Charles Edward Mack v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CA-01060-COA

CHARLES EDWARD MACK APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/11/2021
TRIAL JUDGE: HON. GERALD W. CHATHAM SR.
COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CIRCUIT
COURT, SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: TOMMY WAYNE DEFER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALLISON ELIZABETH HORNE
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 02/07/2023
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., SMITH AND EMFINGER, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. In August 2000, Charles Edward Mack pleaded guilty to furnishing contraband (forty

dollars) to an inmate in violation of Mississippi Code Annotated section 47-5-193 (Supp.

1999). Mack was a police officer at the time. Twenty years later, Mack sought to expunge

his conviction. The Tallahatchie County Circuit Court denied his petition, finding that

Mack’s crime was not eligible for expungement under Mississippi Code Annotated section

99-19-71(5) (Rev. 2020), which provides that “[n]o public official is eligible for expunction

under this section for any conviction related to his official duties.” Mack appealed, asserting

that his crime was not “related to his official duties” as a police officer. Finding no error in

the trial court’s order denying expungement, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. Mack was a police officer in September 1999, employed full-time by the Oakland,

Mississippi Police Department and part-time by the Tutwiler, Mississippi Police Department.

Sixteen-year-old Kendrick Scott was incarcerated at the Sumner, Mississippi jail at that time.

Mack, in uniform, went to the back of the Sumner jail where Scott and other trusties were

housed. Mack offered Scott forty dollars for “some back door” (a sexual favor) from Scott.

¶3. In March 2000, a Tallahatchie County grand jury indicted Mack for furnishing

contraband (forty dollars) to “an offender confined in this state, in direct violation of

[s]ection 47-5-193” (Count I) and attempted unnatural intercourse (Count II). Mack pleaded

guilty to Count I. Count II was remanded to the file. Following Mack’s plea hearing on

August 7, 2000, the trial court sentenced Mack to five years in the custody of the Mississippi

Department of Corrections (MDOC) but suspended execution of the sentence and placed

Mack on three years of supervised probation.

¶4. About three weeks after he was sentenced, Mack (then a felon) violated the terms of

his probation by possessing a firearm. The trial court revoked one year of Mack’s suspended

sentence and ordered him to serve one year in the custody of the MDOC.

¶5. In January 2004, Mack was convicted of impersonating a police officer.

¶6. About seven years later, Mack applied for a certificate of rehabilitation, asserting that

he was entitled to such relief because he “ha[d] previously worked in the field of law

enforcement, and he [was] desirous of obtaining a Certificate of Rehabilitation so that he

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[could] possess, use and carry, a firearm, for the purpose of obtaining employment in the

field of private security.” The trial court held its ruling in abeyance pending a resolution of

the outcome of another criminal charge against Mack (extortion).1 After a hearing, the trial

court denied Mack’s application, finding that he had not proved he had led a productive and

law-abiding life, citing Mack’s criminal history following his August 2000 conviction.

¶7. In January 2020, Mack filed an amended2 petition to expunge his 2000 conviction for

furnishing contraband to an inmate—the petition that is the subject of this appeal. The trial

court conducted a hearing on Mack’s petition on December 4, 2020.

¶8. Michael Bradley, a retired patrol captain for the Senatobia, Mississippi Police

Department, testified in Mack’s behalf. He testified that Mack deserved a second chance so

that he could pursue his dream to again become a police officer and serve his community.

¶9. During cross-examination, Bradley admitted he did not know the circumstances

surrounding Mack’s 2000 conviction. The State offered into evidence Mack’s March 2000

indictment that set forth both counts against him. Mack objected to the indictment being

admitted into evidence because Count II for attempted unnatural intercourse had been

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A Panola County grand jury indicted Mack for extortion based upon events
allegedly occurring in December 2005. Mack was tried for that charge, which resulted in
a mistrial. He was not retried, and the charge was later remanded to the file. Mack
successfully had the charge expunged pursuant to Mississippi Code Annotated section
99-15-26(5) (Rev. 2020), which provides that “the court shall expunge the record of any
case in which an arrest was made, the person arrested was released and the case was
dismissed or the charges were dropped, there was no disposition of such case, or the person
was found not guilty at trial.”
2
The original petition for expungement is not in the record.

