March 2, 2015
BRIGHT et al
Criminal history records. Wilkinson Superior Court. Before Judge Brown.
Ashley L. Deadwyler, for appellant.
Fredric D. Bright, District Attorney, Daniel B. Cochran, Assistant District Attorney, for appellees.
PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.
Phipps, Chief Judge.
Indicted on numerous counts of sexual offenses, Troy Lee Gibbs was brought to trial in the Superior Court of Wilkinson County, which proceeding ended by mistrial after the jury failed to reach a verdict. At his second trial, the jury found Gibbs guilty of nine counts of child molestation, two counts of enticing a child for indecent purposes, and two counts of solicitation of sodomy; Gibbs was sentenced to imprisonment. But Gibbs's convictions were reversed by this court, and after the case was remitted to the superior court in October 2007, an order of nolle prosequi was entered. Thereafter, in February 2014, Gibbs petitioned the Superior Court of Wilkinson County, pursuant to Georgia's record-restriction statute, OCGA § 35-3-37, to restrict access to his criminal history record information for the underlying [330 Ga.App. 852] offenses, and to grant him attorney fees
incurred in pursuing said record restriction. In his petition, Gibbs named as respondents the Wilkinson County District Attorney, Fred Bright, as well as the Wilkinson County Sheriff's Office. The superior court conducted a hearing, then denied Gibbs's petition. Gibbs appeals. For reasons that follow, we affirm.
At the hearing, the state argued that Gibbs's petition was governed by paragraph (j) (2) of OCGA § 35-3-37, which states:
When an individual was convicted of an offense and was sentenced to punishment other than the death penalty, but such conviction was vacated by the trial court or reversed by an appellate court or other post-conviction court, the decision of which has become final by the completion of the appellate process, and the prosecuting attorney has not retried the case within two years of the date the order vacating or reversing the conviction became final, such individual may petition the superior court in the county where the conviction occurred to restrict access to criminal history record information for such offense... . If a hearing is requested, ... [t]he court shall hear evidence and shall determine whether granting an order restricting such criminal history record information is appropriate, giving due consideration to  the reason the judgment was reversed or vacated,  the reason the prosecuting attorney has not retried the case, and  the public's interest in the criminal history record information being publicly available.
As to the first of these three factors, the state cited that the judgment was reversed because Gibbs's trial counsel had rendered ineffective assistance. Regarding the second such factor, the state proffered that the reason it had not again tried the case was that Gibbs had already served three years in prison after having two one-week-long trials. The court then turned to the assistant district [330 Ga.App. 853] attorney who had represented the state at Gibbs's trials, and asked for " [a]nything on the second [factor]?" She responded:
[W]hen the case came back [from the Court of Appeals], because I had been the one that had been prosecuting it in both cases, there was some question as to, you know, was the State going to retry the case. We got in touch with the victim who had moved and married. Didn't want to come back and do this for a third time. Very frustrated with the system. And so I communicated that to Mr. Bright [the district attorney]. And he put that, the reason, that he did on there. But it was not a recanted, state this on the record, she did not recant. She did not say it didn't happen. She didn't say, you know oh well, you know, never mind. She just said: I don't want to go through this a third time. And, additionally, our similar transaction witnesses didn't want to go through it a third time. So, we had three victims saying: we don't want to do this again. And so out of respect to them, they made the decision to dismiss the case.
With respect to the third factor, the state asserted that it was important that the " public know[ ] that [Gibbs] has been previously charged with being a child molester and convicted, but reversed."
In ruling upon Gibbs's petition, the superior court stated in its order:
[T]he Court, pursuant to OCGA § 35-3-37 (j), finds as follows: Restricting petitioner's criminal history record is not appropriate in considering those factors specific to this case, and it is in the public's interest that the criminal history information be publicly available; Further, it is the finding of this Court that that public interest clearly outweighs the harm resulting to the Petitioner with that information being publicly available. Petitioner's requests to restrict ... record and for attorney's fees are therefore DENIED.
