        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 9, 2016

                     STATE OF TENNESSEE v. ANN DODD

               Appeal from the Criminal Court for Williamson County
                    No. I-CR048709    Joseph Woodruff, Judge


                No. M2015-01469-CCA-R3-CD – Filed March 15, 2016


The petitioner, Ann Dodd, appeals the Williamson County Criminal Court‟s denial of her
petition to expunge the record of her 2009 Williamson County General Sessions Court
guilty-pleaded conviction of simple possession of cocaine. Because we conclude that the
petitioner failed to satisfy the requirements of Tennessee Code Annotated section 40-32-
101(g), we affirm the trial court‟s order.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Nathaniel Mills Colburn, Nashville, Tennessee, for the appellant, Ann Dodd.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Kim Helper, District Attorney General; and Tristan Poorman,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               On January 14, 2009, the petitioner entered pleas of guilty in the
Williamson County General Sessions Court to one count of simple possession of cocaine
and one count of first offense driving under the influence (“DUI”) in exchange for
consecutive sentences of 11 months and 29 days, to be served as 20 days‟ incarceration
followed by supervised probation. On March 11, 2015, the petitioner moved the general
sessions court to expunge the records of her conviction of simple possession under the
terms of Code section 40-32-101. The State asked the court to deny the petition, arguing
that the petitioner was not an “eligible petitioner” as that term is used in Code section 40-
32-101.
              The Williamson County General Sessions Court apparently denied the
petition for expunction, but no order appears in the record. A notice of appeal to the
Williamson County Criminal Court references a hearing followed by a summary denial
on April 7, 2015. Via written order filed July 7, 2015, the Williamson County Criminal
Court denied the petition for expunction, finding that the petitioner was not an “eligible
petitioner” under the terms of Code section 40-32-101.

               In this timely appeal, the petitioner challenges the denial of her petition for
expunction, arguing that ambiguity in Code section 40-32-101 “gives this [c]ourt latitude
to allow the expunction of the simple possession cha[r]ge because it accompanies a strict
liability offense.” In the alternative, the petitioner asserts that the State of Tennessee has
breached its contract with the petitioner that she would be entitled to expunction of her
simple possession conviction. The State contends that under the plain language of Code
section 40-32-101, the petitioner is not entitled to expunction.

               Because the sole issue in this appeal involves a question of statutory
construction, our review is de novo, with no presumption of correctness afforded to the
ruling of the trial court. See State v. Pope, 427 S.W.3d 363, 367 (Tenn. 2013); see also
State v. Edmondson, 231 S.W.3d 925, 927 (Tenn. 2007).

               The most basic principle of statutory construction is “„to ascertain and give
effect to the legislative intent without unduly restricting or expanding a statute‟s coverage
beyond its intended scope.‟” Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678
(Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). “Legislative
intent is determined „from the natural and ordinary meaning of the statutory language
within the context of the entire statute without any forced or subtle construction that
would extend or limit the statute‟s meaning.‟” Osborn v. Marr, 127 S.W.3d 737, 740
(Tenn. 2004) (quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). “When the
statutory language is clear and unambiguous, we apply the plain language in its normal
and accepted use.” Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State
v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous
that we may reference the broader statutory scheme, the history of the legislation, or other
sources.” In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn.
Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)).

               The legislature amended Code section 40-32-101 in 2014 and 2015, but the
most recent version of the statute, which became effective on July 1, 2015, see 2015 Pub.
Acts, c. 89, §§ 1, 2, provides, in pertinent part, as follows:

              (g)(1) For purpose of this subsection (g), “eligible petitioner”
              means:
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                    ....

             (B) Except as provided in this subdivision (g)(1)(B), a person
             who was convicted of a misdemeanor offense committed on
             or after November 1, 1989. Misdemeanors excluded from
             consideration are:

                    ....

             (xlv) Section 55-10-401--Driving under the influence of an
             intoxicant;

                    ....

             (E) A person who was convicted of more than one (1) of the
             offenses listed in this subdivision (g)(1), if the conduct upon
             which each conviction is based occurred contemporaneously,
             occurred at the same location, represented a single continuous
             criminal episode with a single criminal intent, and all such
             convictions are eligible for expunction under this part. The
             offenses of a person who is an eligible petitioner under this
             subdivision (g)(1)(E) shall be considered a single offense for
             the purposes of this section so that the person is eligible for
             expunction consideration if all other requirements are met.

T.C.A. § 40-32-101(g)(1)(B),(E).

               The petitioner was arrested and charged with simple possession of cocaine
and DUI on July 23, 2008. According to the affidavit of complaint, a Williamson County
Sheriff‟s Department deputy observed the petitioner driving recklessly and attempted to
effectuate a traffic stop. The petitioner did not stop, but her vehicle eventually left the
roadway and became stuck. When the petitioner attempted to drive off, the vehicle
caught fire. When she was placed under arrest, the petitioner was obviously under the
influence, and she admitted having used cocaine. The petitioner was also in possession
of more than .5 grams of cocaine. The parties agree that the offenses “occurred
contemporaneously” and “occurred at the same location,” but the petitioner asserts that
the offenses did not represent “a single continuous criminal episode with a single
criminal intent” because the offense of DUI contains no scienter requirement. She argues
that the requirement of “a single criminal intent” creates an ambiguity in the statute
because the statute would never allow for the expunction of a strict liability offense that
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occurs simultaneously with an offense that contains a scienter requirement. The
ambiguity thus “exposed,” the petitioner argues that this court should look to the recently
enacted Code section 40-32-101(a)(1)(E) for guidance. That section provides:

              Except as provided in subsection (j), a person is not entitled
              to the expunction of such person‟s records if:

              (i) The person is charged with an offense, is not convicted of
              the charged offense, but is convicted of an offense relating to
              the same criminal conduct or episode as the charged offense,
              including a lesser included offense; provided, however, any
              moving or nonmoving traffic offense shall not be considered
              an offense as used in this subdivision (a)(1)(E);

Id. § 40-32-101(a)(1)(E)(i). This section, she argues, establishes legislative intent “that
moving and non-moving driving offenses are not meant to preclude someone from
ridding other expungable charges from their record.”

               Code section 40-32-101 is simply not open to the contrived interpretation
offered by the petitioner. Code section 40-32-101(g)(1)(E) allows for the expunction of
multiple convictions when “the conduct upon which each conviction is based occurred
contemporaneously, occurred at the same location, represented a single continuous
criminal episode with a single criminal intent, and all such convictions are eligible for
expunction under this part.” Id. § 40-32-101(g)(1)(E). As indicated, the convictions of
simple possession of cocaine and DUI resulted from conduct that occurred
contemporaneously at the same location. Regardless of whether the two offenses could
be part of “a single continuous criminal episode with a single criminal intent” given the
lack of a scienter requirement for DUI, the petitioner is still not entitled to expunction of
the simple possession conviction because all the convictions stemming from the July 23,
2008 incident are not eligible for expunction. Driving under the influence is specifically
excluded from the list of expungable misdemeanor offenses. See id. § 40-32-
101(g)(1)(B)(xlv). The statute requires that for any one of multiple convictions to be
eligible for expunction, “all such convictions” must be eligible for expunction. Id. § 40-
32-101(g)(1)(E). Under the plain and unambiguous terms of the statute, the petitioner is
not entitled to expunction of her simple possession conviction because she is not entitled
to expunction of her DUI conviction. See State v. Ryan M. Delaby, No. E2014-00772-
CCA-R3-CD, slip op. at 6 (Tenn. Crim. App., Knoxville, Apr. 2, 2015).

              Accordingly, the judgment of the trial court is affirmed.



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       _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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