        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 12, 2014

      STATE OF TENNESSEE v. ROGER GORDON BROOKMAN, JR.

            Direct Appeal from the Criminal Court for Davidson County
                     No. 2005-A-31     Monte Watkins, Judge


                 No. M2014-00745-CCA-R3-CD - Filed June 26, 2015


The appellant, Roger Gordon Brookman, Jr., filed a motion in the Davidson County Criminal
Court, seeking expunction of dismissed charges. The trial court denied the motion, and the
appellant appeals. Upon review, we reverse the judgment of the trial court and remand for
expunction of the charges.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed;
                                 Case Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN and R OBERT H. M ONTGOMERY, J R., JJ., joined.

Dawn Deaner, District Public Defender; Emma Rae Tennent and Jerrilyn Manning, Assistant
Public Defenders, for the appellant, Roger Brookman.

Herbert H. Slatery III, Attorney General & Reporter; Michelle L. Consiglio-Young, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Roger Moore,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       On June 21, 2004, Detective William Kaufman stopped the appellant’s vehicle
because of an outstanding warrant against the appellant. The appellant was arrested and later
confessed to the burglary of forty homes. Thereafter, on January 21, 2005, the Davidson
County Grand Jury returned a multi-count indictment against the appellant, charging him
with two counts of burglary, sixteen counts of aggravated burglary, three counts of theft of
property, and one count of unlawful possession of a weapon during an offense. On July 20,
2005, the appellant pled guilty to six counts of aggravated burglary, for which he received
a total effective sentence of eighteen years. Pursuant to the plea agreement, the remaining
charges were dismissed.

       On January 28, 2014, the appellant filed a motion asking the trial court to expunge the
dismissed counts from his record, and a hearing was held. Elaine Ragan, the Division Chief
of the Davidson County Criminal Court Clerk’s Office, testified that the record of a criminal
case consisted of minute entries, dockets, discovery, and reports. Ragan said that the
appellant’s “official records” and “electronic records” reflected that all but six of the twenty-
two charges against him were dismissed.

        Ragan said that when an expunction order was entered, the documents relating to the
dismissed charges were not destroyed but were “heavily redacted.” She asserted that it would
require “intensive effort” by her office to “cross-referenc[e] everything” and to ensure that
only the information relating to the dismissed counts was redacted. When asked whether all
of the counts were “inter-related,” Ragan responded, “Yes, or they wouldn’t be presented in
the same case.” Ragan said that after the redactions, the clerk’s office would be unable to
return the record to the way it was on the day of the appellant’s arraignment.

        The State argued that the legislature’s recent amendments to the expunction statute
indicated “that these types of expungements are not favored and not to be granted.” The
State further argued that ordering expunction would impose a great hardship upon the clerk’s
office. The State contended that the dismissed counts were “inextricably intertwined” with
the counts for which the appellant was convicted and questioned the timing of the appellant’s
motion. Conversely, defense counsel argued that regardless of when the appellant filed his
motion, the statute at the time the appellant was convicted and sentenced was the applicable
statute and would have allowed expunction of the dismissed charges. Defense counsel also
argued that the charges were inter-related by only “the type of charge and the defendant,”
explaining:

                     I will concede that Counts three and four may be
              intertwined, because they shared the same victim. But the other
              counts occurred – they had different victims, they occurred on
              different dates. Some of them alleged home burglaries. One of
              them alleged burglaries that – other than [a] habitation. Some
              of them allege the taking of personal property. So they are . . .
              not so inextricably intertwined as to prevent the court from
              granting this request for expungement.

       After taking the matter under advisement, the trial court found that the cases were

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“impossibly intertwined” and denied the motion. On appeal, the appellant challenges this
ruling.

                                                II. Analysis

       Our analysis of this issue must begin with a determination of the applicable
expunction statute.1 When reviewing issues of statutory construction, we conduct a de novo
review of the trial court’s rulings without any presumption of correctness. See Carter v. Bell,
279 S.W.3d 560, 564 (Tenn. 2009). “When statutory language is clear and unambiguous, we
must apply its plain meaning in its normal and accepted use . . . without reference to the
broader statutory intent, legislative history, or other sources.” Id. Our goal is to “ascertain
and give effect to [the] legislative intent without broadening the statute beyond its intended
scope.” Id. Additionally, “[w]e must presume that the General Assembly is aware of prior
enactments and decisions of the courts when enacting legislation.” Id. Moreover, we
presume that the legislature says what it means and means what it says. State v. Marise, 197
S.W.3d 762, 766 (Tenn. 2006).

       The appellant argues that the expunction statute in effect at the time of his conviction
and sentencing, which was Tennessee Code Annotated section 40-30-101 (2003), should be
applied to his case. The appellant contends that nothing indicates that the legislature
intended for the 2012 version of the statute to be applied retroactively and that to do so would
violate his constitutional protection against ex post facto laws.

