                             THIRD DIVISION
                            ELLINGTON, P. J.,
                        ANDREWS and RICKMAN, 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


                                                                    October 5, 2017




In the Court of Appeals of Georgia
 A17A1151. AUSTIN v. THE STATE.

      RICKMAN, Judge.

      Gordon Austin appeals the lower court’s denial of his petition to seal records

pursuant to OCGA § 42-8-62.1, Georgia’s statute limiting public access to first

offender records in the custody of the clerk of court. Finding no error in the trial

court’s judgment, we affirm.

      The record reflects the following. On August 6, 2009, in the Superior Court of

Carroll County, Austin, a dentist, entered a negotiated plea of guilty pursuant to
North Carolina v. Alford1 and Georgia’s first offender law, OCGA § 42-8-602 et seq.,

to six misdemeanor counts of theft by taking in connection with alleged fraudulent

billing of the State of Georgia Medicaid program. Austin was sentenced to serve 5

years on probation. In April 2012, Austin filed a motion for early termination of his

probation. The record reflects that in June 2012, the lower court entered an order

granting his motion, and terminating his probation, “as of June 8, 2012.” On August

18, 2016, the lower court entered an “Order of Discharge,” which contained a

handwritten notation of “nunc pro tunc the 8th of June, 2012.” That document

ordered and directed that, “in accordance with the provisions of the . . . First-

Offenders Act,” Austin be discharged without court adjudication of guilt; the

      1
         400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970) (trial court did not commit
constitutional error in accepting a guilty plea despite the accused’s claim of innocence
where there was strong evidence of guilt that negated the claim of innocence and
there was evidence that the accused intelligently concluded that he should plead
guilty).
      2
         Pursuant to OCGA § 42-8-60 (2009), Georgia’s first offender law, “for a
defendant without prior felony convictions, a court may defer entering a judgment of
guilt and place the defendant on probation or in confinement.” (Citation and
punctuation omitted.) Graydon v. State, 313 Ga. App. 580, 580-581 (722 SE2d 173)
(2012). After a defendant who has been sentenced as a first offender under this statute
either completes the terms of his or her probation, receives early termination of his
or her probation by the court, or is released from confinement, he or she shall be
exonerated of guilt and shall stand discharged as a matter of law. See OCGA § 42-8-
62 (a) (2009) .

                                           2
discharge shall completely exonerate Austin of any criminal purpose, not affect any

of Austin’s civil rights or liberties, and not be used to disqualify Austin in any

application for public or private employment or appointment to office; and Austin

shall not be considered to have a criminal conviction.

      On July 13, 2016, Austin filed a petition to seal his records pursuant to OCGA

§ 42-8-62.1 (d). OCGA § 42-8-62.1 (c) and (d) provide as follows.

      (c) An individual who has been exonerated of guilt and discharged
      pursuant to this article, including those individuals exonerated of guilt
      and discharged prior to July 1, 2016, may petition the court that granted
      such discharge for an order to seal and make unavailable to the public
      the criminal file, docket books, criminal minutes, final record, all other
      records of the court, and the defendant’s criminal history record
      information in the custody of the clerk of court, including within any
      index. Notice of such petition shall be sent to the clerk of court and the
      prosecuting attorney. A notice sent by registered or certified mail or
      statutory overnight delivery shall be sufficient notice.


      (d) Within 90 days of the filing of a petition pursuant to subsection (c)
      of this Code section, the court shall order the criminal file, docket
      books, criminal minutes, final record, all other records of the court, and
      the defendant’s criminal history record information in the custody of the
      clerk of court, including within any index, to be sealed and made
      unavailable to the public if the court finds by a preponderance of the
      evidence that: (1) An exoneration of guilt and discharge has been

                                          3
      granted pursuant to this article; and (2) The harm otherwise resulting to
      the privacy of the individual outweighs the public interest in the
      criminal history record information being publicly available.


(Emphasis supplied.)

