Close drug offender’s record, appeals court rules

A Benton County circuit judge wrongly rejected a petition from a man, who pleaded guilty to four felony drug charges, to seal his criminal record, the state Court of Appeals ruled Wednesday in a 4-2 ruling.

The appeals court reversed Circuit Judge Brad Karren’s ruling in the case of Joshua H. Turley and sent it back toKarren to issue an order complying with the court’s opinion.

Turley pleaded guilty to four felony drug charges on Aug. 24, 2009.

He was placed on six years’ probation under Act 346 of 1975, which authorizes a trial court to defer proceedings, place a first-time offender on probation and then the dismiss the case and expunge the record at the termination of the defendant’s probation. Theplea agreement, order and probation agreement were filed on Sept. 1, 2009.

On Aug. 29, 2012, an order, agreed to by the state, was filed releasing Turley early from his probation. The order stated that Turley had “served his time … remained on good behavior and complied with all of his probation officer’s requests and directives.”

Days later Turley filed a petition to dismiss and seal his record. But the state reversed its earlier position and opposed Turley’s petition, arguing that Turley had violated the terms and conditions of his probation when he was found guilty of consuming alcohol and driving while intoxicated on March 6, 2011.

After a hearing in November 2012, the trial court declined to seal Turley’s record.

The trial court found that while Turley had been releasedearly from his probation, he had violated his probation by driving drunk in March 2011.

But the court of appeals, in an opinion written by Judge David Glover, said Turley was entitled to have his record expunged anyway.

Under the law, eligible first-time offenders “shall” have their record expunged “upon fulfillment of the terms and conditions of probation orupon release by the court prior to the termination thereof.”

While Turley “freely admits” that he violated the terms and conditions of his probation, he argued that he is not attempting to have his record expunged based on his own conduct, the appeals court noted.

“Rather, he contends that the trial court is required to expunge his record because he has been released by the court prior to the termination of his probation period, and, in that situation, the statute requires that the trial court shall discharge the defendant without court adjudication of guilt. We agree with his assertion,” the appeals court said.

The state apparently agreed to Turley’s early release from probation without researching whether Turley had been compliant with the terms and conditions of his probation, and the trial court was required to expunge Turley’s record when he was released from his probation early by the trial court’s order, according to the appeals court.

Judge Rita Gruber, who wrote the dissenting opinion, said she believes a trial court has discretion to grant or deny expungement under state law.

“The majority’s interpretation leads to an absurd result, requiring a court to expunge the record of defendants who admittedly violated terms and conditions of their probation if they were released before the term expired, but allowing a court to deny expungement to defendants who also violated terms and conditions of probation but who served the entire probationary period,” she wrote.

Judges Larry Vaught, Phillip Whiteaker and Robin Wynne agreed with Glover. Judge Brandon Harrison agreed with Gruber.

Northwest Arkansas, Pages 7 on 06/27/2013

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