       Tennessee Code Annotated section 40-32-101(a)(1) (2003) provides:

                  (a)(1) All public records of a person who has been charged with
                  a misdemeanor or a felony, and which charge has been
                  dismissed, or a no true bill returned by a grand jury, or a verdict
                  of not guilty returned by a jury, and all public records of a
                  person who was arrested and released without being charged,
                  shall, upon petition by that person to the court having
                  jurisdiction in such previous action, be removed and destroyed
                  without cost to such person . . . .

        The legislature amended the expunction statute six times between 2006 and 2012. For
example, legislation that took effect on May 12, 2006, amended subsection (a) to provide that
“[a] person shall not be entitled to the expunction of such person’s records in a particular
case if the person is convicted of any offense or charge, including a lesser included offense

       1
           We note that the trial court did not expressly state which version of the statute it was applying.

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or charge.” Tenn. Code Ann. § 40-32-101(a)(1)(E) (2006).

       In 2012, the legislature again amended the statute to provide:

                     (A) All public records of a person who has been charged
              with a misdemeanor or a felony shall, upon petition by that
              person to the court having jurisdiction in the previous action, be
              removed and destroyed without cost to the person, if:

                     (i) The charge has been dismissed . . . .

                     ....

                    (E) A person is not entitled to the expunction of such
              person’s records if:

                     ....

                     (ii) The person is charged with multiple offenses or
              multiple counts in a single indictment and is convicted of:

                     (a) One (1) or more of the charged offenses or counts in
              the indictment; or

                     (b) An offense relating to the same criminal conduct or
              episode as one (1) of the offenses charged in the indictment,
              including a lesser included offense.

Tenn. Code Ann. § 40-32-101(a)(1) (2012). The State maintains that the 2012 amendment
should be applied to deny the motion for expunction, contending that the statute indicates the
legislature intended for it to apply retroactively.

        The State acknowledges that in State v. Hanners, 235 S.W.3d 609 (Tenn. Crim. App.
2007), this court stated that the proper statute to be applied in a case for expunction was the
statute in effect at the time of conviction and sentencing. Hanners was indicted in January
2002 for abuse of a child under six years old, a Class D felony. Id. at 610. In September
2002, a jury convicted him of the lesser-included offense of assault, a Class A misdemeanor,
and in January 2003, he was sentenced to eleven months and twenty-nine days. Id.
Thereafter, Hanners filed a motion for expunction of the child abuse charge, arguing that he
had been acquitted of that offense. Id. The trial court denied the motion, finding that

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“Tennessee Code Annotated section 40-32-101, as amended May 22, 2003, . . . provided that
expungement of records regarding a charged offense was not permissible when a defendant
was convicted of a lesser-included offense of the charged offense.” Id.

        Hanners appealed, and this court acknowledged that “unless the legislature clearly
indicates otherwise, statutes are presumed to operate prospectively.” Id. at 612.
Nevertheless, we observed that remedial or procedural statutes may be applied retroactively
in certain cases and that the expunction statute was arguably remedial in nature. Id. at 612-
13. This court noted, however, that “applying a statute retroactively in a criminal case may
implicate constitutional prohibitions against ex post facto laws, which are forbidden under
both the United States and Tennessee Constitutions.” Id. at 613. This court ultimately
concluded that the 2003 amendment could not be applied in Hanners’s case for three reasons.
First, this court observed that at the time of Hanners’s conviction and sentencing, he was
entitled to expunction. Id. at 612 (citing State v. Adler, 92 S.W.3d 397, 402-03 (Tenn.
2002)). Second, we concluded that retroactive application of the amendment impaired
Hanners’s reasonable expectations based upon the law at the time of his conviction and
sentencing. Id. Third, we concluded that to apply retroactively the amended expunction
statute violated the constitutional protection against ex post facto laws because, at a
minimum, it altered Hanners’s situation to his disadvantage by unduly burdening him with
the societal stigma attached to a felony. Id. at 613-14. Based upon the foregoing, this court
reversed the trial court’s ruling and remanded for entry of an order of expunction. Id. at 614.

       The State contends that the holding in Hanners was “narrowed to the context of
expunction involving a lesser-included offense conviction.” However, the reasoning in
Hanners, i.e. that retroactive application of the statute would impair the reasonable
expectations of the appellant at the time of his conviction and sentencing and would
implicate constitutional protections against ex post facto laws by creating a situation
disadvantageous to the appellant, holds true as much with dismissed charges as it does when
a defendant has been convicted of a lesser-included offense. Accordingly, we find the State’s
argument unpersuasive.

        Next, the State observes that subsection (g) of the 2012 statute specifies that
convictions of certain Class E felonies and certain misdemeanors that were committed on or
after November 1, 1989, are eligible for expunction. The State argues that “[t]he
legislature’s specific use of dates in the subsection evidence[s] its intent for the statute’s
application to be retroactive.” The State contends that “[b]ecause a defendant cannot obtain
expungement through Tenn. Code Ann. § 40-32-101(g)(1)(A) or Tenn. Code Ann. § 40-32-
101(g)(1)(B) without first meeting the criteria of Tenn. Code Ann. § 40-32-101(a)(1), the
subsections must be read in conjunction.” However, the State has misconstrued subsection
(g).

