Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 27, 2018
from the Circuit Court for McMinn County Nos. 93-233, 93-234,
93-511 Andrew Freiberg, Judge
petitioner, Mark D. Moraca, appeals the denial of his motion
to expunge the records of his 1994 convictions for simple
possession of amphetamine and simple possession of cocaine.
Discerning no error, we affirm.
R. App. P. 3; Judgment of the Circuit Court Affirmed
Douglas A. Trant, Knoxville, Tennessee, for the appellant,
Mark D. Moraca.
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin A. Ball, Assistant Attorney General; and Stephen D.
Crump, District Attorney General, for the appellee, State of
Curwood Witt, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr.,
CURWOOD WITT, JR., JUDGE
22, 1994, the petitioner pleaded guilty to one count of
driving under the influence ("DUI"), one count of
simple possession of amphetamine, and one count of simple
possession of cocaine in exchange for a sentence of 11 months
and 29 days to be served as 48 hours' incarceration
followed by probation. In 2017, the pro se petitioner
petitioned the McMinn County Circuit Court to expunge the
records of his simple possession convictions pursuant to
Tennessee Code Annotated section 40-32-101. The State
conceded that the petitioner was statutorily qualified for
expunction and did not oppose the petition. On July 3, 2017, the
trial court entered an order denying the petition, holding
that the petitioner's conviction of DUI barred the
expunction of the simple possession convictions.
timely appeal, the petitioner challenges the trial
court's denial of his petition for expunction, arguing
that the trial court misapplied Code section 40-32-101 and
that the trial court abused its discretion by denying his
petition. The State avers that the trial court did not err.
issue in this case is the correct application of Code section
40-32-101 to the circumstances of this case, which we review
de novo. See, e.g., State v. Howard, 504
S.W.3d 260, 267 (Tenn. 2016).
most basic principle of statutory construction is
"'to ascertain and give effect to the legislative
intent without unduly restricting or expanding a
statute's coverage beyond its intended scope.'"
Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676,
678 (Tenn. 2002) (quoting Owens v. State, 908 S.W.2d
923, 926 (Tenn. 1995)). "Legislative intent is
determined 'from the natural and ordinary meaning of the
statutory language within the context of the entire statute
without any forced or subtle construction that would extend
or limit the statute's meaning.'" Osborn v.
Marr, 127 S.W.3d 737, 740 (Tenn. 2004) (quoting
State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)).
"When the statutory language is clear and unambiguous,
we apply the plain language in its normal and accepted
use." Boarman v. Jaynes, 109 S.W.3d 286, 291
(Tenn. 2003) (citing State v. Nelson, 23 S.W.3d 270,
271 (Tenn. 2000)). "It is only when a statute is
ambiguous that we may reference the broader statutory scheme,
the history of the legislation, or other sources."
In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn.
2010) (citing Parks v. Tenn. Mun. League Risk Mgmt.
Pool, 974 S.W.2d 677, 679 (Tenn. 1998)).
section 40-32-101 permits those persons convicted of certain
offenses and sentenced to a term of less than three years to
petition for expunction of the records of those convictions
upon meeting certain requirements. See T.C.A. §
40-32-101(g)(1)(A), (B). The statute lists simple possession
as a conviction eligible for expunction, see id.
§ 40-32-101(g)(1)(A)(xxxv), but specifically
"exclude[s] from consideration" for expunction a
conviction of DUI, see id. §
40-32-101(g)(1)(B)(xlv). Consideration for expunction is
generally limited to those who have "never been
convicted of any criminal offense, including federal offenses
and offenses in other states, other than the offense
committed for which the petition for expunction is filed,
" see id. § 40-32-101(g)(2)(A), with one
very narrow exception:
A person who was convicted of more than one (1) of the
offenses listed in this subdivision (g)(1), if the conduct
upon which each conviction is based occurred
contemporaneously, occurred at the same location, represented
a single continuous criminal episode with a single criminal
intent, and all such convictions are eligible for expunction
under this part. The offenses of a person who is an eligible
petitioner under this subdivision (g)(1)(E) shall be
considered a single offense for the ...