Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Austin v. State

Court of Appeals of Georgia, Third Division

October 5, 2017

AUSTIN
v.
THE STATE.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          RICKMAN, JUDGE.

         Gordon Austin appeals the lower court's denial of his petition to seal records pursuant to OCGA § 42-8-62.1, Georgia's statute limiting public access to first offender records in the custody of the clerk of court. Finding no error in the trial court's judgment, we affirm.

         The record reflects the following. On August 6, 2009, in the Superior Court of Carroll County, Austin, a dentist, entered a negotiated plea of guilty pursuant to North Carolina v. Alford[1] and Georgia's first offender law, OCGA § 42-8-60[2] et seq., to six misdemeanor counts of theft by taking in connection with alleged fraudulent billing of the State of Georgia Medicaid program. Austin was sentenced to serve 5 years on probation. In April 2012, Austin filed a motion for early termination of his probation. The record reflects that in June 2012, the lower court entered an order granting his motion, and terminating his probation, "as of June 8, 2012." On August 18, 2016, the lower court entered an "Order of Discharge, " which contained a handwritten notation of "nunc pro tunc the 8th of June, 2012." That document ordered and directed that, "in accordance with the provisions of the . . . First-Offenders Act, " Austin be discharged without court adjudication of guilt; the discharge shall completely exonerate Austin of any criminal purpose, not affect any of Austin's civil rights or liberties, and not be used to disqualify Austin in any application for public or private employment or appointment to office; and Austin shall not be considered to have a criminal conviction.

         On July 13, 2016, Austin filed a petition to seal his records pursuant to OCGA § 42-8-62.1 (d). OCGA § 42-8-62.1 (c) and (d) provide as follows.

(c) An individual who has been exonerated of guilt and discharged pursuant to this article, including those individuals exonerated of guilt and discharged prior to July 1, 2016, may petition the court that granted such discharge for an order to seal and make unavailable to the public the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index. Notice of such petition shall be sent to the clerk of court and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient notice.
(d)Within 90 days of the filing of a petition pursuant to subsection (c) of this Code section, the court shall order the criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index, to be sealed and made unavailable to the public if the court finds by a preponderance of the evidence that: (1) An exoneration of guilt and discharge has been granted pursuant to this article; and (2) The harm otherwise resulting to the privacy of the individual outweighs the public interest in the criminal history record information being publicly available.

(Emphasis supplied.)

         In the petition to seal his records, Austin claimed that in June 2016, the clerk of the Carroll County Superior Court transmitted to a media news organization copies of the accusation and plea agreement which did not contain "any designation or markings relating to [his] First Offender discharge or any other statutorily prescribed language to indicate exoneration of guilt or discharge, " and that "[s]ubsequently, these transmitted documents were published online and reports of [his] 'guilt' in relation to these charges have been widely promoted by various media outlets . . . . [and] has resulted in direct and continuing harm to [his] reputation and privacy."[3]According to the article that Austin attached to his petition, news about the theft plea surfaced after Austin had been selected as a delegate to represent the state at a certain political party convention. In his petition, Austin asserted that "[t]he public dissemination of this information has caused and continues to cause personal and professional damage to Defendant-Petitioner, by interfering with his ability to practice dentistry and creating a negative public image through media publication." He claimed that "[t]he public interest in [his] criminal history record information being publicly available is negligible, if any. . . . [and] is far better served by the sealing of [his] record." Austin asserted that the purpose of the first offender statute is to "protect the first offender from the stigma of having a criminal record with regard to the crime for which the defendant was given first offender treatment, " and he requested that all records relating to the theft case be sealed on the basis that he was granted an exoneration of guilt and a discharge.

         The same judge who had accepted Austin's plea denied the petition, concluding that Austin's "profession is one of such public trust, that his interest in having these documents sealed is far outweighed by the public's interest in having the records available." The lower court also ordered the clerk of court to, in accordance with the law, "stamp all documents in this case, as well as any in the future" with a specified notation of discharge and exoneration, and a statement that the "defendant shall not be considered to have a criminal conviction." See current version of OCGA § 42-8-60 (h); OCGA § 42-8-62 (a) (2009).

         On appeal, Austin contends that the lower court erred in the foregoing determination because it is contrary to public policy, recent amendments to pertinent statutes, and the primary purpose of OCGA § 42-8-62.1, and it "create[s] a legal absurdity" when his own interest in restricting access to the record outweighs the interest of the professional licensing board, which board, he claims, is precluded by statute from considering applicants' misdemeanor conviction records obtained from the Georgia Crime Information Center. We are not persuaded.

         First, even assuming that the professional licensing board is precluded by statute from considering Austin's first offender misdemeanor record in its determination to issue or revoke his dentistry license, [4] we reject Austin's contention that the lower court's judgment "create[s] a legal absurdity" in the instant case on the basis that his own interest in restricting access to the record outweighs the interest of the professional licensing board. The interests of the professional licensing board do not control the lower court's determination whether to seal records of the clerk's office, in the public interest. Second, although it is true as Austin asserts that "in construing statutes, the courts must try to effectuate the intent of the legislature, " this Court has recognized that "that does not mean that the Court is permitted to rewrite statutes to promote policies that are not expressed in that legislation . . . . We are bound to effectuate the intent of the legislature as expressed in the words and language of the text that the legislature has deemed to enact." (Citations, footnote, and punctuation omitted.) Nasir v. Gwinnett County State Court, 341 Ga.App. 63, 69 (798 S.E.2d 695) (2017) (special concurrence). Here, because "the plain language of the text of the statute is only susceptible to one reasonable interpretation, [the lower] court [had no] need [to] resort to other rules of construction, " (Citation omitted.) Id. at 68, and was required to "construe the statute according to its terms." (Citation and punctuation omitted.) Id. at 67.

         OCGA § 42-8-62.1 (d) pertinently requires a court to order the sealing of all criminal documents and records that are in the custody of the clerk of court, if the court finds "by a preponderance of the evidence" that the defendant has been exonerated of guilt and discharged from a first offender sentence and "[t]he harm otherwise resulting to the privacy of the individual outweighs the public interest in the criminal history record information being publicly available." "Medicaid is a federal-state program under which the federal government provides financial assistance to states to enable them to provide medical care to needy individuals." (Footnote omitted.) Toal v. Dekalb Medical Center, 247 Ga.App. 349, 350 (542 S.E.2d 184) (2000). Medicaid patients receive "treatment . . . funded by public money." (Emphasis supplied.) Porter v. Guill, 298 Ga.App. 782, 786 (1) (681 S.E.2d 230) (2009). Austin pled guilty to six counts of "knowingly and willfully, and with the intent of depriving the State of Georgia Medicaid program of funds, . . . caus[ing] to be submitted a false claim to the Medicaid program" to receive payment for services he did not perform. The indictment reflects that each count involved a different patient and was committed on a different day, over a span of about five years. A factual basis for the plea was presented to the court at the time the plea was entered, and reflected that the "crime[s] involv[ed] deceit and the theft of public funds, " Malloy v. State, 329 Ga.App. 38, 40 (1) (763 S.E.2d 501) (2014) (physical precedent only), on six separate occasions, with regard to the accounts of six different members of the public, and on a continual basis.

         The "preponderance of the evidence" standard which applied to the lower ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.