                             FOURTH DIVISION
                             ELLINGTON, P. J.,
                          BRANCH and MERCIER, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                     April 20, 2016




In the Court of Appeals of Georgia
 A16A0358. WOODHOUSE v. THE STATE.

      MERCIER, Judge.

      Christopher Woodhouse appeals from an order denying his motion to seal the

clerk of court’s records pursuant to OCGA § 35-3-37. In his sole enumeration of

error, Woodhouse contends the trial court erred by failing to consider the merits of

his motion to seal the clerk’s records under the version of OCGA § 35-3-37 in effect

at the time his motion was heard. For the reasons that follow, we vacate the judgment

and remand the case to the trial court.

      In 2011, Woodhouse was arrested and charged with false imprisonment and

criminal trespass. Woodhouse petitioned to be placed in the Cobb County District

Attorney’s Domestic Violence Pretrial Diversion Program. Woodhouse entered the

program, and his case was placed on the Dead Docket pending his successful
completion of the program. After Woodhouse successfully completed the pretrial

diversion program, his case was removed from the Dead Docket and a nolle prosequi

was entered.

      In August 2013, Woodhouse submitted an application to have his arrest record

restricted pursuant to OCGA § 35-3-37, and the request was approved by the Cobb

County Sheriff’s Office in October 2013. In January 2015, Woodhouse filed a motion

to have the clerk of court’s records of the case sealed pursuant to OCGA § 35-3-37

(m) (2). Under OCGA § 35-3-37 (m) (1)

      [f]or criminal history record information maintained by the clerk of
      court, an individual who has a record restricted pursuant to this Code
      section may petition the court with original jurisdiction over the charges
      in the county where the clerk of court is located for an order to seal all
      criminal history record information maintained by the clerk of court for
      such individual’s charge.


OCGA § 35-3-37 (m) (2) provides:

      The court shall order all criminal history record information in the
      custody of the clerk of court, including within any index, to be restricted
      and unavailable to the public if the court finds by a preponderance of the
      evidence that:




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       (A) The criminal history record information has been restricted pursuant
       to this Code section; and


       (B) The harm otherwise resulting to the privacy of the individual clearly
       outweighs the public interest in the criminal history record information
       being publicly available.


       A hearing was held in May 2015, at which the State argued that the sealing

provision contained in OCGA § 35-3-37 (m) (2) was inapplicable to Woodhouse’s

case because the case was indicted in 2012, and the current version of the statute went

into effect on July 1, 2013. The trial court issued an order denying Woodhouse’s

motion, determining: “that the underlying crime in this case occurred on December

10, 2011. The statute is therefore not applicable.” Woodhouse appeals the order of

the trial court.

       “When a question of law is at issue, as here, we owe no deference to the trial

court’s ruling and apply the ‘plain legal error’ standard of review.” Suarez v. Halbert,

246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). Because the trial court’s finding

that OCGA § 35-3-37 (m) (2) did not apply to a crime that occurred before July 1,

2013, constituted plain error, we reverse.




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      The Supreme Court of Georgia recently considered the question of whether the

amendments to OCGA § 35-3-37 apply to pre-July 1, 2013, arrests. In Mosley v.

Lowe, 782 SE2d 43, (2016), the Court held: “[b]ecause the statute itself makes clear

that it does apply to information regarding arrests pre-dating the amendments, and

because such application presents no constitutional problem, we hold that the

amendments to the statute do apply here.” Id. at 44. The Court noted that the statute

specifically addresses criminal history records that pre-date the effective date of the

amendments to OCGA § 35-3-37. “[A]s to arrests occurring before July 1, 2013, an

individual may, in writing, request the arresting law enforcement agency to restrict

the criminal history record information of an arrest.” OCGA § 35-3-37 (n) (1). In light

of this statutory provision, the Court held that “the clear and unambiguous terms of

the amended statute provide for its applicability to arrests pre-dating the amendments’

July 1, 2013 effective date.” Mosley, supra.

       OCGA § 35-3-37 (n) (1) does not carve out an exception for the provisions of

OCGA § 35-3-37 (m) (2), but only makes an exception for paragraph (j) with regards

to pre-July 1, 2013, arrests. See OCGA § 35-3-37 (n) (1). Thus, as the clear and

unambiguous terms of the statute provide for its applicability to arrests before July

1, 2013, it is likewise applicable to parties seeking an order to seal criminal records

                                          4
of those arrests pursuant to OCGA § 35-3-37 (m) (2). Because the provisions of

OCGA § 35-3-37 (m) (2) do apply to arrests that pre-date July 1, 2013, the trial court

should have considered the merits of Woodhouse’s motion to seal the clerk’s records.

Therefore, the order denying Woodhouse’s motion to seal the clerk of court’s records

is vacated, and the case is remanded to the trial court for action consistent with this

opinion.

      Judgment vacated and remanded. Ellington, P. J., and Branch, J., concur.




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