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Howard v. State

Court of Appeals of Mississippi

April 11, 2017

JOSHUA HOWARD A/K/A JOSHUA L. HOWARD APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          Date of Judgment: 10/02/2015

         COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT HON. WILLIAM E. CHAPMAN III TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: CYNTHIA ANN STEWART.

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL: BY: SCOTT STUART JASON L. DAVIS.

          BEFORE LEE, P.J., ISHEE AND GREENLEE, JJ.

          GREENLEE, J.

         ¶1. Joshua Howard appeals from the Rankin County Circuit Court's denial of his motion for an expungement following his gubernatorial pardon. Pursuant to the controlling precedent of Polk v. State, 150 So.3d 967 (Miss. 2014), we affirm.

         FACTS AND PROCEEDINGS BELOW

         ¶2. In 2009, Howard pleaded guilty to statutory rape and was sentenced to a term of twenty years, with seventeen years suspended. On January 10, 2014, the Governor of the State of Mississippi granted a full, complete, and unconditional pardon for Howard's conviction. On June 25, 2014, Howard filed a motion in the Circuit Court of Rankin County asking that all records be expunged relating to the conviction for which he received the pardon. The court denied his motion, and Howard appeals.

         DISCUSSION

         ¶3. The issue in this appeal is whether the judiciary is required to order an expungement after a gubernatorial pardon is issued pursuant to Article 5, Section 124 of the Constitution of the State of Mississippi. In a five to four decision, the Mississippi Supreme Court held in Polk, 150 So.3d at 968 (¶5), that pardoned individuals are not entitled to an expungement under current Mississippi law.

         ¶4. The Polk majority held that the expungement of criminal records that have been kept pursuant to Mississippi Code Annotated section 45-21-1 (Rev. 2015) is "an act of legislative grace, " and that neither our State nor our Federal Constitution provides a right to an expungement. Polk, 150 So.3d at 968 (¶6). The court stated that "an unconditional pardon solely removes all legal punishment for the offense and prevents any future legal disability based on that offense. It does not edit history." Id. at 970 (¶13). Ultimately, the court held: "There being no statutory basis for expungement of the record of the criminal conviction for which [the appellant] was pardoned, the trial court correctly denied [the appellant's] petition to expunge the record(s) pertaining to his criminal conviction." Id. at (¶14).

         ¶5. The minority opinion in Polk proffered that a criminal record itself is a punishment, and that to fully effectuate the function of a pardon, the record should be expunged. Polk, 150 So.3d at 973 (¶23) (Kitchens, J., dissenting in part). See United States v. Padelford, 76 U.S. 531, 542 (1869) (superseded in part by statute) ("In the case of Garland, this court held the effect of a pardon to be such 'that in the eye of the law the offender is as innocent as if he had never committed the offence.'") (quoting Ex parte Garland, 71 U.S. 333, 380 (1866). Given the broad scope of a pardon, the minority would have found that Mississippi's general expungement statute entitles those pardoned to an expungement. Polk, 150 So.3d at 973 (¶24) (Kitchens, J., dissenting in part); Miss. Code Ann. § 99-15-26(5) (Rev. 2015) ("Upon petition therefor, the court shall expunge the record of any case in which 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.").

         ¶6. The majority holding in Polk has been reaffirmed in Jones v. State, 158 So.3d 1144, 1146 (¶6) (Miss. 2015), and Robertson v. State, 158 So.3d 280, 281 (¶1) (Miss. 2015).[1]Polk is fully applicable to Howard's ...


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