        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                November 17, 2009 Session

          KATHY MICHELLE FOWLER v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                      No. 2005-C-1625     Steve Dozier, Judge



              No. M2009-00700-CCA-WR-CO - Filed November 4, 2010


Petitioner, Kathy Michelle Fowler, was indicted by the Davidson County Grand Jury in one
indictment for domestic assault, harassment, and aggravated criminal trespass. Petitioner
subsequently pled guilty to domestic assault. The remaining two charges were dismissed.
Petitioner was sentenced to eleven months and twenty-nine days, to be served on probation.
Petitioner filed a petition to expunge the dismissed charges pursuant to Tennessee Code
Annotated section 40-32-101. After a hearing, the trial court denied the petition, concluding
that the plain language of the statute excluded expungement of “cases in which the
defendant has been convicted of a charge within the case.” Petitioner filed a petition for a
writ of certiorari in this Court. We granted the petition in order to determine if the trial court
has exceeded its jurisdiction or has acted illegally. After a review of the record, we
determine that based on this Court’s decision in State v. Gerald Gifford, No. E2006-02500-
CCA-R3-CD, 2008 WL 1813105 (Tenn. Crim. App., at Knoxville, Apr. 23, 2008), perm.
app. denied, (Tenn. Oct. 27, 2008), the trial court herein improperly denied the petition to
expunge the dismissed charges where Petitioner was indicted in a multi-count indictment,
pled guilty to one count of the indictment, and the remaining charges were dismissed. The
judgment of the trial court is, therefore, reversed and the matter is remanded to the trial court
for further proceedings, including granting Petitioner’s petition to expunge the dismissed
charges of harassment and aggravated criminal trespass.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JERRY L. SMITH and
CAMILLE R. MCMULLEN, JJ., joined.

Doug Thurman, Nashville, Tennessee, for the appellant, Kathy Michelle Fowler.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Pamela Anderson,
Assistant District Attorney General, for the appellee, the State of Tennessee.

                                        OPINION

I. Background

       Petitioner was originally arrested on three separate warrants for domestic assault,
harassment, and aggravated burglary. The Davidson County Grand Jury returned a multi-
count indictment against Petitioner in July of 2005, charging Petitioner with one count of
domestic assault, one count of harassment, and one count of aggravated criminal trespass.
The individual incidents that led to the indictments occurred on three separate days.

       Petitioner pled guilty to domestic assault, as charged in count one, on September 8,
2005. In exchange for the guilty plea, Petitioner received an eleven month, twenty-nine day
sentence that was ordered to be served on probation. The trial court dismissed counts two
and three of the indictment.

       Subsequently, in January 2009, Petitioner filed a “Petition to Expunge Dismissed
Charges” as a result of the plea agreement. Petitioner argued that Tennessee Code
Annotated section 40-32-101(a)(1)(A) provides for destruction or release of records when
a charge “has been dismissed.”

        The trial court held a hearing on the petition to expunge. At the hearing, Petitioner
testified that she was initially charged with aggravated burglary, harassment, and domestic
assault and subsequently indicted for aggravated criminal trespass, harassment, and domestic
assault. She admitted that she pled guilty to the domestic assault charge and that the
remaining charges were dismissed. Petitioner explained to the trial court that she was
having difficulty securing employment because the dismissed charges were still on her
record, including the initial warrant in which she was charged with aggravated burglary.

        The State called Thomas Bradley, Chief Administrative Officer of the Criminal Court
Clerk’s Officer. Mr. Bradley explained that since Tennessee Code Annotated section 40-32-
101 had been amended in 2003, his office no longer expunged charges where the defendant
had pled or been found guilty of one of the charges under the same indictment number. Mr.
Bradley testified at length as to the difficulty of expunging certain charges within an
indictment. On cross-examination, Mr. Bradley conceded that his office had performed
“partial expungements” prior to the passage of the 2003 amendment and could do so again
if directed. Mr. Bradley further noted that in General Sessions Court his office currently

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expunged multiple charges associated with a common complaint number where, for
example, three of the four charges were dismissed.

       At the conclusion of the hearing, the trial court took the matter under advisement.
In an order filed on March 9, 2009, the trial court denied the petition. The trial court
determined that there was “no need to go beyond the clear meaning of the statute at hand
[Tennessee Code Annotated section 40-32-101(a)(1)(A)].” The trial court specifically noted
the amendments to the statute that occurred in 2003, and reviewed the legislative history of
the amendment. The trial court also acknowledged this Court’s decision in State v. Gerald
Gifford, No. E2006-02500-CCA-R3-CD, 2008 WL 1813105 (Tenn. Crim. App., at
Knoxville, Apr. 23, 2008), perm. app. denied, (Tenn. Oct. 27, 2008), but deemed it “non-
binding” pursuant to Tennessee Supreme Court Rule 4. The trial court also pointed out that
the defendant in Gerald Gifford was “placed on judicial diversion, completed the program,
and was required to have these charges expunged pursuant to statute . . . [and thus] never
convicted.”

