APPEAL FROM THE NEWTON COUNTY CIRCUIT COURT. NO. CR-2009-064-4. HONORABLE GORDON WEBB, JUDGE.
Laws Law Firm, P.A., by: Hugh R. Laws, for appellant.
Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.
RHONDA K. WOOD, Associate Justice. HANNAH, C.J., and WYNNE, J., concur in part and dissent in part. WYNNE, J., joins.
RHONDA K. WOOD, Associate Justice.
Cameron Bolin appeals the denial of his petition to seal his misdemeanor and felony convictions. He contends (1) that the court erred by retroactively applying the Comprehensive Criminal Record Sealing Act (CCRSA) instead of the Community Punishment Act (CPA), which was in effect at the time he committed his offenses; (2) that retroactive application of the CCRSA violates the prohibition against ex post facto laws; and (3) that even if it was appropriate to retroactively apply the CCRSA to his felonies, the records related to his misdemeanors should have been sealed. We find that the circuit court erred in retroactively applying the CCRSA to Bolin's felony conviction, and we reverse and remand for the court to apply the CPA to Bolin's felony conviction and the CCRSA to his misdemeanor convictions.
I. Background and Relevant Facts
Bolin pled no contest to two misdemeanors and one Class D felony in January 2011. He was sentenced to 90 days of
probation for the misdemeanors and three years of probation for the felony. At the time of his sentencing, the Community Punishment Act allowed Bolin to petition the court to expunge the record of his offense upon the successful completion of probation. Ark. Code Ann. § 16-93-1207(b)(1) (Repl. 2006). Subsequent to Bolin's sentencing, but before the completion of his probation for the felony, the General Assembly passed Act 1460 of 2013, known as the Comprehensive Criminal Record Sealing Act of 2013. The CCRSA created a uniform procedure for sealing a person's record and detailed the circumstances in which individuals were eligible to have their records sealed.
Of importance to this appeal, the CCRSA amended the CPA so that the procedure for sealing records under the CPA would be in accordance with the CCRSA. Ark. Code Ann. § 16-93-1207(b)(3) (Supp. 2013). The CCRSA requires that a person must wait five years after the completion of the sentence in order to be eligible to have the records of a Class D felony sealed as opposed to immediate eligibility for expungement upon completion of the sentence, which was available under the CPA. Ark. Code Ann. § 16-90-1406(a)(1) (Supp. 2013). As to misdemeanors, the CCRSA provides that a person becomes eligible to petition to seal those records 60 days after the completion of the person's sentence for the offense. Ark. Code Ann. § 16-90-1405(a)(1) (Supp. 2013). The CCRSA also superseded all other inconsistent provisions of the Arkansas Code, except for a few exceptions that are not relevant to this appeal. Ark. Code Ann. § 16-90-1403(b) (Supp. 2013).
The CCRSA became effective on January 1, 2014. Bolin completed his felony probation on January 19, 2014, and petitioned the court to seal all of his records. The State neither objected nor responded to Bolin's petition. The circuit court denied Bolin's petition without a hearing, holding that Bolin was required to wait five years after completing his probation before the records could be sealed under the CCRSA.
Before considering the merits of Bolin's appeal, we first consider the State's contention that Bolin failed to preserve his arguments. As a general rule, we will not consider arguments raised for the first time on appeal, and an argument is not preserved for appellate review unless a party raises a specific objection and the circuit court rules on that objection. Gulley v. State, 2012 Ark. 368, at 6, 423 S.W.3d 569, 574 . However, we have recognized an exception in situations where a party has no opportunity to present his arguments to the circuit court. Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988); Olson v. Olson, 2014 Ark. 537, 453 S.W.3d 128. As in Harrell, Bolin's case was disposed of by the circuit court without notice, without a hearing, and without an opportunity for Bolin to present any arguments. The lack of development in circuit court was at least partially exacerbated by the State's failure to respond to Bolin's petition. With no opposition from the State and with Bolin believing himself to be entitled to have his records sealed under the former version ...