                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-CA-01217-SCT

REBECCA HENTZ a/k/a EMILY REBECCA
HENTZ

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          06/18/2013
TRIAL JUDGE:                               HON. JAMES MCCLURE, III
COURT FROM WHICH APPEALED:                 TALLAHATCHIE COUNTY CIRCUIT
                                           COURT
ATTORNEY FOR APPELLANT:                    TOMMY WAYNE DEFER
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LISA L. BLOUNT
NATURE OF THE CASE:                        CIVIL - OTHER
DISPOSITION:                               AFFIRMED - 12/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       KING, JUSTICE, FOR THE COURT:

¶1.    This Court is presented with the following issue: whether a convicted felon is entitled

to an expungement of her conviction after receiving an executive pardon. Because there is

no statutory authority in Mississippi for the courts to order an expungement under these

circumstances, we affirm the trial court’s order denying the request for expungement in

today’s case.
                                           FACTS

¶2.    On March 10, 2000, the Tallahatchie County Grand Jury indicted Rebecca Hentz for

one count of conspiracy to manufacture methamphetamine and two counts of attempt to

manufacture methamphetamine. On September 25, 2000, Hentz pleaded guilty to one count

of attempt to manufacture methamphetamine. The Circuit Court of the First Judicial District

of Tallahatchie County sentenced Hentz to thirty years, suspended, unsupervised probation,

and a $5,000 fine. The trial court remanded to the file the other counts in Hentz’s indictment.

¶3.    On January 10, 2012, Governor Haley Barbour granted Hentz a “full, complete, and

unconditional pardon” for the attempt-to-manufacture-methamphetamine conviction. Later

in 2012, on October 2, Hentz filed a Motion to Expunge Record, claiming that the records

of her conviction should be expunged because she had received a pardon. On May 20, 2013,

Hentz filed an Amended Motion to Expunge Record, which included additional support for

the contention that the records of her conviction should be expunged. After hearing oral

argument from Hentz’s counsel, the trial court denied her motion. Hentz then timely

appealed to this Court.

                                        ANALYSIS

¶4.    Hentz raises one issue on appeal: whether a convicted felon may have her criminal

record expunged after receiving an executive pardon.1

¶5.    Expungement is statutory in nature, and the Mississippi Legislature has “authorized

expungement of criminal offender records in limited cases . . . .” Caldwell v. State, 564 So.



       1
       Polk v. State, __ So. 3d __, 2014 WL 5035942 (Miss. Oct. 9, 2014), a case in which
the mandate has not issued, addresses the same issue as is presented in today’s case.

                                              2
2d 1371, 1372 (Miss. 1990). As an example, Mississippi Code Section 99-19-71 permits

criminal defendants to apply for expungement in a number of circumstances: (1) persons

convicted of a misdemeanor as a first offender; (2) persons convicted of certain felonies as

a first offender;2 (3) and persons in “any case in which an arrest was made, the person

arrested was released and the case was dismissed or the charges were dropped or there was

no disposition of such case.” See also Miss. Code Ann. § 99-15-59 (Rev. 2007) (expungment

of misdemeanor charges); Miss. Code Ann. § 99-15-57(2) (Rev. 2007) (“Upon petition

therefor, the court shall expunge the record of any case in which an arrest was made, the

person arrested was released and the case was dismissed or the charges were dropped or there

was no disposition of such case.”); Miss. Code Ann. § 99-23-23 (Rev. 2007) (expungement

upon completion of drug court program).

¶6.    Hentz concedes that there is no statutory provision for expungement in cases of a

pardon. Rather than claiming she is statutorily entitled to have her criminal record expunged,

Hentz claims that the nature of a pardon itself should permit the expungement. In support

of this proposition, Hentz quotes Jones v. Board of Registrars, 56 Miss. 766 (1879). In

Jones, a convicted felon received a presidential pardon for federal embezzlement charges and

subsequently was denied voter registration. Id. at 766. Finding that Jones might register to

vote after the pardon, this Court stated:

       If granted after conviction, [the pardon] removes the penalties and disabilities,
       and restores him [the convict] to all his civil rights; it makes him, as it were,



       2
       Hentz’s conviction – attempt to manufacture methamphetamine under Mississippi
Code Section 97-1-7 – is not one of the specific felonies listed in Section 99-19-71. See
Miss. Code Ann. § 97-1-7 (Rev. 2014).