       Petitioner filed a petition for writ of certiorari in this Court, seeking review of the trial
court’s denial of the petition. This Court granted the writ.

II. Analysis

        On appeal, Petitioner argues that she is entitled to a grant of the petition to expunge
because “decisional law mandates that each charge or count of an indictment be treated
separately, and that this last sentence of [Tennessee Code Annotated section 40-32-
101(c)(1)(A)] refers to the conviction of an individual offense regardless of whether it is part
of a multi-count indictment.” In other words, Petitioner contends that “the charges listed
under the indictment number in her case must be treated as separate cases.” Therefore, “the
charges of harassment and aggravated criminal trespass that were dismissed pursuant to the
plea agreement and all records relating to said charges are eligible to be expunged.” The
State, on the other hand, contends that “[t]he plain meaning of the statute shows that when
a defendant is convicted on one charge in a multi-count indictment and the other charges are
dismissed, he or she is not entitled to have the dismissed charges expunged.”

      At the outset, we note that this case comes to our Court via a writ of certiorari.
Tennessee Code Annotated section 27-8-101 codifies the common law writ of certiorari and
provides:

       The writ of certiorari may be granted whenever authorized by law, and also
       in all cases where an inferior tribunal, board, or officer exercising judicial
       functions has exceeded the jurisdiction conferred, or is acting illegally, when,

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       in the judgment of the court, there is no other plain, speedy, or adequate
       remedy. This section does not apply to actions governed by the Tennessee
       Rules of Appellate Procedure.

T.C.A. § 27-8-101. This case presents itself via a writ of certiorari as there is no appeal
available under Tennessee Rule of Appellate Procedure 3(c) from a from a trial court’s order
to grant or deny a motion to expunge. State v. Adler, 92 S.W.3d 397, 401 (Tenn. 2002).
Further, Tennessee Rule of Appellate Procedure 3(b) does not contemplate an appeal as of
right from the denial of an expungement petition. See Tenn. R. App. P. 3(b); see also Adler,
92 S.W.3d at 403.

        The State in Alder appealed the trial court’s granting of an order of expungement,
arguing that the trial court acted contrary to the law when it granted the defendant’s order
of expungement. The Supreme Court held that, because the State alleged the trial court acted
without legal authority, it could, pursuant to the common law writ of certiorari, address the
trial court’s grant of the defendant’s motion to expunge his record. Id.; see also State v.
Gerald Gifford, No. E2006-02500-CCA-R3-CD, 2008 WL 1813105, at *2 (Tenn. Crim.
App., at Knoxville, Apr. 23, 2008), perm. app. denied (Tenn. Oct. 27, 2008) (concluding
that “a common law writ was proper where the record reveals that the issue presented
involves an allegation that the trial court acted without legal authority in refusing
expungement and because there is no other ‘plain, speedy, or adequate remedy.’”).

       Keeping that framework in mind, this Court will review the trial court’s denial of the
motion to expunge Petitioner’s dismissed convictions for harassment and aggravated
criminal trespass to see if the trial court exceeded its jurisdiction or acted illegally.
Tennessee Code Annotated section 40-32-101 provides for “destruction or release of
records.” In pertinent part, it provides:

       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 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 or charge.



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T.C.A. § 40-32-101(a)(1)(A) & (E). Tennessee Code Annotated section 40-32-101 was
amended in 2003 and again in 2006. The 2003 amendments were after the supreme court’s
decision in Adler.

        In Adler, the defendant was charged in a single-count indictment for aggravated child
neglect of a child under six years of age, a felony. 92 S.W.3d at 397. After a jury trial, the
defendant was convicted of the lesser offense of reckless endangerment, a Class A
misdemeanor. After conviction, the defendant sought expungement of all records relating
to his felony indictment. Our supreme court held that “a defendant who is convicted of a
lesser-included offense of the offense sought in the indictment or presentment is entitled to
have the record expunged of any greater charge(s) for which the jury finds the defendant not
guilty.” Adler, 92 S.W.3d at 403. This decision was released on December 30, 2002, and,
on May 22, 2003, Public Chapter 175 was enacted amending the expungement statute
precluding expungement of the records “when a defendant in a case has been convicted of
any offense or charge including a lesser included offense or charge.” T.C.A. §
40-32-101(a)(1).

