            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                       June 19, 2012 Session

   JOSE RODRIGUEZ A.K.A. ALEX LOPEZ1 v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                             No. 4345   Seth Norman, Judge


                   No. M2011-01485-CCA-R3-PC - Filed January 7, 2013




The petitioner, Jose Rodriguez, brings a post-conviction challenge to his guilty plea, asserting
that he received the ineffective assistance of counsel. The petitioner claims that, under
Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010), his counsel was deficient in failing to
advise him regarding the deportation consequences of his guilty plea. The petition was filed
more than one year after the guilty plea, and the post-conviction court denied relief based on
the statute of limitations pursuant to Tennessee Code Annotated section 40-30-102(a). We
conclude that a post-conviction action does not lie when the petitioner’s record has been
expunged and no conviction exists. In addition, the trial court was correct in concluding the
petition was time-barred. Accordingly, we affirm the post-conviction court’s summary
dismissal.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which and T HOMAS T.
W OODALL, J., joined. J OSEPH M. T IPTON, P.J., filed a concurring and dissenting opinion.

Sean Lewis and Patrick G. Frogge, on appeal, and Patrick T. McNally, Nashville, Tennessee,
at trial, for the appellant, Jose Rodriguez a.k.a Alex Lopez.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Dan Hamm, Assistant District
Attorney General, for the appellee, State of Tennessee.



        1
         The petition for post-conviction relief is styled “Jose Rodriguez a/k/a ‘Jose Lopez.’” However, the
petitioner’s notice of appeal shows it was submitted and signed by “Alex Lopez,” and that is also the style
of the case on appeal. The petitioner’s brief refers in headings to “Alex Rodriguez.”
                                               OPINION


                                 Factual and Procedural History


        The petitioner was cited for patronizing prostitution, a misdemeanor, on August 15,
2007. The petitioner alleges that his trial counsel knew that he was a citizen of Mexico and
a legal resident of the United States and that he had only a rudimentary comprehension of
English. The petitioner alleges that his trial counsel, ignorant of the fact that the crime in
question was an offense of “moral turpitude” subject to automatic deportation despite
expungement, advised him to accept a plea offer involving judicial diversion under
Tennessee Code Annotated section 40-35-313. His attorney did not inform Mr. Rodriguez
regarding the immigration consequences of the plea. He asserts that he would not have
entered a guilty plea if his counsel had advised him of the immigration consequences.
According to his petition, he pled guilty on September 20, 2007, and he successfully
completed judicial diversion.2 On January 8, 2010, an order was entered expunging his
criminal record.

        The petitioner alleges that the crime which was the subject of the expungement is a
crime of “moral turpitude” resulting in automatic deportation. See 8 U.S.C.A. §
1182(a)(2)(A)(i)(I), 1101. The petitioner brought this post-conviction petition on March 31,
2011 – exactly one year after the Supreme Court’s decision in Padilla – asserting that his trial
counsel was ineffective in failing to inform him that he was subject to automatic deportation
as a result of his expunged conviction; asserting that he was entitled to relief under the due
process clause as his guilty plea was not knowing or voluntary due to his ignorance of the
immigration consequences; and asserting that his plea was not knowing or voluntary due to
his inability to understand the proceedings because of his rudimentary knowledge of the
language. While the petitioner does not explicitly allege that he is being deported, he alleges
that his counsel’s deficiency “has resulted in continued immigration ‘punishment,’ both
severe and continuing, including the loss of the right to live and work in the United States.”
The post-conviction court denied the petition, finding that it was time-barred.

        The petitioner appealed, and the State moved to dismiss his appeal based on the fact
that his record had already been expunged in this State. We denied the motion to dismiss so
that the issue could be more fully briefed, but did not, as the petitioner suggests, decide the
merits of the issue. On appeal, the petitioner insists that he received the ineffective


        2
         The petitioner asserts that all of the documents underlying the conviction have been expunged, and
the records related to the petitioner’s conviction were not attached to the petition.

                                                   -2-
assistance of counsel and that his conviction is invalid because it was not knowing and
voluntary due to his counsel’s deficient performance. The petitioner also asserts that his
petition is not time-barred because (1) Padilla created a new rule which applies retroactively
under state law; (2) alternatively, Padilla did not announce a new rule for the purposes of
Teague v. Lane, 489 U.S. 288 (1989) and therefore the old rule applies retroactively; (3) due
process operates to toll the statute of limitations. The State limited its argument to asserting
that the petitioner could not apply for post-conviction relief when his record had been
expunged and there was no conviction from which he could seek relief. The petitioner
counters that an expunged conviction is nevertheless considered a conviction for the purposes
of immigration law and urges us to consider it a conviction also for the purposes of filing a
post-conviction action.

                                           Analysis

        We do not reach the petitioner’s post-conviction claims related to the ruling in Padilla
because his criminal record has been expunged by the State of Tennessee. “The
expungement statute is ‘designed to prevent citizens from being unfairly stigmatized’ by
criminal charges.” State v. L.W., 350 S.W.3d 911, 916 (Tenn. 2011) (quoting State v. Adler,
92 S.W.3d 397, 403 (Tenn. 2002)). Expungement is the removal from certain official records
of the arrest, indictment or information, trial, finding of guilt, and dismissal and discharge.
T.C.A. § 40-35-313(b). “The effect of the order is to restore the person, in the contemplation
of the law, to the status the person occupied before the arrest or indictment or information.”
Id.

