E-Filed Document May 6 2014 13:34:19 2013-CA-01501 Pages: 13 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CLARENCE JONES VERSUS STATE OF MISSISSIPPI APPELLANT 2013-CA-01501 APPELLEE APPEALED FROM THE CIRCUIT COURT OF WARREN COUNTY, MISSISSIPPI BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED LOWREY & FORTNER P.A. Attorneys at Law Thomas M. Fortner MSB #5441 525 Corinne Street Hattiesburg, MS 3940] 60].582.50] 5 60].582.5046 (Fax)
CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons or entities have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or judges of the Courts of Appeals may evaluate possible disqualification or recusal. 1. Honorable M. James Chaney, Jr., Circuit Court Judge 2. Honorable Jim Hood, Attorney General for State of Mississippi 3. Honorable Richard (Ricky) Smith, Jr., Warren County District Attorney 4. Clarence Jones, Appellant So certified, this the 6 th day of May, 2014. lsi Thomas M. Fortner Thomas M. Fortner ii.
TABLE OF CONTENTS I. Statement of the Issue... 1 II. Statement of the Case... 1 III. Summary of the Argument... 2 IV. Standard of Review... 2 V. Argument... 2 a. Whether the Circuit Court has the statutory authority and/or obligation to order expungement of a person's murder conviction when that person has received a full, complete and unconditional pardon of the conviction from the Governor... 3 VI. Conclusion... 7 VII. Certificate of Service and Filing... 8 iii.
REOUEST FOR ORAL ARGUMENT The Appellant, Clarence Jones, submits that oral argument would be beneficial to the resolution of this case in light of the complex factual history and unusual procedural posture of this case. Furthermore, there are two (2) other cases currently pending before this Court concerning the issue argued herein. Katherine Robertson v. State, 2013-CA- 01404 and Zachary Polk v. State, 2013-CA-00701. Appellant would urge the Court to consider consolidating all of these cases for purposes of oral argument. The issue involved in these cases is of significance throughout the Circuit Courts of Mississippi, and it is an issue causing a lack of uniformity in the decisions of the State's Circuit Court Judges. iv.
TABLE OF CASES, STATUTES, AND AUTHORITIES CITED Cases City of Laurel v. Williams, 21 So.2d 117 (Miss.2009)... 2 Commonwealth v. C.S., 534 A.2d 1053 (Pa.1987)... 4,5 Commonwealth v. Sutley, 378 A.2d 780 (Pa.1977)... 5 Delaware v. Skinner, 632 A.2d 82 (Del.I993)... 4 Ex Parte Crisler, 132 So.103 (Miss. 1931)... 1,2,5,6,7 Harscher v. Kentucky, 327 S.W. 3d 519 (Ky. App. 2010)... 4, Illinois v. Thon, 746 N.E. 2d 1225 (Ill. 2001)... 3 In re Hooker, 87 So.3d 401 (Miss. 2012)... 3 State v. Bergman, 558 N.E. 2d 111 (Ind.ct. App. 1990)... 4,5 State v. Cope, 676 N.E. 2d 141 (Ohio 1996)...4 Statutes and Rules Miss. Code Ann. 99-19-71(2)... 2,3 Miss. Code Ann. 99-19-71 (4)... 1,2,3,4,7 v.
STATEMENT OF THE ISSUE Whether the Circuit Court has the statutory authority and/or constitutional obligation to order expungement of a person's aggravated assault conviction when that person has received a full, complete and unconditional pardon of the conviction from the Governor pursuant to the Executive's broad constitutional authority to pardon. STATEMENT OF THE CASE This litigation presents a previously undecided issue which requires the Court to consider the validity of its own previous decisions concerning the definition and scope of a Governor's pardon of a felony conviction and the application of that precedent to the expungement statute as promulgated by the Legislature. On February 25, 1992, Clarence Jones was indicted by a Warren County grand jury for the crime of murder (R.E. 6). He plead guilty to and was convicted of that charge in Warren County Circuit Court on July 27, 1992 (R.E. 7). Also on July 27, 1992, Mr. Jones was sentenced to serve life imprisonment in the custody of the Mississippi Department of Corrections. (R.E. 7). On January 13,2004, Mr. Jones was granted an indefinite suspension of his life sentence by Governor Ronnie Musgrove (R.E. 8). Thereafter, on July 16, 2008, Governor Haley Barbour granted Mr. Jones a full, complete and unconditional pardon for the conviction of murder (R.E. 8). On June 14,2013, Mr. Jones filed a Motion to Expunge the official records in the murder case pursuant to the Mississippi Supreme Court ruling in Ex Parte Crisler, 132 So.2d 103 (Miss. 1931) and Section 99-19-71 (4), Miss. Code Ann. (1972, as amended). (R.E. 3-8). The Circuit Court of Warren County denied the Motion to Expunge on July 19,2013, on the basis that the "... power to expunge is controlled by the legislative mandate. The Mississippi Legislature has not yet included 1