                                              3
       a new man, and gives him a new credit and capacity. . . . A pardon is an act
       of grace by which an offender is released from the consequences of his
       offense, so far as such release is practicable and within the control of the
       pardoning power, or of officers under its direction. In contemplation of law,
       it so far blots out the offence, that afterwards it cannot be imputed to him to
       prevent the assertion of his legal rights. A pardon of treason or felony, even
       after an attainder, so far clears the party from the infamy, and all other
       consequences thereof, that he may have an action against any who shall
       afterwards call him traitor or felon; for the pardon makes him, as it were, a
       new man.

Id. at 768 (internal citations and quotations omitted). Although Jones discusses the after-

effects of pardon, it does not specifically address expungement. See id.

¶7.    Hentz also cites Ex parte Crisler, 159 Miss. 247, 132 So. 103 (1931), in support of

her contention that the nature of a pardon should permit the trial court to expunge her

criminal record. While Crisler does state that a “full pardon absolves the party from all the

legal consequences of his crime and his conviction, direct and collateral; including the

punishment, whether of imprisonment pecuniary penalty, or whatever else the law has

provided;” the opinion expressly limits itself to cases of attorney disbarment. Id. at 103-04

(quoting 8 Bishop’s Criminal Law § 916) (“What we here hold, and all that we do hold, is

that a full pardon absolves an attorney at law from all the consequences of an order of

disbarment . . . .”).

¶8.    Jones, 56 Miss. 766, and Crisler, 159 Miss. 247, both cite Ex parte Garland, 71 U.S.

333, 18 L. Ed. 366 (1866), in which the United States Supreme Court also concluded that

pardon “releases the punishment and blots out the existence of guilt.” The language in

Garland, however, has since been held to be dicta; and more recent caselaw holds that a

pardon does not “blot out” the existence of guilt:



                                             4
       But modern case law emphasizes . . . that this historical language was dicta and
       is inconsistent with current law. See In re North, 62 F. 3d 1434, 1437 (D.C.
       Cir. 1994). A pardon in no way reverses the legal conclusion of the court; it
       “does not blot out guilt or expunge a judgment of conviction.” North, 62 F.
       3d at 1437; see also Nixon v. United States, 506 U.S. 224, 232, 113 S. Ct. 732,
       122 L. Ed. 1 (1993) (“a pardon is in no sense an overturning of a judgment of
       conviction by some other tribunal”); Burdick v. United States, 236 U.S. 79,
       94, 35 S. Ct. 267, 59 L. Ed. 476 (1915) (a pardon “carries an imputation of
       guilt”). The effect of a pardon is not to prohibit all consequences of a
       pardoned conviction, but rather to preclude future punishment for the
       conviction. See Nixon, 506 U.S. at 232, 113 S. Ct. 732; Bjerkan v. United
       States, 529 F. 2d 125, 127-28 (7th Cir. 1975).

Hirschberg v. Commodity Futures Trading Comm’n, 414 F. 3d 679, 682 (7th Cir. 2005)

(emphasis in original); see also Fletcher v. Graham, 192 S.W.3d 350 (“[W]hile a pardon

will foreclose punishment of the offense itself, it does not erase the fact that the offense

occurred, and that fact may later be used to pardonee’s detriment.”).

¶9.    Further, recent caselaw supports the contention that, absent statutory authority,

expungement is not permitted after a pardon. In Eubanks v. State, 53 So. 3d 846 (Miss. Ct.

App. 2011), a defendant with a driving-under-the-influence conviction requested that the

court consider an “equitable expungement” in cases where expungement was not statutorily

provided. The Court of Appeals rejected this argument, finding that trial courts had the

power to expunge a felony conviction pursuant to a guilty plea only under certain statutory

conditions. Id. at 848. See also Turner v. State, 876 So. 2d 1056, 1059 (Miss. Ct. App.

2004) (recognizing that circuit courts lack inherent power to order expungement of criminal

records).