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remanded to the file. The State argued that the circumstances set forth in Count II describing

why Mack had furnished Scott with forty dollars were relevant because Mack was a police

officer at the time and, according to the State, was “acting within the color of duty.” The

State argued that under these circumstances, Mack was not eligible for the expungement he

sought as a matter of law pursuant to section 99-19-71(5). The trial court overruled Mack’s

objection and admitted Mack’s March 2000 indictment into evidence.

¶10. Bradley also admitted during cross-examination that he did not know Mack had been

convicted of impersonating a police officer in January 2004. But Bradley testified that this

information did not change his mind that Mack should be given a second chance.

¶11. A letter from Mack’s probation officer Shirley Bradley was also admitted into

evidence. In that letter, she said that Mack was “always willing to assist law enforcement,

and she believes that he’s deserving of a second chance.”

¶12. Kendrick Scott testified for the State as its sole witness. He testified that Mack

offered him forty dollars for “some back door” when he [Scott] was incarcerated in the

Sumner, Mississippi jail in September 1999. Scott had just turned sixteen at the time. He

clarified that “back door” was a “sexual favor.” Scott testified that Mack was in his police

uniform at the time he offered him the forty dollars. Scott was a trusty at the jail, and he said

that the event happened at the Sumner jail “in the back” where the trusties were kept.

¶13. The trial court then heard the parties’ arguments. Mack asserted that section

99-19-71(5) “very clearly” only relates to convictions “related to [Mack’s] official duties.”

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According to Mack, section 99-19-71(5) did not apply in his case because seeking sexual

favors is not related to his official duties. Mack also argued that the crime occurred in a

different jurisdiction from where he was employed. Specifically, Mack asserted that he was

employed full-time by the Oakland Police Department, which is located in Yalobusha

County.3 The crime occurred at the Sumner jail in Tallahatchie County.

¶14. The State argued the testimony established that Mack entered the Sumner jail in

uniform, went to an area not readily available to the public (the back where the trusties were

housed), and offered a sixteen-year-old incarcerated offender forty dollars for a sexual favor.

Under these circumstances, the State asserted, Mack was “acting under color of his authority”

as a police officer, and therefore expungement was prohibited under section 99-19-71(5).

¶15. The trial court granted Mack’s petition, finding that he had satisfied the requirements

for expungement under section 99-19-71(2)(a).

¶16. The State filed a motion to reconsider, asserting that Mack’s crime was not eligible

for expungement under section 99-19-71(5) for the reasons presented at the hearing on

Mack’s expungement petition. The State pointed out that the trial court’s order did not

address the clear prohibition set forth in section 99-19-71(5).

¶17. The trial court entered an order staying execution of its order granting expungement

and ordered Mack to respond to the State’s motion to reconsider. In his response, Mack

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At Mack’s expungement hearing, the State also presented evidence that Mack was
a part-time police officer for the Tutwiler Police Department. Tutwiler is located in
Tallahatchie County.

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asserted that the State was not entitled to relief because (1) the trial court had heard the

parties’ arguments (including the State’s assertions regarding section 99-19-71(5)) and

granted the expungement; and (2) the State made no offer of proof that Mack was acting as

a public official or in the course of his public employment at Mack’s plea hearing on the

underlying crime.

¶18. The trial court granted the State’s motion to reconsider and vacated its prior order of

expungement. In its August 5, 2021 order, the trial court found:

Upon further review and consideration of the State’s Motion to Reconsider and
Mack’s response thereto, this Court finds the State’s motion is well-taken and
that Petitioner Mack is ineligible for an expungement of his conviction in this
cause pursuant to [section] 99-19-71(5). As such, this Court’s March 5, 2021
order granting Mack an expungement should be vacated. For those same
reasons, this Court finds that the relief requested in Mack’s Amended Petition
for Expungement of Criminal Record should be denied.

¶19. Mack appealed.

STANDARD OF REVIEW

¶20. Because “[e]xpungement is statutory in nature,” this Court “employ[s] a de novo

standard of review.” Watson v. State, 329 So. 3d 1215, 1217 (¶4) (Miss. Ct. App. 2021)

(citing Robertson v. State, 158 So. 3d 280, 281 (¶3) (Miss. 2015)). In undergoing our de

novo review, we also bear in mind that “expungement is an act of legislative grace[,] . . . and

no common law right to expungement of criminal records exists.” Id. at (¶5) (quoting Polk

v. State, 150 So. 3d 967, 968 (¶6) (Miss. 2014)).

