Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 12, 2014
Direct Appeal from the Criminal Court for Davidson County No. 2005-A-31 Monte Watkins, Judge
Dawn Deaner, District Public Defender; Emma Rae Tennent and Jerrilyn Manning, Assistant Public Defenders, for the appellant, Roger Brookman.
Herbert H. Slatery III, Attorney General & Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and Robert H. Montgomery, Jr., JJ., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
On June 21, 2004, Detective William Kaufman stopped the appellant's vehicle because of an outstanding warrant against the appellant. The appellant was arrested and later confessed to the burglary of forty homes. Thereafter, on January 21, 2005, the Davidson County Grand Jury returned a multi-count indictment against the appellant, charging him with two counts of burglary, sixteen counts of aggravated burglary, three counts of theft of property, and one count of unlawful possession of a weapon during an offense. On July 20, 2005, the appellant pled guilty to six counts of aggravated burglary, for which he received a total effective sentence of eighteen years. Pursuant to the plea agreement, the remaining charges were dismissed.
On January 28, 2014, the appellant filed a motion asking the trial court to expunge the dismissed counts from his record, and a hearing was held. Elaine Ragan, the Division Chief of the Davidson County Criminal Court Clerk's Office, testified that the record of a criminal case consisted of minute entries, dockets, discovery, and reports. Ragan said that the appellant's "official records" and "electronic records" reflected that all but six of the twenty-two charges against him were dismissed.
Ragan said that when an expunction order was entered, the documents relating to the dismissed charges were not destroyed but were "heavily redacted." She asserted that it would require "intensive effort" by her office to "cross-referenc[e] everything" and to ensure that only the information relating to the dismissed counts was redacted. When asked whether all of the counts were "inter-related, " Ragan responded, "Yes, or they wouldn't be presented in the same case." Ragan said that after the redactions, the clerk's office would be unable to return the record to the way it was on the day of the appellant's arraignment.
The State argued that the legislature's recent amendments to the expunction statute indicated "that these types of expungements are not favored and not to be granted." The State further argued that ordering expunction would impose a great hardship upon the clerk's office. The State contended that the dismissed counts were "inextricably intertwined" with the counts for which the appellant was convicted and questioned the timing of the appellant's motion. Conversely, defense counsel argued that regardless of when the appellant filed his motion, the statute at the time the appellant was convicted and sentenced was the applicable statute and would have allowed expunction of the dismissed charges. Defense counsel also argued that the charges were inter-related by only "the type of charge and the defendant, " explaining:
I will concede that Counts three and four may be intertwined, because they shared the same victim. But the other counts occurred – they had different victims, they occurred on different dates. Some of them alleged home burglaries. One of them alleged burglaries that – other than [a] habitation. Some of them allege the taking of personal property. So they are . . . not so inextricably intertwined as to prevent the court from granting this request for expungement.
After taking the matter under advisement, the trial court found that the cases were "impossibly intertwined" and denied the motion. On ...