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In re Application of Finley

Court of Appeals of Nevada

December 26, 2019


          Appeal from a district court order denying a petition to seal criminal records. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.

          The Wright Law Group and John Henry Wright and Christopher B. Phillips, Las Vegas, for Appellant.

          Steven B. Wolfson, District Attorney, and John T. Niman, Deputy District Attorney, Clark County, for Respondent State of Nevada. Nicholas Vaskov, City Attorney, and Marc M. Schifalacqua, Senior Assistant City Attorney, Henderson, for Respondent City of Henderson.

          BEFORE GIBBONS, C.J., TAO and BULLA, JJ.


          TAO, J.

         As an act of grace, the Nevada Legislature has decided that persons convicted of certain types of crimes (both misdemeanors and many felonies) may, in certain circumstances and if they have not committed any new crimes for a certain length of time, ask the judiciary to have their convictions "sealed," which means that the convictions are "deemed never to have occurred," thereby restoring a panoply of civil rights that convicted felons otherwise do not enjoy. See NRS 179.285. Not all convictions are eligible to be sealed-for example, sex offenses and crimes against children are never eligible to be sealed no matter how old the convictions. See NRS 179.245(6). But for many other offenses, if the person has proven able to successfully turn their life around and live crime-free long enough, the Legislature has enacted a series of statutes designed to give courts the power to seal convictions for those deemed "rehabilitated" and who deserve "second chances." See NRS 179.2405 (declaring the public policy behind sealing statutes).

         Iterations of these criminal record sealing statutes have been around a long time, but in recent years the Legislature has changed the procedures that must be followed to obtain such sealing. Previously, petitioners had to file a separate petition in each court in which they were convicted of any crime, and that court could seal only the convictions that it issued. If the person was convicted of different crimes in different levels of the judiciary (e.g., municipal court, justice court, or district court), then they had to file separate petitions in each court to address the convictions issued by that court. But recently the Legislature decided to permit a convicted person to file a single consolidated petition in a single district court asking to seal convictions involving multiple cases from, different courts.

         The question raised by this appeal is this: on the one hand, criminal convictions are eligible to be sealed only if the person was not convicted of any subsequent crimes for a certain prescribed period of time thereafter (ranging from one year to ten years after the expiration of the prior sentence), see NRS 179.245 (1), (5); and on the other hand, once sealed, a conviction is "deemed never to have occurred," see NRS 179.285. Normally, an earlier conviction followed very quickly by another conviction renders the first conviction ineligible for sealing. But suppose enough time elapses so that the latest conviction is eligible to be sealed. Once that later conviction is sealed and "deemed never to have occurred," does that then make an earlier conviction eligible to also be sealed (since it is no longer chronologically followed by another later conviction), even though it would not have been eligible prior to sealing the later conviction? And can entire chains of otherwise ineligible successive convictions now all be sealed by unwinding the convictions one after another in reverse chronological order all the way back in time to the person's first conviction?

         The plain words of the statutes provide our answer: as enacted, the statutes vest district courts with considerable discretion in handling petitions involving multiple convictions. If they wish, district courts may evaluate successive convictions in reverse chronological order, thereby potentially sealing earlier convictions that would not have been eligible had the court instead considered the convictions in forward chronological order (i.e., by deeming the later convictions to have never occurred). On the other hand, the statutes do not require that district courts handle a train of multiple successive convictions this way. Quite to the contrary, NRS 179.295 "does not prohibit" courts from considering previously sealed convictions when determining whether to grant a petition to seal other criminal records. In other words, even if a later conviction has been sealed, the district court may still consider it in deciding whether earlier convictions should be sealed or not, and may rely upon the later sealed conviction to conclude that the petitioner was not truly rehabilitated and refuse to seal the earlier conviction.


         Edward Tarrobago Finley filed a consolidated petition in district court to seal records associated with multiple different criminal convictions in multiple different courts throughout Clark County. The State of Nevada (through the Clark County District Attorney) and the City of Henderson (the City) opposed Finley's petition on various grounds, only one of which matters to this appeal. The City argued that one of Finley's convictions, a 2004 non-felony battery domestic violence conviction, was ineligible to be sealed because Finley was convicted of new felony offenses within the seven-year time period specified in NRS 179.245(1)(e) for him to remain crime-free in order to have the 2004 non-felony conviction sealed.

         Following a brief hearing, the district court issued a written order denying Finley's petition. The district court concluded that, because Finley was convicted of new crimes within the seven-year waiting period required to invoke the district court's discretion to seal a non-felony battery domestic violence conviction, the 2004 conviction was ineligible for sealing. The district court further concluded that Finley had not satisfied the requisite waiting periods for the new offenses and therefore also failed to invoke the court's discretion to seal those convictions. Finley now appeals.


         On appeal, Finley primarily argues that the district court's interpretation of the governing statutes[2] produced an absurd result and rendered a particular statute (NRS 179.2595) meaningless. Specifically, he argues that the district court should have considered whether he was eligible to have his records sealed by considering each of his convictions individually in reverse chronological order (i.e., it should have started with his most recent conviction, determined whether to seal that record, and if so, proceeded to evaluate the next most recent conviction). Finley argues that this is so because under NRS 179.285, once a record is sealed, all proceedings recounted in that record are deemed never to have occurred, meaning that a district court working in reverse chronological order could not consider those proceedings (if sealed) when determining whether a petitioner is eligible to have an earlier record sealed. Finley argues that he could have achieved this result by incrementally filing multiple petitions in each separate court in which he was ...

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