Lead Opinion
for the Court:
¶ 1. This Court is presented with the following issue: whether a convicted felon is entitled to an expungement of her conviction after receiving an executive pardon. Because there is no statutory authority in Mississippi for the courts to order an ex-pungement under these circumstances, we affirm the trial court’s order denying the request for expungement in today’s case.
FACTS
¶ 2. On March 10, 2000, the Tallahat-chie County Grand Jury indicted Rebecca Hentz for one count of conspiracy to manufacture methamphetamine and two counts of attempt to manufacture methamphetamine. On September 25, 2000, Hentz pleaded guilty to one count of attempt to manufacture methamphetamine. The Circuit Court of the First Judicial District of Tallahatchie County sentenced Hentz to thirty years, suspended, unsupervised probation, and a $5,000 fine. The trial court remanded to the file the other counts in Hentz’s indictment.
¶ 3. On January 10, 2012, Governor Haley Barbour granted Hentz a “full, complete, and unconditional pardon” for the attempt-to-manufacture-methamphetamine conviction. Later in 2012, on October 2, Hentz filed a Motion to Expunge Record, claiming that the records of her conviction should be expunged because she had received a pardon. On May 20, 2013, Hentz filed an Amended Motion to Expunge Record, which included additional support for the contention that the records of her conviction should be expunged. After hearing oral argument from Hentz’s counsel, the trial court denied her motion. Hentz then timely appealed to this Court.
ANALYSIS
¶ 4. Hentz raises one issue on appeal: whether a convicted felon may have her criminal record expunged after receiving an executive pardon.
¶ 5. Expungement is statutory in nature, and the Mississippi Legislature has “authorized expungement of criminal offender records in limited cases.... ” Caldwell v. State,
¶ 6. Hentz concedes that there is no statutory provision for expungement in cases of a pardon. Rather than claiming she is statutorily entitled to have her criminal record expunged, Hentz claims that the nature of a pardon itself should permit the expungement. In support of this proposition, Hentz quotes Jones v. Board of Registrars,
If granted after conviction, [the pardon] removes the penalties and disabilities, and restores him [the convict] to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.... A pardon is an act of grace by which an offender is released from the consequences of his offense, so far as such release is practicable and within the control of the pardoning power, or of officers under its direction. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. A pardon of treason or felony, even after an attainder, so far clears the party from the infamy, and all other consequences thereof, that he may have an action against any who shall afterwards call him traitor or felon; for the pardon makes him, as it were, a new man.
Id. at 768 (internal citations and quotations omitted). Although Jones discusses the after-effects of pardon, it does not specifically address expungement. See id.
¶ 7. Hentz also cites Ex parte Crisler,
¶ 8. Jones,
But modern case law emphasizes ... that this historical language was dicta and is inconsistent with current law. See In re North,62 F.3d 1434 , 1437 (D.C.Cir.1994). A pardon in no way reverses the legal conclusion of the court; it “does not blot out guilt or expunge a judgment of conviction.” North,62 F.3d at 1437 ;. see also Nixon v. United States,506 U.S. 224 , 232,113 S.Ct. 732 ,122 L.Ed.2d 1 (1993) (“a pardon is in no sense an overturning of a judgment of conviction by some other tribunal”); Burdick v. United States,236 U.S. 79 , 94,35 S.Ct. 267 ,59 L.Ed. 476 (1915) (a pardon “carries an imputation of guilt”). The effect of a pardon is not to prohibit all consequences of a pardoned conviction, but rather to preclude future punishment for the conviction. See Nixon, 506 U.S. at 232 ,113 S.Ct. 732 ; Bjerkan v. United States,529 F.2d 125 , 127-28 (7th Cir.1975).
Hirschberg v. Commodity Futures Trading Comm’n,
¶9. Further, recent caselaw supports the contention that, absent statutory authority, expungement is not permitted after a pardon. In Eubanks v. State,
¶ 10. Although this Court has not directly addressed the issue presented in today’s case,
¶ 11. Because there is no statutory basis in Mississippi for an expungement after a criminal defendant receives an executive pardon, the trial court in today’s case did
CONCLUSION
¶ 12. For the reasons discussed above, we affirm the judgment of the Circuit Court of the First Judicial District of Tal-lahatchie County.
¶ 13. AFFIRMED.
Notes
. Polk v. State,
. Hentz’s conviction-attempt to manufacture methamphetamine under Mississippi Code Section 97-1-7-is not one of the specific felonies listed in Section 99-19-71. See Miss. Code Ann. § 97-1-7 (Rev. 2014).
. See fn. 1 supra.
. The dissent argues that Mississippi Code Section 99-15-57(2) provides statutory authority for expungement in this case, because it provides for expungement when "an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.” We point out that none of those situations apply. The case was not dismissed, die charges were not dropped, and the case was disposed of via Hentz’s conviction. Indeed, each of these situations are applicable only to cases in which no conviction exists, and thus are clearly inapplicable here.
.See U.S. Const. Art. II § 2, cl. 1; Fletcher v. Graham,
Concurrence Opinion
specially concurring:
¶ 14. Justice King’s opinion is not only well-stated and most persuasive, it reaches the same conclusion agreed to by a majority of the members of this Court, with all nine justices participating, in a prior case. See Polk v. State of Mississippi, 2013-CA-00701-SCT,
¶ 15. Thus, I am constrained to specially concur and express my view that the issuance of a judgment of affirmance is the appropriate disposition of the case sub ju-dice. Today, four justices agree to affirm the trial court’s judgment, and four justices disagree. Thus, the judgment of the trial court should be affirmed. See Rockett Steel Works v. McIntyre,
¶ 16. This disposition was first articulated by Chief Justice Marshall for the United States Supreme Court. Chief Justice Marshall wrote:
No attempt will be made to analyze [the parties’ arguments and cited cases], or to decide on their application to the case before us, because the Judges are divided respecting it. Consequently, the principles of law which have'been argued cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it.
