                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                                 January 22, 2015 Session

                 STATE OF TENNESSEE v. RYAN M. DELABY

                  Appeal from the Criminal Court for Bradley County
                       No. M-06-524     Carroll L. Ross, Judge




                   No. E2014-00772-CCA-R3-CD - Filed April 2, 2015


The petitioner, Ryan M. Delaby, appeals from the Bradley County Criminal Court’s order
denying his petition to expunge the records of his 2006 conviction of Class E felony
vandalism. Because we conclude that the petitioner failed to meet 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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and R OBERT H. M ONTGOMERY, J R., JJ., joined.

G. Scott Kanavos, Cleveland, Tennessee, for the appellant, Ryan M. Delaby.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Stephen Crump, District Attorney General; and Stephen Hatchett, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               On November 6, 2006, the petitioner pleaded guilty to one count of assault, one
count of domestic assault, and one count of vandalism of property valued at more than $500
but less than $1,000 in exchange for a total effective sentence of two years to be served on
probation. On March 17, 2008, a probation violation warrant issued alleging that the
petitioner had violated the terms of his probation, and the trial court revoked the petitioner’s
probation but returned him to probation. On June 2, 2008, a second violation warrant issued,
and the trial court again revoked the defendant’s probation but this time ordered the
defendant to serve his sentence in confinement. The defendant was placed on determinate
release on November 17, 2008, see T.C.A. § 40-35-501(a)(3) (2006) (“Notwithstanding any
other provision of law, inmates with felony sentences of two (2) years or less shall have the
remainder of their original sentence suspended upon reaching their release eligibility date.”),
which order of release indicates a probation expiration date of January 29, 2010.

                At some point thereafter, the petitioner filed a written petition asking the trial
court to expunge the records of his vandalism conviction under the terms of Tennessee Code
Annotated section 40-32-101(g). No copy of that petition appears in the record. An agreed
order was filed on August 26, 2013, granting the petition to expunge. On November 7, 2013,
the trial court entered an order noting that the agreed order might be contrary to the terms of
Code section 40-32-101(a)(1)(E) and holding the August 26, 2013 order in abeyance pending
further proceedings. On March 24, 2014, the trial court entered an order denying the petition
to expunge on the ground that the petitioner was not eligible for expunction 1 because he had
been convicted of offenses other than the one for which he sought expunction.

              The petitioner then filed in this court a petition for writ of certiorari followed
by an untimely notice of appeal. We waived the timely filing of the notice of appeal, and this
appeal is now properly before this court.

               In this appeal, the defendant contends that the trial court erred by denying his
petition to expunge the records of his vandalism conviction. He acknowledges having been
convicted of three offenses in 2006 but argues that because those convictions were for
offenses that occurred within the same 24-hour period, he was not rendered ineligible for
expunction by virtue of the multiple convictions. The State asserts that the defendant is
ineligible for expunction because his conviction of vandalism was not his “sole” conviction
and because of the character of the remaining convictions.

             At the time the petitioner filed his petition, Tennessee Code Annotated section
40-32-101 provided, in pertinent part, as follows:

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

                        (A) A person who was convicted of one of the following
                 Class E felonies and sentenced to imprisonment for a term of

        1
          The courts of this state have used the terms expungement and expunction interchangeably as the
nominalization of the verb expunge. The verb expunge comes from the Latin word expungere which means
“‘prick out, blot out, mark (a name on a list) for deletion’ by pricking dots above or below it, literally ‘prick
out,’” and is formed by adding the Latin stems “ex,” which means “out,” and “pungere,” which means “‘to
prick, stab.’” See Online Etymology Dictionary, http://www.etymonline.com. Expunction is a “noun of
action” derived from the “past participle stem of expungere.” See id. Expunction is also the term used by
the Code. For these reasons, we employ the term expunction rather than expungement.

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three (3) years or less for an offense committed on or after
November 1, 1989:

       ....

       (xxii) Section 39-14-408 -- Vandalism ($501-$999);

       ....

       (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:

       (i) Section 39-13-101(a)(1) and (2) -- Assault;

       ....

       (iii) Section 39-13-111 -- Domestic assault;

       ....

