IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00912-COA CHELSEY FERGUSON APPELLANT

v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY APPELLEE

DATE OF JUDGMENT: 03/03/2017 TRIAL JUDGE: HON. ISADORE W . PATRICK JR. COURT FROM W HICH APPEALED: W A RREN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PAUL E. ROGERS ATTORNEYS FOR APPELLEE: ANTHONY LOUIS SCHMIDT JR. LORA ELIZABETH HUNTER NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: REVERSED AND RENDERED - 09/25/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ. GREENLEE, J., FOR THE COURT: ¶1. Although the W arren County C i r c u i t C o u r t h a d p r e v i o u s l y g r a

n t e d C h e l s e y

F e rguson’s petition to expunge h e r m isdem eanor sex of f ense, i t denied her subsequent petition f or relief f rom the duty to register as a sex of f e nder. Ferguson a p p e a l s a n d argues that (1) the Mississippi Departm e nt of Public Saf e ty had no authority to c hallenge her petition f or relief ; and (2) the circuit court’s decision conf licts with the Mississippi Suprem e Court’s opinion in Stallworth v. State , 1 6 0 So. 3d 1161, 1 164 ( ¶13) (Miss. 2015), which provides that the
expungem ent of a registrable of f ense returns o ne t o her pre-conviction status. W e a gree with the latter assertion. Because Ferguson did not have to r egister a s a sex of f e n der bef ore herconviction, she does not have t o register af ter t he e x pungem ent. Id

. Accordingly , we reverse the circuit court’s judgm ent and render a judgm ent in Ferguson’s f avor. FACTS AND PROCEDURAL HISTORY ¶2. I n May 2011, Ferguson pled guilty to the m isdem eanor o f f ense of dis s e mi n a t i n g sexually o riented m a terial to a m inor. T he circuit c o urt gave Ferguson the m axim um possible sentence: one y e ar in the county jail. Miss. Code Ann. § 97-5-27(1) (Rev. 2014). But the circuit court suspended all of Ferguson’s sente n c e a n d p l a ced her on probation f or a y ear. As a result of h e r conviction, Ferguson had to register as a sex of f e nder. M iss. C o d e A n n . § 45-33-23(h)(vii) (Rev. 2015). ¶3. Approxim ately f

ive y ears later, she f

iled a successf

ul expungem ent petition. Af ter the

e x p u ngem ent, the Mississippi D epartm ent of Public Saf ety Crim inal Inf

orm ation Cen t e r ( M D P S ) sent Ferguson’s attorney an “Expunction R esolution Notice,” stating t hat MDPS could not process the expun g e ment order because Ferguson’s conviction c ould not be expunged. T hus, MDPS ref used Ferguson’s request f or r e l i ef f rom her prior obligation to register as a sex of

f ender. ¶4. Ferguson responded by f iling the com

plaint that has led t o t h i s a p p e al. She nam ed
MDPS as the sole d ef

endant. Af

t er a hearing, the circuit court e ntered an order stating that Ferguson “f

ail[ ed] t o state an actionable claim upon which relief can be g r a n t e d

. . . .” In other w ords, t h e c ircuit court held that Ferguson’s expunge me n t d i d n ot relieve her of the oblig a t i on to register as a s ex o f f ender. Following her unsuccessf ul post-trial m otion,

2Ferguson appeals. S he argues (1) MDPS had no authority to challenge h er r equest f or relief f rom the obligation to regist e r a s a s e x of f ender; and ( 2) the circuit court erred when it ef f ectively hel d that she still had to r e gister despite the expungem ent of h er m isdem eanor conviction.
ANALYSIS
I. MDPS could participate in Ferguson’s case. ¶5. Fram ing the issue as though it pertains t o standing, Ferguson essentially argues that
MDPS had no authority to contest her com plaint f o r relief f rom t he duty t o register as a sex of f ender. Her position is based on Mississippi Code Annotated section 45-33-47(3) (Rev. 2015), which provides: The district a ttorney i n the circuit in which the petition i s f iled m ust be given notice of the petition at least three ( 3) weeks bef ore the hearing on the m a tter. The district attorney m a y present evidence in opposition to the requested relief or m ay otherwise dem o nstrate the reasons why the petition should be denied.
T h u s , F e r g u s o n r e a s o n s t

h a t district attorney s

—

n ot M DPS—m

ust r e p r e s e n t t

h e g o v e r n m e n t ’ s interests when som eone petitions f or relief f r om the duty to register as a sex of

f ender. ¶6. According to counsel f o r Ferguson, MDPS only p articipated in t he case at the circuit judge’s r equest. I n her opening brief , Ferguson say s that the circuit j udge “directed” that her attorney send MDPS notice of her com plaint. During the hearing on Ferguson’s c om plaint, the circuit judge said that he h a d personally asked MDPS to s e n d a representative to the hearing a nd “argue the position of that entity against the rem oving of M s. Ferguson f rom the register.” But it is understandable that the circuit judge would expect Ferguson to provide
3MDPS with notice of her claim