       An Attorney General Opinion was released in 2006, addressing the effect of the
amendments to Tennessee Code Annotated section 40-32-101 on expungement of records
in multi-count criminal indictments. See Tenn. Op. Att’y Gen. 06-003 (Jan. 5, 2006). The
question presented was:

       Where a defendant is convicted of at least one count in a multi-count
       indictment, does Tenn. Code Ann. § 40-32-101(a)(1), as amended by Public
       Chapter No. 175 of the Acts of 2003, preclude the expungement of records
       relating to all counts in that indictment?

The Attorney General answered the question as follows: “Yes. The plain language of section
40-32-101(a)(1), as amended by Public Chapter No. 175, prohibits the expungement of
records of charges ‘in such case’ where a defendant has been convicted of ‘any offense or
charge.’” Id.

       In State v. Gerald Gifford, No. E2006-02500-CCA-R3-CD, 2008 WL 1813105
(Tenn. Crim. app., at Knoxville, Apr. 23, 2008), perm. app. denied, (Tenn. Oct. 27, 2008),
a panel of this Court addressed the very issue raised by the Attorney General Opinion and
came to a different conclusion. In Gerald Gifford, the defendant was indicted in an eleven
count indictment. Id. at *1. The defendant then pled guilty to three counts of felony
reckless endangerment and one count of driving under the influence. Id. The plea
agreement specified that the defendant would receive a sentence of eleven months and
twenty-nine days, to be suspended after service of forty-eight hours in jail for the driving

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under the influence conviction. Id. The defendant pled guilty to the reckless endangerment
counts pursuant to the judicial diversion statute, which provided that after the one-year
supervised probationary period, the records would be expunged. Id. The reckless
endangerment charges and the driving under the influence charges were unrelated but
permissibly joined in the indictment. Id. The remaining counts of the indictment were
dismissed. Id.

        After successful completion of probation, the defendant filed a petition for
expungement of the three felony reckless endangerment charges. Id. at *2. The trial court
clerk denied the request based on the Attorney General Opinion. As a result, the defendant
filed a motion to compel the clerk to expunge the charges. Id. The trial court granted the
motion to compel but the trial court clerk convinced the trial court to rescind the order. Id.
The defendant filed a second motion to compel and requested a hearing. After the hearing,
the trial court denied the motion to expunge the records. The defendant sought an appeal
via a common law writ of certiorari. Id.

      On appeal, this Court examined the history of Tennessee Code Annotated section 40-
32-101 as well as the Attorney General’s opinion referenced above and concluded:

              We respectfully disagree with the Attorney General’s interpretation of
       the language of the 2003 amended statute. The Attorney General opines that
       the plain language of the term “case” or “in such case,” as used in the statute,
       refers to the indictment as a whole, and, as such, a multi-count indictment
       constitutes but a single case. However, it is fundamental that each count of
       an indictment represents a separate criminal charge, or case, and that a
       conviction under each count of the indictment requires a separate judgment
       of conviction. In State v. Russell, 800 S.W.2d 169, 172 (Tenn. 1990), our
       supreme court, citing Usary v. State, 172 Tenn. 305, 112 S.W.2d 7 (1938),
       observed that “[e]ach count in an indictment is, in legal contemplation, a
       separate indictment; each count must be a complete indictment in itself.” As
       such, we construe the term “case” to mean each individually numbered count
       or criminal offense alleged within the indictment. Thus, a multi-count
       indictment represents multiple criminal cases.

                     ....

       [W]e acknowledge that our primary role is to ascertain and give effect to the
       legislative intent without unduly restricting or expanding the statute coverage
       beyond its intended scope. Owens v. State, 908 S.W.2d 923, 926 (Tenn.
       1995). In application of the above principles, we construe the term “case” in

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       Tennessee Code Annotated section 40-32-101(a)(1) to mean each separate
       count of the indictment.

The court did not make a distinction for the treatment of the term “case” where a defendant
is on judicial diversion as opposed to some other type of sentence. As a result of their
interpretation of the words “case” and “charge” in the statute, the court in Gifford reversed
and remanded for entry of an order of expungement for the defendant’s reckless
endangerment charges. 2008 WL 1813105, at *5.

       We agree with the analysis set forth in Gifford. Each count of Petitioner’s indictment
represents a separate “case.” Consequently, Petitioner’s indictment for harassment and
aggravated criminal trespass are separate “cases” for purposes of Tennessee Code Annotated
section 40-32-101. Therefore, the trial court acted illegally by refusing to grant the petition
to expunge Petitioner’s dismissed charges of harassment and aggravated criminal trespass.
Accordingly, the judgment of the trial court is reversed. The case is remanded to the trial
court for entry of the order of expungement and other proceedings which may be necessary
in order to comply with this opinion.

                                      CONCLUSION

        For the foregoing reasons, the judgment of the trial court is reversed and remanded
for further proceedings in accordance with this opinion.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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