        Once the record has been expunged, the discharge and dismissal “shall not be deemed
a conviction for purposes of disqualifications or disabilities imposed by law upon conviction
of a crime or for any other purpose,” except as provided in subsections (b) and (c), related
to evidence at civil trials. T.C.A. § 40-35-313(a)(2). However, evidence of the arrest and
charges does not simply disappear. In addition to certain limited use of an expunged record
as evidence in a civil trial, the statute notes that nonpublic records of the court, of the
Tennessee Bureau of Investigation, or of a local law enforcement agency “shall constitute
official records of plea or verdict and are subject to the subpoena power of the courts of civil
jurisdiction.” T.C.A. § 40-35-313(c). These non-public records are retained by the court for
the purposes of determining eligibility for diversion and potential use as evidence in civil
trials according to the statute. T.C.A. § 40-35-313(a)(2). An expunged record is also kept
by the Tennessee Bureau of Investigation, to which the court is required to send a copy of
the dismissal and order of expungement. T.C.A. § 40-32-101(d)(1). Furthermore, public
records in the context of expungement do not include arrest histories, investigative reports,
intelligence information of law enforcement agencies, confidential files of district attorneys
general, confidential records of the department of children’s services or department of human

                                              -3-
services, or appellate court opinions. T.C.A. § 40-32-101(b)(1)-(2). Statutorily, an expunged
criminal record leaves these traces in its wake.

       The petitioner challenges the constitutionality of his expunged guilty plea under
Tennessee’s Post-Conviction Procedure Act. Post-conviction relief is available “when the
conviction or sentence is void or voidable because of the abridgment of any right guaranteed
by the Constitution of Tennessee or the Constitution of the United States.” T.C.A. §
40-30-103 (emphasis added). Although post-conviction relief depends on demonstrating that
the “conviction or sentence” is void or voidable, the statute relating to expungement provides
that discharge and dismissal “shall not be deemed a conviction for purposes of
disqualifications or disabilities imposed by law upon conviction of a crime or for any other
purpose” with certain exceptions not applicable here. T.C.A. § 40-35-313(a)(2) (emphasis
added). Furthermore, discharge and dismissal “is without court adjudication of guilt.” Id.

        The Tennessee Court of Appeals, examining the propriety of reliance on an expunged
guilty plea in a proceeding to decertify a police officer, found that “a number of state forms
and other documents indicate or imply that a guilty plea under a judicial diversion program
is tantamount to a ‘conviction.’ It is not. An individual who successfully completes a
judicial diversion program under § 40-35-313 has not been ‘convicted’ of any crime. . .”
Wright v. Tenn. Peace Officer Standards and Training Comm’n, 277 S.W.3d 1, 8-9 (Tenn.
Ct. App. 2008). The concurring opinion in Padilla also recognized that a disposition may
not be a “conviction” under state law but still qualify as a “conviction” for immigration
purposes. Padilla, 130 S.Ct. at 1490 n.2 (Alito, J., and Roberts, C.J., concurring) (noting the
intricacies of immigration law and concluding that complexities such as this should not
require counsel to do more than advise that a plea may have adverse immigration
consequences).

         Because the statutory language is clear, we conclude that post-conviction relief is not
available from an expunged record because there is no conviction to challenge. E.g., State
v. Ruff, No. W2004-00438-CCA-R3-CD, 2005 WL 645160, at *5 (Tenn. Crim. App. Mar.
16, 2005) (“Furthermore, the assault charges have now been expunged, so there is no adverse
order from which he could launch any action, such as a direct appeal or a petition for
post-conviction relief.”); King v. State, 29 P.3d 1089, 1091 (Okla. Crim. App. 2001) (finding
that an allegation of a “void or voidable sentence should not have been allowed to be the
basis of a post-conviction proceeding, when the invalid sentence had already been expunged.
. . .”). The petitioner argues that such a reading is at odds with the legislative intent to
“restore the person, in the contemplation of the law, to the status the person occupied before
the arrest or indictment or information.” T.C.A. § 40-35-313(b). Nevertheless, the statute
is unambiguous, and we do not reach the question of legislative intent. Carter v. Bell, 279
S.W.3d 560, 564 (Tenn. 2009) (“When statutory language is clear and unambiguous, we must

                                              -4-
apply its plain meaning in its normal and accepted use . . . and, in that instance, we enforce
the language without reference to the broader statutory intent, legislative history, or other
sources.”). An expunged “conviction” is not a conviction within the meaning of Tennessee’s
Post-Conviction Procedure Act.
        Accordingly, we cannot grant the petitioner any relief, as his record has already been
expunged by the State of Tennessee. However, we note that, under the following Tennessee
appellate decisions on the matter, the petitioner’s claim would in any event be barred by the
statute of limitations. E.g., Guevara v. State, No. W2011-00207-CCA-R3-PC, 2012 WL
938984, at *3 (Tenn. Crim. App. Mar. 13, 2012); Lopez v. State, No. M2011-02349-CCA-
R3-PC, 2012 WL 2394148, at *2-3 (Tenn. Crim. App. June 26, 2012); Cantu v. State, No.
M2011-02506-CCA-R3-PC, 2012 WL 2323243, at *2 (Tenn. Crim. App. June 18, 2012);
Stamegna v. State, No. E2011-00107-CCA-R3-PC, 2011 WL 5971275, at *5 (Tenn. Crim.
App. Nov. 29, 2011); Diotis v. State, No. W2011-00816-CCA-R3-PC, 2011 WL 5829580,
at *2-3 (Tenn. Crim. App. Nov. 17, 2011).

                                      CONCLUSION

       Because statute dictates both that a post-conviction petition must ask for relief from
a “conviction” and that an expunged guilty plea is not a “conviction,” we conclude that an
expunged guilty plea cannot be the subject of post-conviction relief. We affirm the judgment
of the post-conviction court dismissing the petition.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




                                             -5-