. MDPS was the only nam ed def endant in the com

plaint that Ferguson f

iled in r esponse to MDPS’s p osition that she had to continue registering as a sex of f ender despite the expungem ent of her conviction. ¶7. The Suprem e Court has im plicitly upheld MDPS’s intervention and participation in sim ilar litigation. See W itten v. Stat e e

x r e l

. Miss. Dep’t o

f Pub. Safety a nd Criminal Information Ctr., S

ex Offenders Registry , 145 So. 3d 625, 627-30 (¶¶3-12) (Miss. 2014). In that case, Carey Jason W itten argu e d t h a t b e cause his Calif ornia conviction f

or “oral copulation and rape of a person unconscious of the nature of the act” h ad been dism issed af ter h e successf

ully com pleted his probation, he should not have to register as a sex of f ender in M ississippi. Id

. at 625-26 (¶¶1-2) (internal quotation m a rk om itted). I nitially , the circuit

c o u rt agreed. Id

. at 627 (¶2). But MDPS l ater intervened and f i led a successf

ul post-tria l

m otion to set aside the circuit court’s judgm ent. Id

. at (¶3). On appeal, the Suprem e Court upheld t h e c ircuit court’s decision t hat W itten w as not entitled to relief f rom his duty to register as a sex of

f ender. Id . at 630 (¶12). ¶8. W e are not persuaded b y Ferguson’s argum ent t hat the only nam ed def endant in her

com plaint had n o interest in the case. I n a very real s ense, Ferguson’s com plaint was a

r e q u e s t f or d eclaratory relief i ntended to com pel MDPS that she no longer had to register

. See M.R.C.P. 57(1). T o the e xtent that the participation of the only nam ed def endant could

ever be c alled a perm i ssive joinder issue, see M.R.C.P. 2 0(a), the circuit court did n ot abuse

4its discretion when i t allowed MDPS to participate in F erguson’s case. 1 See City of Jackson

v. Allen , 242 So. 3d 8, 13-14 (¶19) (Miss. 2018) ( “Our standard of review f or joinder issues is abuse of

discretion.”). This issue is m eritless.
II. Ferguson no longer has to register as a sex offender. ¶9. Citing the Suprem e Court’s decision in Stallworth , Ferguson argues that she should be r elieved of the duty to regi s t e r as a sex of f ender because her conviction has been expunged. T he petitioner in Stallworth had been conv i c t e d o f a m isdem eanor sex of f ense i n M a r y l a n d , and he received a suspended sentence and probation. Id

. a t 1162 (¶2). A Mary land court late r granted his request t o expunge that c o nviction. I d

. a t (¶3). Having

m oved to Mississippi, the petitioner unsuccessf ully s ought r elief f

rom the duty to register as

a sex of f ender. Id

. The Suprem e Court held that the expungem ent of an of f ense restored the petitioner to his pre-conviction status, and because he did not have a duty to register bef ore the conviction, “ the expungem ent relieved [ the pe t i t i o n e r ] of a n y f urther duty to register.” Id . at 1164 (¶13). ¶10. MDPS prim arily argues that Ferguso n ’ s c o n v i c t ion was not expungable. But the legali t y o f F e r g u son’s expungem ent is not bef ore this Court. M DPS was aware of
Fer g u s o n ’ s e x pungem ent b e f ore t he deadline to appeal lapsed. 2 See M.R.A.P. 4(a). Even

1 T h is o p in io n sh o u ld n o t b e in terp reted to m ean t h at M D P S m u st alw a y s b e m ad e a p arty to p r o ceed in g s in v o lv in g a p etitio n f o r reg istratio n relief

. 2 T h e ex p u n g em en t o rd e r w as en tered o n Ju n e 2 7 , 2 0 1 6 . O n Ju ly 1 5 , 2 0 1 6 , M D P S sen t t h e “E x p u n c tio n R eso lu tio n N o tice” t o F erg u so n ’s atto rn ey an d st a t e d th at th e ex p u n g em en t co u ld n o t b e p ro c essed b ecau s e h er co n v ictio n w as n o t ex p u n g ab le. 5so, MDPS did not intervene and appeal Ferguson’s expungem ent. Likewise, MDPS did not

attem pt t o challenge Ferguson ’ s e x p ungem ent through a post-trial m otion in that case, although it had done exactly that two y ears earlier i n W itten