                                              5
¶10.   Although this Court has not directly addressed the issue presented in today’s case,3

the Mississippi Attorney General’s Office has addressed this exact issue. See Smith, 2012

Op. Att’y Gen. 337, 2012 WL 3611766 (Miss. A.G. Aug. 10, 2012). The Attorney General

was presented with the following question: “Does receiving a pardon from the Governor

allow the defendant to then request that the record of the conviction, which includes the

arrest, indictment, conviction, and sentence be expunged?” Id. The opinion recognizes that

“there is no statutory or constitutional authority providing for the expungement of an offense

as a result of a pardon by the Governor.” 4 Id. The dissent emphasizes that Article 5, Section

124 of the Constitution of the State of Mississippi empowers the Governor to grant reprieves

and pardons, and that to give that section effect, an expungement must go part and parcel

with the pardon. However, Article 5, Section 124, unlike the U.S. constitution and that of

some other states,5 limits the Governor’s pardon power by mandating that “no pardon shall

be granted before conviction.” Miss. Const. art. 5, § 124. Thus, the constitution specifies that

no pardon may be granted until a record of the crime is created via conviction. The

Legislature has not chosen to negate this record required by the constitution by providing for




       3
           See fn. 1 supra.
       4
        The dissent argues that Mississippi Code Section 99-15-57(2) provides statutory
authority for expungement in this case, because it provides for expungement when “an arrest
was made, the person arrested was released and the case was dismissed or the charges were
dropped or there was no disposition of such case.” We point out that none of those situations
apply. The case was not dismissed, the charges were not dropped, and the case was disposed
of via Hentz’s conviction. Indeed, each of these situations are applicable only to cases in
which no conviction exists, and thus are clearly inapplicable here.
       5
           See U.S. Const. Art. II § 2, cl. 1; Fletcher v. Graham, 192 S.W.3d 350 (Ky. 2006).

                                               6
expungement in the case of a pardoned offense, indicating that the history behind the offense

should be retained unless or until the Legislature provides otherwise.

¶11.     Because there is no statutory basis in Mississippi for an expungement after a criminal

defendant receives an executive pardon, the trial court in today’s case did not err in denying

Hentz’s motion to expunge her criminal record. As such, we affirm the judgment of the trial

court.

                                       CONCLUSION

¶12.     For the reasons discussed above, we affirm the judgment of the Circuit Court of the

First Judicial District of Tallahatchie County.

¶13.     AFFIRMED.

    WALLER, C.J., AND PIERCE, J., CONCUR. RANDOLPH, P.J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.,
CHANDLER AND COLEMAN, JJ. LAMAR, J., NOT PARTICIPATING.

          RANDOLPH, PRESIDING JUSTICE, SPECIALLY CONCURRING:

¶14.     Justice King’s opinion is not only well-stated and most persuasive, it reaches the same

conclusion agreed to by a majority of the members of this Court, with all nine justices

participating, in a prior case. See Polk v. State of Mississippi, 2013-CA-00701-SCT (Oct. 9,

2014) (reh’g denied Dec. 4, 2014). In Polk, five justices agreed that no authority exists under

this Court’s caselaw or our state’s statutes allowing for the expungement of the record of a

criminal conviction for which a pardon was granted. In today’s case, the eight justices

participating are deadlocked on the same issue.




                                                7
¶15.   Thus, I am constrained to specially concur and express my view that the issuance of

a judgment of affirmance is the appropriate disposition of the case sub judice. Today, four

justices agree to affirm the trial court’s judgment, and four justices disagree. Thus, the

judgment of the trial court should be affirmed. See Rockett Steel Works v. McIntyre, 15 So.

2d 624 (Miss. 1943) (“trial court must be, and is, affirmed”).

¶16.   This disposition was first articulated by Chief Justice Marshall for the United States

Supreme Court. Chief Justice Marshall wrote:

       No attempt will be made to analyze [the parties’ arguments and cited cases],
       or to decide on their application to the case before us, because the Judges are
       divided respecting it. Consequently, the principles of law which have been
       argued cannot be settled; but the judgment is affirmed, the court being divided
       in opinion upon it.

Etting v. Bank of United States, 24 U.S. 59, 78, 11 Wheat. 59, 6 L. Ed. 419 (1826). In

Durant v. Essex Co.,74 U.S. 107, 7 Wall. 107, 19 L. Ed. 154 (1868), addressing the effect

of affirmance by a divided court, Justice Field wrote that:

       There is nothing in the fact that the judges of this court were divided in
       opinion upon the question whether the decree should be reversed or not, and,
       therefore, ordered an affirmance of the decree of the court below. The
       judgment of affirmance was the judgment of the entire court. The division of
       opinion between the judges was the reason for the entry of that judgment; but
       the reason is no part of the judgment itself.

