268-2, and for the second conviction, N.J. was sentenced to thirty years in MDOC’s custody, with fifteen years to serve and fifteen years suspended pending completion of post-release supervision. This sentence was ordered to run concurrently with the sentence in Cause No. 8268-2.

¶8. The record contains a letter dated November 9, 2000, from Circuit Court Judge R. I. Prichard III to N.J. in which Judge Prichard explained to N.J. that the intention of the sentencing orders was to have N.J.’s sentence in Cause No. 8268-2 to run concurrently with his sentence in Cause No. 98-K-329E. The letter provided:

Th[e] sentence [in Cause No. 98-K-329E] ran concurrent with the sentence in [Cause No.] 8268-2, which means that with both sentences you had fifteen … years to serve. You were revoked after picking up the second charge … and since the second charge ran concurrent with the first charge, you still have fifteen … years to serve as set out in your Order of Conviction and Sentence in Cause No. 98-K-329E.

You were not sentenced in [Cause] No. 8268-2 to the five … years probation; you were sentenced to ten … years, and then were placed on probation for five … years, after completing the RID program. However, this ten … years r[a]n concurrent with the fifteen … years in [Cause] No. [98-K-329E], so instead of having twenty-five years to serve, you still just have the fifteen … to serve.

¶9. N.J. completed his sentences on May 16, 2011.

¶10. In August 2021, N.J. filed a motion seeking to expunge both of his convictions pursuant to section 99-19-71(2)(a), which allows for a felony expunction of multiple convictions if the convictions "arose from a common nucleus of operative facts as determined in the discretion of the court." Miss. Code Ann. § 99-19-71(2)(a).

¶11. The State opposed N.J.’s motion, asserting that only one of the convictions qualified for expungement under section 99-19-71(2)(a) because the convictions were based on separate and distinct actions at different times. The State argued that they were two separate convictions that were not based on a common nucleus of operative facts.

¶12. After conducting an evidentiary hearing on October 4, 2021, the circuit court granted N.J.’s motion, and its "Order to Expunge Records" was entered on October 6, 2021. The circuit court found that (1) N.J. had successfully completed all the terms and conditions of his sentences and that more than five years had passed since N.J.’s May 16, 2011 probation completion date; (2) the two charges qualified as one felony expunction and retained sufficient commonality to satisfy the common nucleus of operative facts requirement, as determined in the court’s discretion; and (3) N.J. had demonstrated significant rehabilitation in accordance with section 99-19-71(2)(b). Further details of the circuit, court’s analysis with respect to the commonality requirement are addressed below.

¶13. The State filed a motion for reconsideration, asserting that the circuit court’s commonality finding and application was an abuse of the circuit court’s discretion. The circuit court denied the, State’s motion, ruling as follows:

[I]n light of there being found no case on point as to what constitutes "a common nucleus of operative facts [in the expungement context]," the court is not sufficiently persuaded by the State’s motion to reverse [the court’s] discretionary finding, that the two subject crimes were sufficiently close enough to one another in time and in nature, and therefore eligible for expunction under Mississippi Code Annotated [section] 99-19-71(2)(a).

¶14. The State appeals.

STANDARD OF REVIEW

[1, 2] ¶15. "Because expungement is statutory in nature, this Court employs a de novo standard of review." Mack v. State, 355 So. 3d 790, 794 (¶20) (Miss. Ct. App. 2023) (internal quotation marks omitted). Under section 99-19-71(2)(a), "[a] person is eligible Tor only one … felony expunction." "In undergoing our de novo review, we also bear in mind that ‘expungement is an act of legislative grace, and no common law right to expungement of criminal records exists.’ " Mack, 355 So. 3d at 794 (¶20) (quoting Watson v. State, 329 So. 3d 1215, 1217 (¶5) (Miss. Ct. App. 2021)).

[3] ¶16. The statute, however, does allow for the expungement of multiple convictions that meet a commonality requirement, as follows: "For the purposes of this section, the terms ‘one (1) conviction’ and ‘one (1) felony expunction’ mean and include all convictions that arose from a common nucleus of operative facts as determined in the discretion of the court." Miss. Code Ann. § 99-19-71(2)(a) (emphasis added). Thus, we review the circuit court’s factual findings relating to whether the two convictions at issue here "arose from a common nucleus of operative facts" for an abuse of that discretion. Id. Under this standard, reversal of the circuit court’s ruling is warranted "if we find it to be arbitrary and clearly erroneous." Parvin v. State, 113 So. 3d 1243, 1247 (¶12) (Miss. 2013) (internal quotation mark omitted).

DISCUSSION

[4] ¶17. The State asserts that the circuit court abused its discretion in determining that N.J.’s two felony convictions arose from a common nucleus of operative facts pursuant to section 99-19-71(2)(a). The State argues the cocaine sales underlying the convictions were nearly three years apart and were made to a Picayune police officer in one instance and a Pearl River County deputy sheriff in the other instance. We agree that for these reasons and others, it was an abuse of discretion to find that the section 99-19-71 (2)(a) commonality requirement was met in this case.

¶18. The circuit court expunged N.J.’s two felony convictions pursuant to section 99-19-71(2)(a), which provides in relevant part:

Except as otherwise provided in this subsection, a person who has been convicted of a felony and who has paid all criminal fines and costs of court imposed in the sentence of conviction may petition the court in which the conviction was had for an order to expunge one (1) conviction from all public records five (5) years after the successful completion of all terms and conditions of the sentence for the conviction upon a hearing as determined in the discretion of the court

….

A person is eligible for, only one (1) felony expunction under this paragraph. For the purposes of this section, the terms "one (1) conviction" and "one (1) felony expunction" mean and include all convictions that arose from a common nucleus of operative facts as determined in the discretion of the court.

¶19. The State acknowledges that no Mississippi caselaw addresses whether two or more convictions "arose from a common nucleus of operative facts" under section 99-19-71(2)(a). The State asserts, however, that ...