. MDPS cites no authority that would allow it to collaterally attack Ferguson’s expungem ent in the context of her com plaint f or relief f rom the d uty to register as a sex of

f ender. See M .R.A.P. 2 8(a)(7). As this Court recently n oted: Collateral estoppel precludes p a r t i e s f r om relitigating issues authoritatively d e c i d e d on their m erits in prior litigation to which they were parties or i n privity

. But it m

ust never b e seen as any

thing other than an unusual e xception to t he general r

ule that all f

act questions s hould be litigated f ully in each case. The doctrine p rec l u d e s r elitigating a specif i c i ssue[ ] [ that] was: ( 1) actually litigated in the f

orm er action; (2) determ ined by the f o r mer a c tion; and (3) essential to the judgm ent in the f orm er action. McCarty v. W

ood , 249 So. 3 d 425, 434 (¶30) (Miss. Ct. App. 2018) (em p hasis, citations, and internal quotation m arks om i tted). W i thout question, Ferguson’s e xpungem ent w a s decided incident t o her expungem ent pe t i tion. A nd a l though MDPS was n ot a party to the
expungem ent action, “[ t]here is privity between of f icer s o f t h e sam e g overnm ent

. . . .” Sunshine Anthracite Coal Co. v. A dkins , 310 U.S. 3 81, 402 (1940). “The public interest in stability and r e p ose is s o param ount that collateral estoppel protects com petent judgm ents [ that] are s ubsequently thought t o be erroneous.” State ex rel. Moore v. Molpus , 578 So. 2d 624, 642 (Miss. 1 991). “W h ere the elem ents of estoppel h ave been satisf ied, the court’s inquiry is not whether the court’s order was erroneous, but only that it was the f inal j udgm ent of the case.” Id

. (internal quotation m ark om i tted). “Our law rebuf f s subsequent attem

pts

6to im

peach or attack the i nitial judgm ent even where

. . . the substantive law was incorrectly decided and applied

. . . .” Id . (em phasis added). As m entioned above, MDPS h ad notice of Ferguson’s expungem ent in tim e to challenge it in the context of that ca s e , but MDPS neglected to do s o . The d o ctrine of collateral e s t o p p e l precludes MDPS f rom challenging the expungem ent when Ferguson later petitioned f or relief f rom the duty t o register as a sex of f ender. As f

or M DPS’s insistence that Stallworth should be overruled, this Court has no authority to do so. 3 Competition Marine of MS I nc. v. W hitney Bank , 220 So. 3d 1019, 1024 (¶15) ( Miss. Ct. App. 2017) (“[ T ]his Court is n ot at l iberty to o verturn M ississippi Suprem e Court precedent . . . .”). ¶11. Our Suprem e C ourt has unequivocally held that “Mississippi law on the ef f ect of an
expungem ent

. . . relieves [ one] f rom the duty to regist e r t hat h e had bef ore the
expungem ent.” Stallworth , 160 So. 3d at 1163 (¶9). “ [ B]ecause [ Ferguson] had no duty [ to] register as a sex of

f ender bef ore [ s]he was convicted, the expungem e nt relieved [ her] of any f urther duty to register.” Id

. at 1164 (¶13). It necessarily f ollows that the circuit court erred when it h eld that Ferguson’s expungem e nt did not relieve her o f the obligation to register as a sex of f ender.
CONCLUSION ¶12. The circuit court e rred when it denied F erguson’s request f or relief f rom the duty to

3 In all f airn ess, th is ap p eal w as u n assig n ed w h en M D P S f iled its resp o n siv e b rief an d arg u ed th at S ta llw o rth sh o u l d b e o v erru led

. In o t h e r w o rd s, M D P S d id n o t attem p t to arg u e th at th is C o u rt h as th e au th o rity to o v erru le th e S u p rem e C o u rt’s d ecisio n .

7register as a sex o f f ender. Ferguson’s m isdem e anor conviction was expunged, and there was

no appeal of that d ecision. Theref ore, the propriety of F erguson’s expungem e nt i s not bef ore

us. The Suprem e Court has held that an expungem e nt returns an of f ender t o h e r p reconviction status. Id

. Ferguson did not have to r egister as a sex of f e n d e r b e f ore her

m isdem eanor conviction, so she does not have to r egister n ow t hat h er conviction has been
exp u n g e d