Durant, 74 U.S. at 110. If division of opinion is the reason for the judgment, what purpose

do the conflicting opinions serve? The principles of law argued cannot be settled by eight

evenly divided justices, and the conflicting opinions provide no authority for the

determination of other cases.

¶17.   The U.S. Supreme Court has explained that:



                                             8
       it is obvious that that which has been done must stand unless reversed by the
       affirmative action of a majority. It has therefore been the invariable practice
       to affirm, without opinion, any judgment or decree which is not decided to be
       erroneous by a majority of the court sitting in the cause. . . . [A]n affirmance
       by an equally divided court is . . . a conclusive determination and adjudication
       of the matter adjudged; but the principles of law involved not having been
       agreed upon by a majority of the court sitting prevents the case from becoming
       an authority for the determination of other cases, either in this or in inferior
       courts.

Hertz v. Woodman, 218 U.S. 205, 212-14, 30 S. Ct. 621, 622-23, 54 L. Ed. 1001 (1910)

(emphasis added).

¶18.   Thus, as the judgment of the Circuit Court of Tallahatchie County has not been

decided to be erroneous by a majority of the justices sitting in this case, we should affirm

without opinion.

       KITCHENS, JUSTICE, DISSENTING:

¶19.   The breadth of Mississippi common law regarding the effect of a gubernatorial pardon

persuades me that Hentz is entitled to an expungement of her criminal record. Because my

learned colleagues in the plurality have reached a contrary conclusion, I respectfully dissent.

¶20.   Hentz received the following pardon on January 10, 2012:

       NOW, THEREFORE, I, Haley Barbour, Governor of the State of
       Mississippi, under and by virtue of the authority vested in me by the
       Constitution and Laws of this State, do hereby grant to Rebecca Hentz née
       a/k/a Rebecca Whatley a/k/a Rebecca Hentz a full, complete and unconditional
       pardon for the crime and conviction named herein; and henceforth, shall be
       absolved from all legal consequences of this crime and conviction.

(Emphasis added.) This Court’s longstanding jurisprudence regarding the scope of executive

pardons tracks that of the United States Supreme Court:

       The doctrine of the authorities is, that “a pardon reaches both the punishment
       prescribed for the offence, and the guilt of the offender,” and that “it releases

                                              9
        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 had never committed the offense.” “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.” Ex parte Garland, [71 U.S. 333, 18
        L. Ed. 366,] 4 Wall. 333, 380 [(1866)]; United States v. Padelford, [76 U.S.
        531, 19 L. Ed. 788,] 9 Wall. 531 [(1869)]; United States v. Klein, [80 U.S.
        128, 20 L. Ed. 519,] 13 Wall. 128 [(1871)]; Carlisle v. United States, [83 U.S.
        147, 21 L. Ed. 426,]16 Wall. 147 [(1872)]; Knote v. United States, 95 U.S.
        149[, 5 Otto 149, 24 L. Ed. 442 (1877)]. In the case last cited, it is said that “a
        pardon is an act of grace by which an offender is released from the
        consequences of his offence, so far as such release is practicable and within the
        control of the pardoning power, or of officers under its direction.” “In
        contemplation of law, it so far blots out the offence . . . .”

Jones v. Bd. of Registrars of Alcorn County, 56 Miss. 766, 768, 31 Am. Rep. 385 (1879)

(emphasis added). Likewise, in Ex Parte Crisler, this Court maintained the rule from Jones

that:

        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, 159 Miss. 247, 250, 132 So. 103 (1931) (quoting Jones, 56 Miss. at 768)

(emphasis added).

¶21.    The plurality attempts to distinguish Crisler: “the opinion expressly limits itself to

cases of attorney disbarment.” Crisler, decided in 1931, did involve an attorney, disbarred

from the practice of law following a conviction of embezzlement, who sought reversal of the

order of disbarment. Crisler, 159 Miss. at 249. Likewise is true, as the plurality notes, that

this Court held that “a full pardon absolves an attorney at law from all the consequences of

                                                10
an order of disbarment . . . as part of the punishment for the commission of a crime.” Id. at

251. But Crisler relied on a broader rule articulated by this Court in the 1878 Jones case,

which involved restoration of suffrage to a convicted person following a presidential pardon.