Etting v. Bank of United States,
There is nothing in the fact that the judges of this court were divided in opinion upon the question whether the decree should be reversed or not, and, therefore, ordered an affirmance of the decree of the court below. The judgment of affirmance was the judgment of the entire court. The division of opinion between the judges was the reason for the entry of that judgment; but the reason is no part of the judgment itself.
Durant,
¶ 17. The U.S. Supreme Court has explained that:
it is obvious that that which has been done must stand unless reversed by theaffirmative action of a majority. It has therefore been the invariable practice to affirm, without opinion, any judgment or decree which is not decided to be erroneous by a majority of the court sitting in the cause.... [A]n affir-mance by an equally divided court is ... a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in this or in inferior courts.
Hertz v. Woodman,
¶ 18. Thus, as the judgment of the Circuit Court of Tallahatchie County has not been decided to be erroneous by a majority of the justices sitting in this case, we should affirm without opinion. .
Dissenting Opinion
dissenting:
¶ 19. The breadth of Mississippi common law regarding the effect of a gubernatorial pardon persuades me that Hentz is entitled to an expungement of her criminal record. Because my learned colleagues in the plurality have reached a contrary conclusion, I respectfully dissent.
¶ 20. Hentz received the following pardon on January 10, 2012:
NOW, THEREFORE, I, Haley Barbour, Governor of the State of Mississippi, under and by virtue of the authority vested in me by the Constitution and Laws of this State, do hereby grant to Rebecca Hentz née a/k/a Rebecca What-ley a/k/a Rebecca Hentz a full, complete and unconditional pardon for the crime and conviction named herein; and henceforth, shall be absolved from all legal consequences of this crime and conviction.
(Emphasis added.) This Court’s longstanding jurisprudence regarding the scope of executive pardons tracks that of the United States Supreme Court:
The doctrine of the authorities is, that “a pardon reaches both the punishment prescribed for the offence, and the guilt of the offender,” and that “it releases the punishment and blots out of existence the guilt, so that, in the eye of the law the offender is as innocent as if he had never committed the offense.” “If granted after conviction, it removes the penalties and disabilities, and restores him [the convict] to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.” Ex parte Garland, [71 U.S. 333 ,18 L.Ed. 366 ,]4 Wall. 333 , 380 [ (1866) ]; United States v. Padelford, [76 U.S. 531 ,19 L.Ed. 788 ,]9 Wall. 531 [(1869)]; United States v. Klein, [80 U.S. 128 ,20 L.Ed. 519 ,]13 Wall. 128 [ (1871) ]; Carlisle v. United States, [83 U.S. 147 ,21 L.Ed. 426 ,]16 Wall. 147 [ (1872) ]; Knote v. United States,95 U.S. 149 [,5 Otto 149 ,24 L.Ed. 442 (1877) ]. In the case last cited, it is said that “a pardon is an act of grace by which an offender is released from the consequences of his offence, so far as such release is practicable and within the control of the pardoning power, or of officers under its direction.” “In contemplation of law, it so far blots out the offence.... ”
Jones v. Bd. of Registrars of Alcorn County,
A pardon by the governor is an act of sovereign grace, proceeding from the same source which makes conviction of crime a ground of exclusion from suffrage. The act of absolution is of as high derivation and character as the actof proscription. The pardon must be held to rehabilitate the person in all his rights as a citizen, and to deny to any officer of the State the right to impute to him the fact of his conviction. After the pardon, he is as if he was never convicted. It shall never be said of him that he was convicted. The pardon obliterates the fact of conviction, and makes it as if it never was.
Ex Parte Crisler,
¶ 21. The plurality attempts to distinguish Crisler: “the opinion expressly limits itself to cases of attorney disbarment.” Crisler, decided in 1931, did involve an attorney, disbarred from the practice of law following a conviction of embezzlement, who sought reversal of the order of disbarment. Crisler, 159 Miss, at 249,
¶ 22. In spite of - its broad, sweeping language, the plurality recites that “[t]he language in Garland, however, has since been held to be dicta; and more recent caselaw holds that a pardon does not ‘blot out’ the existence of guilt....” (citing Hirschberg v. Commodity Futures Trading Comm’n,
The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.
Burdick,
¶ 23. The plurality’s citation of ex-pungement eases from the Mississippi Court of Appeals, likewise, is not helpful regarding the effect of a gubernatorial pardon on a convict’s request for expungement. Neither Eubanks v. State,
¶ 24. The plurality further opines that, “[ejxpungement is statutory in nature, and the Mississippi Legislature has ‘authorized expungement of criminal offender records in limited cases.... ’ Caldwell v. State,
¶ 25. Article 5, Section 124, of the Constitution of the State of Mississippi empowers the governor “to grant reprieves and pardons.” Today, the plurality diminishes the effect of gubernatorial pardons in Mississippi. That which previously was regarded as “an act of sovereign grace” now is relegated to a mere piece of paper emblazoned with the dubious phrase “absolved from all legal consequences of this crime and conviction.” I, therefore, dissent.