       (2) Notwithstanding the provisions of this section,
effective July 1, 2012, an eligible petitioner may file a petition
for expunction of that person’s public records involving a
criminal offense if:

       (A) At the time of filing, the person has never been
convicted of any criminal offense, including federal offenses
and offenses in other states, other than the offense committed
for which the petition for expunction is filed;

        (B) At the time of the filing of the petition for expunction
at least five (5) years have elapsed since the completion of the
sentence imposed for the offense;

       (C) The person has fulfilled all the requirements of the
sentence imposed by the court in which the individual was
convicted of the offense, including:



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                        (i) Payment of all fines, restitution, court costs and other
                  assessments;

                         (ii) Completion of any term of imprisonment or
                  probation;

                         (iii) Meeting all conditions of supervised or unsupervised
                  release; and

                         (iv) If so required by the conditions of the sentence
                  imposed, remaining free from dependency on or abuse of
                  alcohol or a controlled substance or other prohibited substance
                  for a period of not less than one (1) year.

T.C.A. § 40-32-101(g)(1)-(2) (2012).

               In this case, the defendant was convicted in November 2006 and sentenced to
two years’ probation. His probation was revoked twice, and on the second revocation in July
2008, the trial court ordered the defendant to serve the two-year sentence in the department
of correction. In November 2008, the defendant was released on determinate release with
an expiration date of January 29, 2010. Thus, based on the record before this court, the
defendant’s sentence did not expire before January 29, 2010. In consequence, despite his
claim, and the apparent agreement of the State, that the defendant “indisputably met the
requirements of [Code section] 40-32-101(g)(2)(B)&(C),” at the time the defendant first
applied for expunction in 2013, five years had not “elapsed since the completion of the
sentence imposed.” See id. § 40-32-101(g)(2)(B) (2012) (emphasis added). Because five
years had not elapsed since the completion of the sentence imposed for the offense, the
petitioner was not entitled to petition for expunction of his vandalism conviction.

               Moreover, had the petition not been premature, the petitioner would not have
been entitled to have his vandalism conviction expunged.

              The petitioner claims that the term “criminal offense” used in the 2012 version
of Code section 40-32-101 was ambiguous and that given this ambiguity, we should give that
term the same definition used for the term “prior conviction” in Code section 40-35-
108(b)(1),(4).2


       2
           That section provides:

                          (b) In determining the number of prior convictions a defendant has

                                                      4
               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)).

               At the time of his petition, Code section 40-32-101(g) allowed for expunction
of a conviction of one of the enumerated offenses if “[a]t the time of filing, the person has
never been convicted of any criminal offense . . . other than the offense committed for which
the petition for expunction is filed.” T.C.A. § 40-32-101(g)(2)(A) (emphasis added). The
petitioner had, in fact, been convicted of two offenses other than the one for which he sought
expunction. Thus, under the seemingly plain terms of the statute, he was barred from seeking
expunction of the vandalism conviction. In our view, no ambiguity in the language of the
2012 statute would permit us to resort to reference to an unrelated provision of the
Sentencing Act to give it the interpretation suggested by the petitioner.



                received:

                         (1) “Prior conviction” means a conviction for an offense occurring
                prior to the commission of the offense for which the defendant is being
                sentenced;

                        ....

                         (4) Except for convictions for which the statutory elements include
                serious bodily injury, bodily injury, threatened serious bodily injury or
                threatened bodily injury to the victim or victims or convictions for the
                offense of aggravated burglary under § 39-14-403, convictions for multiple
                felonies committed within the same twenty-four-hour period constitute one
                (1) conviction for the purpose of determining prior convictions[.]

T.C.A. § 40-35-108(b)(1), (4).

                                                     5
             In 2014, however, the legislature amended Code section 40-32-101(g) by
adding subsection (g)(1)(D), which provides:

                      (D) 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, 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)(D)
              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.

Id. § 40-32-101(g)(1)(D) (2014). The 2014 amendment took “effect July 1, 2014,” and
“appl[ies] to petitions for expunction pursuant to Tennessee Code Annotated, Section
40-32-101(g), filed prior to or after such date.” 2014 Tenn. Pub. Acts, ch. 671, §5 (emphasis
added).

               The defendant’s convictions of assault and domestic assault are not eligible for
expunction, see id. § 40-32-101(g)(1)(B)(i), (iii), thus rendering his conviction of vandalism
ineligible for diversion under the amended statute. Moreover, the record does not establish
that the three offenses occurred contemporaneously and at the same location, rendering him
ineligible for expunction. The transcript of the guilty plea submission hearing was not
included in the record on appeal, but the affidavit of complaint includes facts indicating that
the defendant assaulted his girlfriend and vandalized her property at one location and later
committed a second, related assault at a second location on that same day.

               Because the defendant did not meet the qualifications for expunction, the trial
court did not err by denying the defendant’s petition. Accordingly, we affirm the judgment
of the trial court.

                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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