State v. Brown

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO. 60CR-09-1130], HONORABLE HEBERT T. WRIGHT, JUDGE

         Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellant.

         Short Law Firm, by: Lee D. Short, Little Rock, for appellee.

         OPINION

         SHAWN A. WOMACK, Associate Justice

          The State of Arkansas appeals the circuit court’s order to expunge Kentara Brown’s felony conviction under Act 531 of 1993. The State contends that Brown was ineligible for expungement under the Act and the circuit court’s order was erroneous

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as a matter of law. We reverse and remand to set aside the order to expunge.

          I.

         Brown pleaded guilty to Class C felony theft of property in 2009. See Ark. Code Ann. § 5-36-103 (Repl. 2006). She was sentenced to three years of probation. The State conceded that Brown was initially placed on probation under Act 531, also known as the Community Punishment Act. See Ark. Code Ann. § § 16-93-1201 to -1210 (Repl. 2006). The original judgment and disposition order left unmarked a blank next to the statement: "Defendant committed a target offense and was sentenced under the Community Punishment [A]ct. Upon successful completion of the conditions of probation/S.I.S. Defendant shall be eligible to have [her] records sealed." The conditions of probation, however, referenced Act 531.

          In 2011, the State petitioned to revoke the original order after Brown failed to comply with the conditions of probation. She pleaded guilty to the revocation charge. The circuit court entered a new judgment and disposition order resentencing Brown to four years of probation for the theft-of-property conviction. Like the original order, the new order included a blank next to a statement indicating whether the sentence was under Act 531 and eligible for expungement. This time, the circuit court wrote "no" in the blank. The new conditions of probation likewise omitted any reference to the Act.

          In 2018, Brown petitioned to expunge her conviction under Act 531. The State objected. It argued that revocation of the original order meant that she failed to successfully complete probation under the Act. Because the postrevocation order was explicitly not under Act 531, the State argued Brown was ineligible for expungement under either order.

          The circuit court granted Brown’s petition to expunge her conviction under Act 531. An order to expunge was subsequently entered. In the order, the court concluded that Brown had been sentenced under Act 531 and that she had "satisfactorily complied" with the court’s orders. It referenced only the original three-year probation order. The postrevocation order was not mentioned. It is from this decision that the State appeals.

          II.

         For its sole point on appeal, the State contends that the circuit court erroneously expunged Brown’s conviction under Act 531. In short, the State argues that Brown failed to successfully complete an order of probation under Act 531 and is thus ineligible for expungement under the Act’s provisions. This argument is twofold. First, the State claims that Brown did not successfully complete the original probation order due to its revocation.^[1] The State also contends that the postrevocation probation order was not under Act 531 and may not be expunged under the Act.

         Though we must typically consider the propriety of the State’s appeal under Arkansas Rule of Appellate Procedure-Criminal 3, we need not do so here. We have consistently held that an appeal from an order to seal a conviction, despite its criminal designation, is civil in nature and not subject to Rule 3. SeeState v. Tyler,2010 Ark. 307, ...