#26997-a-LSW

2014 S.D. 82

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA
                                     ****
                  IN THE MATTER OF THE EXPUNGEMENT
                      OF THE RECORD CONCERNING
                         BRANDON TALIAFERRO.
                                         ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIFTH JUDICIAL CIRCUIT
                     BROWN COUNTY, SOUTH DAKOTA
                                     ****
                    THE HONORABLE GENE PAUL KEAN
                             Retired Judge
                                     ****

MARTY J. JACKLEY
Attorney General

PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota

      and

MICHAEL R. MOORE
Special Prosecutor
Brown County State’s Attorney’s Office
Huron, South Dakota                             Attorneys for respondent and
                                                appellee State of South Dakota.



MICHAEL J. BUTLER
Sioux Falls, South Dakota                       Attorney for petitioner
                                                and appellant Brandon
                                                Taliaferro.


                                     ****
                                                ARGUED OCTOBER 8, 2014

                                                OPINION FILED 11/25/14
#26997

WILBUR, Justice

[¶1.]        Brandon Taliaferro petitioned for expungement of several charges

against him. The circuit court granted expungement of some but not all of the

charges. Taliaferro appeals the circuit court decision. We affirm.

                                    Background

[¶2.]        On April 20, 2012, and September 14, 2012, a Brown County grand

jury indicted Taliaferro on the following seven charges: witness tampering, three

counts of subornation of perjury, conspiracy to commit perjury, unauthorized

disclosure of confidential abuse and neglect information, and obstructing law

enforcement. Taliaferro pleaded not guilty to all of the charges. The State dropped

the conspiracy to commit perjury charge prior to trial; then, after trial, the State

formally dismissed the charge.

[¶3.]        Jury trial began on January 7, 2013. After the State rested, the

prosecutor dismissed, with prejudice, the obstructing law enforcement charge.

Taliaferro motioned for the acquittal of the five remaining charges. The circuit

court granted judgments of acquittal.

[¶4.]        Taliaferro filed a petition for expungement of all seven charges

pursuant to SDCL 23A-3-27. Citing SDCL 23A-3-27(2), the State refused to consent

to the expungement. The circuit court granted the petition of expungement as to

the five acquitted charges under SDCL 23A-3-27(3), but denied the petition as to

the two dismissed charges because the court did not have the prosecutor’s consent

under SDCL 23A-3-27(2). Taliaferro raises the following issue for our review:

[¶5.]        Whether the circuit court erred in denying expungement of the
             two dismissed charges.

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                                 Standard of Review

[¶6.]        The law of statutory interpretation is well settled. This Court has

previously stated:

             Questions of law such as statutory interpretation are reviewed
             by the Court de novo. . . . The purpose of statutory construction
             is to discover the true intention of the law which is to be
             ascertained primarily from the language expressed in the
             statute. The intent of a statute is determined from what the
             [L]egislature said, rather than what the courts think it should
             have said, and the court must confine itself to the language
             used. Words and phrases in a statute must be given their plain
             meaning and effect. When the language in a statute is clear,
             certain and unambiguous, there is no reason for construction,
             and the Court’s only function is to declare the meaning of the
             statute as clearly expressed. Since statutes must be construed
             according to their intent, the intent must be determined from
             the statute as a whole, as well as enactments relating to the
             same subject. But, in construing statutes together it is
             presumed that the [L]egislature did not intend an absurd or
             unreasonable result.

In re Estate of Ricard, 2014 S.D. 54, ¶ 8, 851 N.W.2d 753, 755-56 (quoting In re

Estate of Hamilton, 2012 S.D. 34, ¶ 7, 814 N.W.2d 141, 143).

                                       Analysis

[¶7.]        Taliaferro first argues that, because the prosecutor did not dismiss the

entire criminal case on the record, SDCL 23A-3-27(2) does not apply and therefore

consideration of the prosecutor’s refusal to consent to the expungement of the seven

charges was irrelevant. Instead, Taliaferro contends that the circuit court had

authority to grant expungement of all seven charges under SDCL 23A-3-27(3).

SDCL 23A-3-27 provides in full:

             An arrested person may apply to the court that would have
             jurisdiction over the crime for which the person was arrested, for
             entry of an order expunging the record of the arrest:
                     (1) After one year from the date of any arrest if no
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                    accusatory instrument was filed;
                    (2) With the consent of the prosecuting attorney at any
                    time after the prosecuting attorney formally dismisses the
                    entire criminal case on the record; or
                    (3) At any time after an acquittal.

[¶8.]         Both parties acknowledge that SDCL 23A-3-27(1) has no applicability

in this case because an accusatory instrument was filed against Taliaferro. Thus,

our analysis begins with SDCL 23A-3-27(2). The plain language of SDCL 23A-3-

27(2) sets forth two requirements for expungement. First, the prosecutor must

formally dismiss the entire criminal case on the record. Second, the prosecutor

must consent to the expungement. The language of these two requirements are

clear, certain and unambiguous. If given their plain meaning and effect, the words

of this statute make clear that the Legislature did not intend for SDCL 23A-3-27(2)

to apply to instances where the prosecutor merely dismisses some but not all of the

charges in the case. Indeed, the prosecutor must dismiss the entire criminal case on

the record. In this case, the prosecutor dismissed only two of the seven charges.