. See id

. Consequently , we reverse the circuit court’s judgm ent and render a judgm ent relieving Ferguson of the obligation to continue registering as a sex of f ender. ¶13. REVERSED AND RENDERED. LEE, C .J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, WEST B R O O K S A ND T INDELL, JJ., CONCUR. CARLTON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY TINDELL, J. CARLTON, J., SPECIALLY CONCURRING: ¶14. In adherence to Mis s i s s i p p i S u prem e Court precedent, I concur in the result of the

m ajority

. However, I urge the suprem e court to overrule Stallworth v. S tate , 160 So. 3d 1161 (Miss. 2015), a nd disting u i s h it f rom the instant case to af f irm the circuit c ourt’s denial of Ferguson’s petition f

or r e lief f rom the duty to register as a sex o f f ender. In Stallworth , the
suprem e court dealt with a n out-of -state co n v i c t ion that w as expunged by t he state of Mary land. Id

. at 1162 (¶3). Expungem ent is statutory in nature. Hentz v. State , 152 So. 3d 1139, 1142-43 (¶¶9-11) ( Miss. 2 014). W e m ust theref ore look t o Mississippi statutory law
to determ ine whether expungem ent relieves Fe r g u s on of the duty to register as a sex of f ender. A review of Mississippi statutory law establishing registration r e q u i r e me nts

8ref

lects t hat expungem ent f

a ils t o relieve Ferguson of r egistration requirem ents. See Miss. Code Ann. § 45-33-23(a) (Rev. 2015). ¶15. In this case, F erguso n w a s c o n v i c t e d i n M i s s i ssippi f or crim i nal violations of
M i s s issippi statutory law f or t he of f ense of dissem inating sexually oriented m aterial to a

m i n o r . Mississippi s tatutory law establishes that Ferguson is r equired to register as a sex of f ender because of her guilty p l e a . M i s s . Code Ann. § 45-33-25(1)(a) (Rev. 2015). The statutory law in Mississippi requires registration f or a conviction, s ee section 4 5-33-25(1)(a), which is def

ined as “a determ ination or judgm ent of g uilt as a result of a trial or the entry of

a plea of guilty or nolo contendere regardless of w hether a djudication i s w i t h h e l d

. ” Miss. Code Ann. § 45-33-23(a). ¶16. The legislature set f orth the f ollowin g s p e c i f

i c p r o visions that m

ust be s atisf

ied in order f or the trial court to relieve a petitioner f rom the s ex of

f ender registration requirem ents:
In determ ining whether t o release a n of f ender f rom the o bligation to register, the court shall consider the nature of the registrable of f e nse c om m itted and the crim inal and relevant noncrim i nal behavior of the petitioner both bef ore and af ter conviction. The court m ay relieve the of f ender o f the duty to register onl y i f the petitioner shows, by clear and convincing evidence, that the registrant properly m aintained his registration a s required by l a w and t hat f uture r egistration of the petitioner will not serve the purposes of this chapter and the c ourt is o therw i s e satisf i ed that the petitioner is not a current or potential threat to public saf ety

. Miss. C ode Ann. § 4 5-33-47(3) (Rev. 2015). Section 4 5-33-47(3) f a ils to m ention
expungem ent as a m eans by which a petitioner m ay be relieved f rom t he duty of r egistering

as a s ex o f f ender. “Our statutes m ake clear that sex of f enses are not e ligible f

or expunction.”

9Stallworth , 160 So. 3d at 1168 (¶30) (Randolph, J., dissenting) (citing Miss. Code Ann. § 45-

33-55 (Rev. 2011)). “Expunction is not a cond i t i o n listed by statute which would provide petitioner relief f

rom continuing registration as a s ex of f ender.” Id

. (citing M iss. C ode Ann. § 45-33-47 (Rev. 2011)). ¶17. Interpretation of a statute is a question of law and is reviewed d e novo. Natchez Hosp.
Co. LLC v
. Adams C

ty. Bd. of Supervisors , 238 So. 3 d 1 162, 1163 ( ¶4) (Miss. 2018). The goal of statutory c onstruction is to determ ine and im plem ent t he legislative i ntent. Miss. Dep’t of Transp. v. A llred , 928 So. 2d 152, 1 54 (¶12) (Miss. 2 006). As stated, section 45-33- 47(3) clearly s ets f

o rth f a ctual f indings that m

ust be m ade by the court that serve to protect the p ublic in order to grant r elief f r om s ex of

f e n der registration requirem ents. The legislature f ailed to list expungem ent as a prov i s i o n o f s ection 45-33-47(3); as a r esult, I urge the Mississippi Suprem e Court to overrule Stallworth and a f f irm the circuit court’s j udgm ent deny ing Ferguson’s petition f or relief f rom the duty to register as a sex of

f ender. TINDELL, J., JOINS THIS OPINION.

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