In this direct appeal, Gibbs contends that the superior court misapplied [330 Ga.App. 854] the cited statutory
provision, OCGA § 35-3-37 (j), advancing two arguments.
1. Gibbs contends that the superior court erred by determining that subsection (j) governed his petition. He points out that the order of nolle prosequi was entered in March 2009. Therefore, Gibbs maintains in his brief:
When the prosecuting attorney entered a nolle prosequi rather than waiting the two-year period referred to in (j) (2), the (h) (2) (A) provision was triggered, thus qualifying [him] automatically for record restriction rather than requiring the application of the discretionary (j) (2) balancing test.
The provision Gibbs maintains governs his petition, OCGA § 35-3-37 (h) (2) (A), states:
Access to an individual's criminal history record information, including any fingerprints or photographs of the individual taken in conjunction with the arrest, shall be restricted by the center for the following types of dispositions: ... (2) After indictment or accusation: (A) Except as provided in subsection (i) of this Code section,[] all charges were dismissed or nolle prossed[.]
We cannot agree with Gibbs that his petition is governed by OCGA § 35-3-37 (h) (2) (A), as opposed to OCGA § 35-3-37 (j) (2). The General Assembly, in enacting paragraph (j) (2), set forth detailed criteria as to its applicability:
When an individual was convicted of an offense and was sentenced to punishment other than the death penalty, but such conviction was vacated by the trial court or reversed by [330 Ga.App. 855] an appellate court or other post-conviction court, the decision of which has become final by the completion of the appellate process, and the prosecuting attorney has not retried the case within two years of the date the order vacating or reversing the conviction became final... .
While the General Assembly could have carved from such specific parameters an exception, so as to exclude from that paragraph's purview instances where a nolle prosequi was entered within the referenced two-year period, it did not. Where, as here, a statute contains both a general provision and a specific one, " the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision." 
In light of the foregoing, the trial court did not err in determining that OCGA § 35-3-37 (j) (2) governed Gibbs's petition, as it is without question that the underlying circumstances -- including the conviction, sentencing, reversal, lack of a subsequent retrial, and timing of Gibbs's petition to restrict records -- satisfied that Code provision's detailed applicability criteria.
2. Alternatively, Gibbs contends that the trial court abused its discretion in determining that the three factors set forth in OCGA § 35-3-37 (j) (2) weighed against him.
At the hearing, Gibbs's attorney addressed each factor as follows. Regarding the first (the reason the judgment was reversed), Gibbs's attorney pointed out that the conclusion of ineffectiveness was premised, in part, upon Gibbs's trial counsel's failure to present to the jury potentially exculpatory evidence. Countering the state's proffer with respect to the second factor (the reason the prosecuting attorney had not tried the case again), Gibbs's attorney claimed that the fact " that [Gibbs] had already served some kind of punishment for a crime that he was never convicted of ... should weigh in his favor, rather than in the prosecution's favor." And turning to the third factor [330 Ga.App. 856] (the public's interest in the criminal history record information being publicly available), Gibbs's attorney asserted that Gibbs's " personal private interest in being free from the record outweighs the public interest in having that record available."
On appeal, however, Gibbs has cited no authority demonstrating that the superior court erred in its determination that restricting his criminal history record was not appropriate. The record confirms that, upon Gibbs's petition, the court convened a hearing, allowed the parties to present evidence and argument, and invoked the correct legal standard.
[B]ecause potential harm to individuals is the natural consequence of the maintenance and dissemination of criminal records ..., the balancing test should not be tipped in the defendant's favor solely on the basis of the potential harm that could accrue to a defendant in any given case.
Here, the arguments and evidence presented to the superior court did not require a finding of a diminished interest by the public in Gibbs's criminal history record information;  nor did they mandate a conclusion that restricting such information was appropriate.
Because Gibbs has failed to demonstrate merit in his contention that the trial court erred by determining, based upon its consideration of the factors set forth in OCGA § 35-3-37 (j) (2), that restricting his criminal history record information was not appropriate, Gibbs has presented no basis for disturbing the denial of his petition.
Ellington, P. J., and McMillian, J., concur.