      In the petition to seal his records, Austin claimed that in June 2016, the clerk

of the Carroll County Superior Court transmitted to a media news organization copies

of the accusation and plea agreement which did not contain “any designation or

markings relating to [his] First Offender discharge or any other statutorily prescribed

language to indicate exoneration of guilt or discharge,” and that “[s]ubsequently,

these transmitted documents were published online and reports of [his] ‘guilt’ in

relation to these charges have been widely promoted by various media outlets . . . .

[and] has resulted in direct and continuing harm to [his] reputation and privacy.”3

According to the article that Austin attached to his petition, news about the theft plea



      3
         Although this Court has recognized that an order of discharge and exoneration
is not required, see Collins v. State, 338 Ga. App. 886, 891 (3), n. 12 (792 SE2d 134)
(2016), we note that the clerk of court allegedly disseminated documents from
Austin’s theft case on July 7, 2016, which date was before the trial court had entered
an order of discharge, on August 18, 2016, albeit “nunc pro tunc the 8th of June,
2012.” Notwithstanding the foregoing, in this opinion, we are not called upon to
make, nor do we make, any determination as to any culpability of the clerk for the
acts alleged.

                                           4
surfaced after Austin had been selected as a delegate to represent the state at a certain

political party convention. In his petition, Austin asserted that “[t]he public

dissemination of this information has caused and continues to cause personal and

professional damage to Defendant-Petitioner, by interfering with his ability to

practice dentistry and creating a negative public image through media publication.”

He claimed that “[t]he public interest in [his] criminal history record information

being publicly available is negligible, if any. . . . [and] is far better served by the

sealing of [his] record.” Austin asserted that the purpose of the first offender statute

is to “protect the first offender from the stigma of having a criminal record with

regard to the crime for which the defendant was given first offender treatment,” and

he requested that all records relating to the theft case be sealed on the basis that he

was granted an exoneration of guilt and a discharge.

      The same judge who had accepted Austin’s plea denied the petition, concluding

that Austin’s “profession is one of such public trust, that his interest in having these

documents sealed is far outweighed by the public’s interest in having the records

available.” The lower court also ordered the clerk of court to, in accordance with the

law, “stamp all documents in this case, as well as any in the future” with a specified

notation of discharge and exoneration, and a statement that the “defendant shall not

                                           5
be considered to have a criminal conviction.” See current version of OCGA § 42-8-60

(h); OCGA § 42-8-62 (a) (2009).

      On appeal, Austin contends that the lower court erred in the foregoing

determination because it is contrary to public policy, recent amendments to pertinent

statutes, and the primary purpose of OCGA § 42-8-62.1, and it “create[s] a legal

absurdity” when his own interest in restricting access to the record outweighs the

interest of the professional licensing board, which board, he claims, is precluded by

statute from considering applicants’ misdemeanor conviction records obtained from

the Georgia Crime Information Center. We are not persuaded.

      First, even assuming that the professional licensing board is precluded by

statute from considering Austin’s first offender misdemeanor record in its

determination to issue or revoke his dentistry license,4 we reject Austin’s contention

that the lower court’s judgment “create[s] a legal absurdity” in the instant case on the

basis that his own interest in restricting access to the record outweighs the interest of

the professional licensing board. The interests of the professional licensing board do

not control the lower court’s determination whether to seal records of the clerk’s


      4
       Compare OCGA § 43-1-19 (q) (1) and OCGA § 43-1-19 (a) (2). See generally
§§ 43-1-24, 14-7-2.

                                           6
office, in the public interest. Second, although it is true as Austin asserts that “in

construing statutes, the courts must try to effectuate the intent of the legislature,” this

Court has recognized that “that does not mean that the Court is permitted to rewrite

statutes to promote policies that are not expressed in that legislation . . . . We are

bound to effectuate the intent of the legislature as expressed in the words and

language of the text that the legislature has deemed to enact.” (Citations, footnote,

and punctuation omitted.) Nasir v. Gwinnett County State Court, 341 Ga. App. 63,

69 (798 SE2d 695) (2017) (special concurrence). Here, because “the plain language

of the text of the statute is only susceptible to one reasonable interpretation, [the

lower] court [had no] need [to] resort to other rules of construction,” (Citation

omitted.) Id. at 68, and was required to “construe the statute according to its terms.”

