JOSHUA HOWARD A/K/A JOSHUA L. HOWARD APPELLANT
STATE OF MISSISSIPPI APPELLEE
of Judgment: 10/02/2015
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.
LEE, P.J., ISHEE AND GREENLEE, JJ.
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.
AND PROCEEDINGS BELOW
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.
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.
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).
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.").
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).Polk is fully applicable
to Howard's ...