persons receiving pardons as being eligible to have their records expunged." (R.E. 9-11). SUMMARY OF THE ARGUMENT Section 99-19-71 (4) of the Mississippi Code requires that the court shall expunge the records of any person who was arrested, released, and the case was dismissed or the charge was dropped or there was no disposition of the case. In Ex Parte Crisler, 132 So.2d 103 (Miss. 1931), the Mississippi Supreme Court stated that a pardon of a felony conviction by the Governor erases the fact of conviction and makes it as if it never was. The Governor pardoned, fully and unconditionally, Mr. Jones's murder conviction. Therefore, he was arrested, released, and there was no disposition of the case, as he was not convicted and the case was not dismissed or dropped. Therefore, pursuant to Miss. Code Ann. 99-19-71 (4), the Circuit Court was obligated to grant expungement. The Circuit Court's decision to limit the Governor's constitutional pardon power was therefore in error. In order for the Executive's constitutional authority to grant an unconditional pardon to mean anything, it must mean, as this Court held in Crisler, that all incidents of the conviction are obliterated. A pardon without expungement is not a pardon. STANDARD OF REVIEW The issue involved in this appeal is purely a question of law, to which this Court applies a de novo standard of review. City of Laurel v. Williams, 21 So.3d 117 (Miss.2009). ARGUMENT Section 99-19-71 (2) ( a and b), Miss. Code Ann. (1972, as amended), grants authority to the court of conviction to expunge the record of conviction in certain misdemeanor and felony crimes. Section 99-19-71 (4) thereafter grants the following authority: 2
... upon petition therefor, a justice, county, circuit or municipal court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed and the charges were dropped or there was no disposition of such case. Miss. Code Ann. 99-19-71(4). There is no question that Mr. Jones plead guilty to and was convicted of the crime of murder. He served time in prison; he was released when Governor Musgrove indefinitely suspended his sentence, and he was granted a full and unconditional pardon of his conviction by Governor Barbour. The exclusive power of the Governor to grant pardon was affirmed by this Court on March 8, 2012. In re Hooker, 87 So.3d 401 (Miss. 2012). There is likewise no question that the crime of murder is not one of the crimes specified in Section 99-19-71 (2) for the privilege of expunction after conviction. The sole question to be determined by this appeal is whether a pardoned felony conviction of any type is eligible for or required to be expunged pursuant to Section 99-19-71 (4). The power to grant the pardon rests exclusively with the executive branch. The legislature has resisted, throughout our state's history, to attempt to limit or define the power of pardon granted to the executive branch by the Mississippi Constitution. However, legislative restraint has not been the case with several other state's legislatures. For instance, in Illinois v. Thon, 746 N.E. 2d 1225 (111.2001), expungement based upon a governor's pardon was denied because the legislature specifically enacted a statute that disallowed expungement based upon a pardon. The state legislature later amended that statute to allow expungement based upon a pardon, but only if the pardon specifically authorized it. Obviously Section 97-19-71 (4) includes no such prohibition or restriction, nor has the Mississippi legislature ever attempted to create a subclass of pardons for 3
which expungement was unavailable. In Delaware v. Skinner, 632 A.2d 82 (Del. 1993), expungement of a pardoned felony was refused by the Supreme Court of Delaware. In that case, Delaware's statute allowed expungement only if a person was acquitted, a nolle prosequi was entered by the State, or the charge was otherwise dismissed. The declared purpose of the Delaware statute was to protect innocent persons from damage from unfounded or unproven criminal proceedings. In his case, Skinner had plead guilty. His charge was neither acquitted, nolle prosequi, or dismissed. He did not fit within the class of persons which were specifically meant to be protected by the Delaware legislature. Again, Section 97-19-71 (4) of the Mississippi Code contains no such restrictions or stated purpose. In Harscher v. Kentucky, 327 S.W. 3d 519 (Ky. App. 2010), the Kentucky Court of Appeals refused to allow expungement of a pardoned criminal conviction. The Court in Harscher examined its own precedents wherein it had allowed the use of pardoned convictions to attack a witness's credibility or a person's fitness to practice law. Based upon this, the Court determined that, in Kentucky, while a pardon removes legal punishment and restores civil rights, it does not wipe out guilt or the fact of conviction. The Kentucky court did note that there were several sister jurisdictions that had concluded that a pardoned individual is entitled to have his criminal record expunged. State v. Cope, 676 N.E.2d 141 (Ohio 1996); State v. Bergman, 558 N.E. 2d 111 (Ind. ct. App.1990); Commonwealth v. C.S., 534 A.2d 1053 (Pa.1987). However, Kentucky determined that it was bound to follow its own precedents, and it therefore denied the expungement of the pardoned conviction. It is apparent from the Court's discussion in Harscher that Kentucky's jurisprudence did not contain 4