(Citation and punctuation omitted.) Id. at 67.

       OCGA § 42-8-62.1 (d) pertinently requires a court to order the sealing of all

criminal documents and records that are in the custody of the clerk of court, if the

court finds “by a preponderance of the evidence” that the defendant has been

exonerated of guilt and discharged from a first offender sentence and “[t]he harm

otherwise resulting to the privacy of the individual outweighs the public interest in

the criminal history record information being publicly available.” “Medicaid is a

                                            7
federal-state program under which the federal government provides financial

assistance to states to enable them to provide medical care to needy individuals.”

(Footnote omitted.) Toal v. Dekalb Medical Center, 247 Ga. App. 349, 350 (542

SE2d 184) (2000). Medicaid patients receive “treatment . . . funded by public money.”

(Emphasis supplied.) Porter v. Guill, 298 Ga. App. 782, 786 (1) (681 SE2d 230)

(2009). Austin pled guilty to six counts of “knowingly and willfully, and with the

intent of depriving the State of Georgia Medicaid program of funds, . . . caus[ing] to

be submitted a false claim to the Medicaid program” to receive payment for services

he did not perform. The indictment reflects that each count involved a different

patient and was committed on a different day, over a span of about five years. A

factual basis for the plea was presented to the court at the time the plea was entered,

and reflected that the “crime[s] involv[ed] deceit and the theft of public funds,”

Malloy v. State, 329 Ga. App. 38, 40 (1) (763 SE2d 501) (2014) (physical precedent

only), on six separate occasions, with regard to the accounts of six different members

of the public, and on a continual basis.

      The “preponderance of the evidence” standard which applied to the lower

court’s determination,



                                           8
      means that superior weight of evidence upon the issues involved, which,
      while not enough to free the mind wholly from a reasonable doubt, is yet
      sufficient to incline a reasonable and impartial mind to one side of the
      issue rather than to the other. . . .[T]he standard requires only that the
      finder of fact be inclined by the evidence toward one side or the other.


(Citations and punctuation omitted.) State v. Bunn, 288 Ga. 20, 22 (701 SE2d 138)

(2010). The lower court expressly stated in its order that it had “applied the [requisite]

balancing test . . . to determine whether the records of the above-styled case should

be sealed.”5 Austin’s plea of guilty to repeated violations of public trust in connection

with his dental profession authorized the lower court to be inclined by the superior

weight of evidence toward allowing the record to be available to the public rather




      5
         Notably, the lower court was not required to issue written factual findings.
When a trial court considers a request to limit public access to first offender
sentencing information, both subsections (b) and (d) of OCGA § 42-8-62.1 require
that the same balancing test be applied, i.e, weighing the public’s interest in the
defendant’s criminal history record information being publicly available and the harm
to the defendant’s privacy; but only subdivision (b) requires that the trial court issue
written findings of fact upon doing so. Subsection (b) sets forth the procedure for
individuals who, at the time of sentencing, seek to limit public access to his or her
first offender sentencing information. But it is subsection (d) that controls this case
and sets forth the procedure for individuals who have been exonerated of guilt and
discharged.

                                            9
than ordering that the record be sealed.6 Accordingly, the trial court did not err. See

generally Id. at 23.

      Judgment affirmed. Ellington, P. J., and Andrews, J., concur.




      6
         We decline to apply Meinken v. Burgess, 262 Ga. 863 (426 SE2d 876) (1993)
to this case. In Meinken, the statute at issue was OCGA § 35-3-37, and not OCGA §
42-8-62.1 which controls this case.

                                          10