The prosecutor did not dismiss the entire criminal case; therefore, the first

requirement of SDCL 23A-3-27(2) was not satisfied. In addition, as the circuit court

noted, the prosecutor did not consent to the expungement, and that fact alone would

be sufficient to make subsection (2) inapplicable to the dismissed charges. SDCL

23A-3-27(2) therefore does not apply. 1



1.      Taliaferro argues that if SDCL 23A-3-27(2) were to apply, he questions the
        prosecutor’s basis for refusing to consent to the expungement of all seven
        charges. Taliaferro points out that the circuit court stated in its
        memorandum decision that “[t]here was no evidence in the remotest sense to
        show how Taliaferro committed a crime.” However, we note that the plain
                                                            (continued . . .)
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[¶9.]        The only remaining method for expungement is SDCL 23A-3-27(3),

which allows a court to grant expungement “at any time after an acquittal.” The

State argues that a court’s ability to grant expungement under SDCL 23A-3-27(3) is

limited only to instances where a defendant has been acquitted of the charge.

Because Taliaferro was not acquitted of the two dismissed charges, the State argues

that the court did not have authority to grant expungement under SDCL 23A-3-

27(3). Taliaferro responds that this strict construction frustrates the purpose of the

expungement statutory scheme. Instead, Taliaferro contends that the circuit court

had authority to grant expungement under SDCL 23A-3-27(3) because the two

dismissed charges were “inextricably intertwined” with the five acquitted charges.

According to Taliaferro, the appropriate construction of the statute is that the court

is left to determine, at any time after an acquittal, whether to grant expungement of

the related dismissed charges.

[¶10.]       Taliaferro directs this Court to several statutes in support of this

interpretation. First, Taliaferro points out that the purpose of the expungement

statutory scheme is to advance the goal of restoring the defendant to the status he

occupied before his arrest or indictment, as provided in SDCL 23A-3-32.

Furthermore, “[t]he court may enter an order of expungement if satisfied that the

ends of justice and the best interest of the public as well as the defendant or the

arrested person will be served by the entry of the order.” SDCL 23A-3-30. In



______________________________________
(. . . continued)
         language of SDCL 23A-3-27(2) contains no requirement that the State
         provide an explanation for its refusal to consent.

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addition, a statute should be “liberally construed with a view to effect its objects and

to promote justice.” SDCL 2-14-12. Taliaferro argues that, pursuant to these

statutes, SDCL 23A-3-27(3) should be liberally construed to allow expungement of

the two dismissed charges in order to align with the expungement statutory

scheme’s goal of restoring him to the status he occupied before his arrest.

[¶11.]       Taliaferro claims that between competing constructions of SDCL 23A-

3-27(3), the construction that advances the Legislature’s goals should be applied. In

making this argument, Taliaferro relies on State v. Schempp, 498 N.W.2d. 618 (S.D.

1993). In Schempp, a jury found the defendant, a first-time offender, guilty of two

felonies based upon simultaneous convictions. The circuit court entered two

separate judgments of conviction. At the time, SDCL 23A-27-13 provided that a

court may suspend the imposition of a sentence for “a person never before convicted

of a crime,” but the statute did not provide for the “situation where there are

simultaneous convictions for a first-time offender.” Id. at 620. Schempp asked the

circuit court to suspend imposition of sentence for both felonies. The court

concluded that it had authority to grant a suspended imposition of sentence as to

only one of the felonies. The defendant appealed and argued that the circuit court

erroneously interpreted SDCL 23A-27-13. On appeal, we said that “[w]hen faced

with a choice between two possible constructions of a statute, the court should apply

the interpretation which advances the [L]egislature’s goals.” Id. We reversed the

circuit court and held that the Legislature “left the courts with discretion to apply

SDCL 23A-27-13 in each case in the manner best suited to achieve the goals of that

statute.” Id. (emphasis omitted).


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[¶12.]       The issue in Schempp is distinguishable from the present case. In

Schempp, this Court was faced with a choice between two possible constructions of

SDCL 23A-27-13. Here, the language of SDCL 23A-3-27(3) does not lend itself to

two possible constructions. There is no language in the statute that might allow for

the expungement of dismissed charges that are “inextricably intertwined” with

acquitted charges.

[¶13.]       Specifically, SDCL 23A-3-27(3) provides that “[a]n arrested person may

apply to the court that would have jurisdiction over the crime for which the person

was arrested, for entry of an order expunging the record of the arrest . . . at any

time after an acquittal.” (Emphasis added.) The use of the language “the crime”

denotes that the statute applies to each specific charge individually. Thus, a charge

may be expunged under SDCL 23A-3-27(3) only when there has been an acquittal of

that specific charge.