the type of language which this Court has set forth as law in the State of Mississippi in Ex Parte Crisler, 132 So.2d 103 (Miss. 1931). Unlike Kentucky, the Mississippi Supreme Court has consistently defmed the pardon powers and effects of pardon in the broadest terms possible. As referred to in the Kentucky decision, the Court of Appeals of Indiana clearly stated that expungement was required to fully effectuate a pardon granted by the Governor. State v. Bergman, 558 N.E. 2d 1111 (Ind. 1990). In Bergman, the Court recognized that Indiana's expungement statute did not apply to post-conviction pardons, but found that the dispositive issue was the effect a pardon has on a conviction. Bergman, like Harscher, acknowledged that states across the country reached different conclusions on the issue. However, the Bergman court concluded that a Governor's pardon obliterates the finding of guilt. The Indiana Governor's pardon of Bergman was unconditional, and the Court found it had no choice but to clear Bergman's name by expunging his record in order to carry out the executive mandate. Critical to the Bergman court's ruling was Commonwealth v. C.S., 534 A. 2d 1053 (pa. 1987) and Commonwealth v. Sutley, 378 A.2d 780 (Pa. 1977), in which the Pennsylvania Supreme Court stated as follows:... [a pardon is] the exercise of the sovereign's prerogative of mercy. It completely frees the offender from the control of the State. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eyes of the law, he is thereafter as innocent was if he had never committed the offense. Commonwealth v. Sutley, 378 A.2d 780 (Pa. 1977). The Sutley court went on to state that"... there is no way that the State can retain the record ofa former criminal who is as innocent as ifhe had never committed the offense. A pardon 5
without expungement is not a pardon." Id (emphasis added). Not surprisingly, 45 or more years before Kentucky, Indiana, or Pennsylvania, the Mississippi Supreme Court determined the limits of the Governor's pardon. This Court very succinctly stated:... 'a pardon reaches both the punishment prescribed for the offence, and the guilt of the offender, 'and that 'it releases the punishment and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he never committed the offence.' 'If granted after conviction, it removes the penalties and disabilities, and restores him (the convict) to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.'... A pardon by the governor is an act of sovereign grace, proceeding from the same source which makes conviction of crime a ground of exclusion from suffrage. The act of absolution is of as high derivation and character as the act of proscription. The pardon must be held to rehabilitate the person in all his rights as a citizen, and to deny to any officer of the state the right to impute to him the fact of his conviction. After the pardon, he is as if he was never convicted. It shall never be said of him that he was convicted The pardon obliterates the fact of conviction, and makes it as if it never was. " Ex Parte Crisler, 132 So.2d 103 (Miss. 1931) (emphasis added). Interestingly, prior to the decision of the Circuit Court in Mr. Jones's case, other Circuit Courts in Mississippi had granted expungements of pardoned murder and manslaughter convictions pursuant to the Crisler decision. Copies of those expungement orders were introduced as exhibits during the hearing in Mr. Jones's case and were referred to during argument (R.E. 12-16). After Governor Barbour granted the pardon to Mr. Jones of his conviction for murder, he was no longer convicted of murder. He has, therefore, been arrested and released; the case was not dismissed nor the charge dropped; and there is no disposition of the charge against him. He 6
qualifies for expungement pursuant to Miss. Code Ann. 99-19-71 (4), and the Circuit Court was obligated pursuant to the statute and the Governor's broad constitutional authority to grant his expungement request. CONCLUSION The Circuit Court erred in its ruling that it lacks authority to grant an expungement to Mr. Jones. Mr. Jones is, as a matter of law, entitled to full, complete and unconditional pardon, which includes expunging his record for the offense of which he was pardoned. The Mississippi Supreme Court found in Ex Parte Crisler, 132 S.2d 103 (Miss. 1931) that a pardon absolves the party from all of the legal consequences of his crime and conviction, direct and collateral. (emphasis added). The language of this Court in Crisler could not be more clear. Therefore, the result of this appeal depends upon whether Crisler is still the law of Mississippi. Miss. Code Ann. 99-19-71 (4) requires that courts expunge the record of someone when there was "no disposition of such case." The Governor's pardon erased all consequences of the crime, which clearly includes the "disposition" of the case; therefore, the decision below should be reversed and rendered, and Mr. Jones's record should be expunged. RESPECTFULLY SUBMITTED, /s/ Thomas M. Fortner Thomas M. Fortner, Esq. LOWREY & FORTNER, P.A. 525 Corinne Street Hattiesburg, MS 39401 7
CERTIFICATE OF SERVICE I, Thomas M. Fortner, do hereby certify that I have this date caused to be mailed, postage prepaid, a true and correct copy of the above and foregoing Brief of Appellant to Honorable M. James Chaney, Jr., Circuit Court Judge at Post Office Box 351, Vicksburg, Mississippi 39181-0351, to Richard (Ricky) Smith, Jr., Esquire, District Attorney at Post Office Box 648, Vicksburg, Mississippi 39181 and to Jim Hood, Esquire, Attorney General for State of Mississippi at 550 High Street, Suite 1200, Jackson, Mississippi 39205-5025. THIS the 6 th day of May, 2014. lsi Thomas M. Fortner Thomas M. Fortner 8