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        Our supreme court has recognized that “[t]he 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 Adler, 92 S.W.3d at 403). Accordingly, the
expunction statute “provided a mechanism for expunging the criminal records of persons
whose criminal charges were dismissed, whose charges resulted in acquittal, or who
completed a diversion program”; however, it typically “did not permit the expungement of
criminal records for a person who was convicted of a crime . . . .” David Scott Blackwell v.
Bill Haslam, No. M2012-01991-COA-R3-CV, 2013 WL 3379364, at *13 (Tenn. Crim. App.
at Nashville, June 28, 2013), perm. to appeal denied, (Tenn. Oct. 16, 2013). With the
addition of subsection (g) in 2012, the legislature permitted an “eligible petitioner” convicted
of certain non-violent misdemeanors or felonies, to petition for expunction of their
convictions. Id. In other words, subsection (g) applies to an entirely new class of petitioners
eligible for expunction of their criminal records, and it should not to be read in conjunction
with subsection (a). Therefore, the State’s argument is unavailing.

       Moreover, we note that Hanners, which proscribed retrospective application of the
expunction statute, was issued in 2007. “The legislature is presumed to know the state of
existing case law.” State v. Powers, 101 S.W.3d 383, 394 (Tenn. 2003). The legislature did
not specify in later amendments to the expunction statute that they were to be applied
retroactively, despite having the opportunity to do so. See State v. Joshua Shane Hayes, No.
M2012-01768-CCA-R3-CD, 2013 WL 3378320, at *7 (Tenn. Crim. App. at Nashville, July
1, 2013). Therefore, we conclude that the proper statute to apply to the appellant’s case is
the 2003 version that was in effect at the time of his conviction and sentencing.

       In the instant case, the trial court denied the motion for expunction on the basis that
the appellant committed a series of burglaries and thefts and by accrediting Ragan’s
testimony that the cases were “impossibly intertwined.”

          Previously, this court has addressed whether the “intertwined” nature of charges is a
basis for denying a motion for expunction. In Eslick v. State, 942 S.W.2d 559, 560 (Tenn.
Crim. App. 1996), the defendants, Eslick and Rappuhn, were charged with felony murder,
aggravated kidnapping, and aggravated rape; the charges stemmed from a single incident. At
trial, they were convicted of aggravated kidnapping. Id. They later filed a motion for
expunction of the murder and rape charges. Id. The trial court denied the motion, holding
that the charges were “‘so entwined . . . that the records . . . cannot be expunged without
destroying substantive data affecting the charge for which [the defendants] were convicted
. . . .’” Id. On appeal, this court stated:

                    Ordinarily, the trial court has no discretion relative to
              expunging public records for charges resulting in a dismissal or

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                      an acquittal. Obviously, some records that relate to several
                      charges, some resulting in convictions and others resulting in
                      acquittals, may be of such a character that it is impractical to
                      redact the part dealing with the dismissed charges. However,
                      the mandatory nature of the expunction statute means that any
                      exception to it must be for cause shown. In this respect, a
                      blanket refusal to expunge any records relating to a dismissed
                      charge is inherently suspect and it is incumbent upon the
                      opponent of expunction to insure that the record justifies less
                      than full redaction of relevant records. In fact, this court has
                      previously ordered the expunction of public records of
                      dismissed counts even though a conviction was obtained for one
                      count in a multi-count indictment, noting that the state could not
                      prohibit expunction by claiming that the records for the
                      dismissed and convicting counts are intertwined when it is in the
                      state’s power to decide if multiple charges are to be brought in
                      a single indictment.

Id. at 560 (citations omitted); see also Adler, 92 S.W.2d at 403; State v. Liddle, 929 S.W.2d
415 (Tenn. Crim. App. 1996).

        In the instant case, although Ragan testified that redaction would be an extensive
process, she essentially conceded that redaction was possible as long as the clerk’s office
cross-referenced the case numbers corresponding to the dismissed counts. She asserted that
the cases must be “inter-related . . . or they wouldn’t be presented in the same case.” Using
that logic, every count presented in a multi-count indictment would be “intertwined” and not
subject to expungement under the 2003 version of the expungement statute.2 However, our
supreme court has held that “a conviction for one count in a multi-count indictment or
presentment does not preclude expungement of the records relating to a separate count when
the criteria of section 40-32-101 have been satisfied.” 3 L.W., 350 S.W.3d at 918.
Accordingly, we conclude that the trial court erred by denying the motion for expunction.




           2
               As the State noted, expunction would not be permitted under the 2012 version of the expunction
statute.
           3
         In L.W., our supreme court dealt with Tennessee Code Annotated section 40-32-101 (2006 and
Supp. 2010). 350 S.W.3d at 916.

                                                        -7-
                                    III. Conclusion

       Based upon the record and the parties’ briefs, we reverse the judgment of the trial
court and remand for expunction of the dismissed charges.


                                                 _________________________________
                                                 NORMA McGEE OGLE, JUDGE




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