Jones, 56 Miss. at 771. The Jones Court cited precedents in which the United States

Supreme Court contemplated the extent of the presidential pardons offered by Presidents

Lincoln and Johnson to persons involved in rebellion against the United States during the

1860s. In U.S. v. Padelford, for instance, Chief Justice Salmon P. Chase opined that, “[i]n

the case of Garland, this court held the effect of a pardon to be such ‘that in the eye of the

law the offender is as innocent as if he had never committed the offence’ . . . .” U.S. v.

Padelford, 76 U.S. 531, 543, 19 L. Ed 788, 9 Wall. 531 (1869) (quoting Garland, 4 Wall.

at 380) (emphasis added).

¶22.   In spite of its broad, sweeping language, the plurality recites that “[t]he language in

Garland, however, has since been held to be dicta; and more recent caselaw holds that a

pardon does not ‘blot out’ the existence of guilt . . . .” (citing Hirschberg v. Commodity

Futures Trading Comm’n, 414 F. 3d 679, 682 (7th Cir. 2005)). With respect, an opinion

from the United States Court of Appeals for the Seventh Circuit is of no moment to this

Court’s analysis of the effect given an executive pardon under controlling Mississippi case

law. Beyond that, one of the cases upon which the Seventh Circuit relied to support its

position that the Garland language more recently has been rendered dicta is Burdick v.

United States, 236 U.S. 79, 94, 35 S. Ct. 267, 59 L. Ed. 476 (1915). There, President

Woodrow Wilson offered Burdick a pardon in exchange for his testimony. Burdick, 236 U.S.

at 85. Burdick refused the pardon, then was held in contempt and incarcerated. Id. at 87. The

                                             11
question before the United States Supreme Court, which ultimately ordered Burdick

discharged from custody, involved the distinction between legislative immunity and a

presidential pardon:

       The latter carries an imputation of guilt; acceptance a confession of it. The
       former has no such imputation or confession. It is tantamount to the silence of
       the witness. It is noncommittal. It is the unobtrusive act of the law given
       protection against a sinister use of his testimony, not like a pardon, requiring
       him to confess his guilt in order to avoid a conviction of it.

Burdick, 236 U.S. at 95. But Burdick involved a preconviction pardon which Burdick

refused; the case is silent regarding whether a pardon entitles the pardonee to an

expungement.

¶23.   The plurality’s citation of expungement cases from the Mississippi Court of Appeals,

likewise, is not helpful regarding the effect of a gubernatorial pardon on a convict’s request

for expungement. Neither Eubanks v. State, 53 So. 3d 846 (Miss. Ct. App. 2011), nor

Turner v. State, 876 So. 2d 1056, 1059 (Miss. Ct. App. 2004), addresses the question that

is before this Court today: whether a gubernatorial pardon entitles a pardonee to an

expungement. The opinion from the Mississippi Attorney General referenced by the majority

answers the question in the negative. But in the context of an adversarial system in which the

Attorney General is an interested party in this very case, his opinion, while interesting, is far

from dispositive.

¶24.   The plurality further opines that, “[e]xpungement is statutory in nature, and the

Mississippi Legislature has ‘authorized expungement of criminal offender records in limited

cases . . . .’ Caldwell v. State, 564 So. 2d 1371, 1372 (Miss. 1990).” But Mississippi Code

Section 99-15-52(2) (Rev. 2007) provides that, “[u]pon petition therefor, the court shall

                                               12
expunge the record of any case in which an arrest was made, the person arrested was released

and the case was dismissed or the charges were dropped or there was no disposition of such

case.” Section 99-15-57(2), coupled with the breadth of the common law language articulated

in Crisler that a gubernatorial pardon “makes [the fact of conviction] as if it never was,”

mandates expungement. Crisler, 159 Miss. at 250.

¶25.   Article 5, Section 124, of the Constitution of the State of Mississippi empowers the

governor “to grant reprieves and pardons.” Today, the plurality diminishes the effect of

gubernatorial pardons in Mississippi. That which previously was regarded as “an act of

sovereign grace” now is relegated to a mere piece of paper emblazoned with the dubious

phrase “absolved from all legal consequences of this crime and conviction.” I, therefore,

dissent.

       DICKINSON, P.J., CHANDLER AND COLEMAN, JJ., JOIN THIS OPINION.




                                            13