[¶14.]       Alternatively, Taliaferro urges this Court to adopt the view that SDCL

23A-3-30 provides the circuit court with discretion to enter an order of expungement

under SDCL 23A-3-27(3), after an acquittal, on the related dismissed charges “if

satisfied that the ends of justice and the best interest of the public as well as the

defendant or the arrested person will be served by the entry of the order.” SDCL

23A-3-30.

[¶15.]       Our decision in In re Expungement of Oliver provides guidance on this

issue. 2012 S.D. 9, 810 N.W.2d 350. In Oliver, the defendant was convicted of two

misdemeanors. The circuit court granted the expungement of both convictions




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under SDCL 23A-3-27. 2 We held that the court did not have authority to grant the

expungement of a conviction, because “[i]f the Legislature had intended to allow

expungement of a conviction it would have included that language in the statute.”

Id. ¶ 13, 810 N.W.2d at 353. As rationale, we said that “although the Legislature

defined ‘expungement’ broadly, the statutory scheme cannot be read to give courts

broad [authority] to grant expungement.” 3 Id. ¶ 12, 810 N.W.2d at 353. SDCL 23A-

3-30 merely “provides the standard to be applied by the court . . . in determining if

expungement is appropriate.” Id. A circuit court must first have authority under

SDCL 23A-3-27 before it can apply the standard set forth in SDCL 23A-3-30.

Consequently, we reject Taliaferro’s argument that SDCL 23A-3-30 expands the

circuit court’s authority to grant expungement.

[¶16.]         According to Taliaferro, this “strained” reading of SDCL 23A-3-27

frustrates the purpose of the expungement statutory scheme and creates an absurd

and unreasonable result. We disagree. Taliaferro points out that all seven charges




2.       At the time of this Court’s decision in Oliver, SDCL 23A-3-27 did not yet
         include the language of subsection (2)—the prosecutorial “veto.” The
         Legislature amended SDCL 23A-3-27 in 2012. The original version of this
         statute, which Oliver relied on, stated in full:
               An arrested person may apply to the court that would have
               jurisdiction over the crime for which the person was arrested, for
               entry of an order expunging the record of the arrest after one
               year from the date of any arrest, if no accusatory instrument
               was filed, or at any time after an acquittal.

3.       We replace the word “jurisdiction” with “authority” as there was no question
         before the Court in Oliver nor is there a question in this case as to the circuit
         court’s personal or subject matter jurisdiction. Rather, the appropriate
         question is whether the circuit court had authority to grant the expungement
         under the statutory scheme enacted by the Legislature.

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against him arose from the same facts. The police reports, the witnesses, and the

evidence were the same for all of the charges. Moreover, the circuit court stated

that “[t]here was no evidence in the remotest sense to show how Taliaferro

committed a crime.” Taliaferro alleges that denying the expungement of the two

dismissed charges in light of these facts “has led to a manifestly unjust result.”

Indeed, the denial of expungement creates an unfavorable result for Taliaferro; but,

the court cannot grant that which it does not have authority to grant. If the

Legislature intended to allow expungement of dismissed charges that are

“inextricably intertwined” with other acquitted charges from the same record, the

Legislature would have added language to that effect.

[¶17.]       Furthermore, we said in Oliver that “it is quite possible that the

Legislature felt there was a qualitative difference in conduct resulting in charges

(unless acquitted) and conduct that does not result in charges being filed.” Oliver,

2012 S.D. 9, ¶ 14, 810 N.W.2d at 353. Likewise, it is also quite possible that the

Legislature found a qualitative difference in charges that are dismissed and charges

that are acquitted based on the same facts from the same record. In fact,

subsequent to our decision in Oliver, the Legislature amended SDCL 23A-3-27 to

add the language set forth in SDCL 23A-3-27(2)—“[w]ith the consent of the

prosecuting attorney at any time after the prosecuting attorney formally dismisses

the entire criminal case on the record.” See 2012 S.D. Sess. Laws ch. 131, § 1. As

we discussed above, this language only allows for the expungement of dismissed

charges when the entire criminal case has been dismissed on the record, not when

part of the case has been dismissed. This highlights that the Legislature considered


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whether expungement should be granted for dismissed charges, and concluded that

expungement is only appropriate when the entire case has been dismissed on the

record.

[¶18.]       The language of SDCL 23A-3-27(3) is clear, certain and unambiguous.

See In re Estate of Ricard, 2014 S.D. 54, ¶ 8, 851 N.W.2d at 755-56 (quoting In re

Estate of Hamilton, 2012 S.D. 34, ¶ 7, 814 N.W.2d at 143). We need not resort to

the legislative history to determine the intent of the Legislature. Rather, we are

confined to the plain language of the statute. The plain language of SDCL 23A-3-27

does not provide the circuit court with authority to expunge the two dismissed

charges. We recognize that this is a harsh result; nevertheless, the appropriate

avenue for relief in this case is through the Legislature.

                                CONCLUSION

[¶19.]       The circuit court did not err when it denied Taliaferro’s petition to

expunge the two dismissed charges. We affirm.

[¶20.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

SEVERSON, Justices, concur.




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