DISCUSSION

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¶21. Mack asserts that pursuant to section 99-19-71(2), he was entitled to expungement of

his felony conviction for furnishing contraband (forty dollars) to Scott. Section

99-19-71(2)(a) generally allows a person convicted of a felony to “petition the court . . . for

an order to expunge one . . . conviction from all public records five . . . years after the

successful completion of all terms and conditions of the sentence for the conviction upon a

hearing as determined in the discretion of the court.” The court “may grant the petition if the

court determines, on the record or in writing, that the applicant is rehabilitated from the

offense which is the subject of the petition.” Miss. Code Ann. § 99-19-71(2)(b) (emphasis

added). Thus expunction, even if the statutory requirements are met, is discretionary with

the court.

¶22. The Legislature, however, also chose to prohibit expungements for certain

convictions. Section 99-19-71(5), for example, provides that “[n]o public official is eligible

for expunction under this section for any conviction related to his official duties.” We find

that pursuant to this statutory prohibition, Mack was not eligible for expunction of the crime

at issue here. We therefore affirm the trial court’s order denying Mack’s amended petition

for expungement.

¶23. The testimonies and evidence presented at the hearing on Mack’s expungement

petition show that Mack was employed as a full-time police officer in Oakland, Mississippi,

and a part-time police officer in Tutwiler, Mississippi at the time of his crime. He was

dressed in uniform when he entered the Sumner jail and went into the area where trusties

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were housed—an area of the jail not accessible to the public. Mack then furnished

contraband (forty dollars) to an incarcerated offender (Scott) for “some back door” (a sexual

favor).

¶24. Mack admits that he was a police officer at the time of the crime, and he does not

dispute that a police officer is a “public official.” Mack asserts, however, that “[t]he money

and the request for a personal sexual favor from . . . Scott was not in any way related to [his]

duties and responsibilities as a . . . police officer.” Thus, according to Scott, his crime was

not “related to his official duties” under section 99-19-71(5), and he was therefore entitled

to expungement.

¶25. We disagree. Although soliciting sexual favors from inmates is certainly not a police

officer’s “official dut[y],” Mack’s opportunity to commit his crime—furnishing contraband

to an inmate—was because of his position as a police officer. And as far as sixteen-year-old

Scott was concerned, Mack’s police uniform “ha[d] the same significance . . . whether [Mack

was] technically on or off duty.” See Bates v. State, 172 So. 3d 805, 810 (¶16) (Miss. Ct.

App. 2014) (quoting State v. DeSanto, 410 A.2d 704, 705 (N.J. Super. Ct. App. Div. 1980)).

As Scott testified, “He [(Mack)] ain’t deserving of no second chance. It’s that simple, man.

That ain’t right. He was the police, man. Pulling folks over, man, him talking about sexual

favors and stuff like that. That dude don’t deserve to be no police officer no more.” The

crime occurred in the back of the jail where the trusties were housed and was an area closed

to the public. But Mack, a police officer, was permitted to enter that particular area and

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commit his crime. Under these circumstances, we find that Mack’s crime was “related to”

his official duties and, therefore, could not be expunged pursuant to section 99-19-71(5).

¶26. Mack also asserts that when he pleaded guilty to the subject crime, the State’s offer

of proof at his plea hearing lacked any allegation that Mack was acting as a public official

at the time of the offense. It was not until he sought expungement, Mack asserts, that the

State “suddenly allege[d]” that Mack’s crime related to his official duties. We find nothing

amiss in the State’s actions.

¶27. In particular, Mack pleaded guilty in 2000 to furnishing contraband to an inmate in

violation of section 47-5-193. At the time, section 47-5-193 prohibited “any officer or

employee of the department, of any county sheriff’s department, of any private correctional

facility in this state in which offenders are confined or . . . any other person to furnish, [or]

attempt to furnish . . . any offender confined in this state any . . . contraband item.” Miss.

Code Ann. § 47-5-193.4 (emphasis added). As such, whether Mack was a public official

when he furnished forty dollars to Scott is not an essential element of the crime to which he

pleaded guilty. Section 47-5-193 imposed liability on officers as well as “any other person”

for the prohibited conduct.

¶28. Whether Mack’s crime “related to his official duties” pursuant to section 99-19-71(5)

did not become relevant until Mack sought to expunge this crime. Thus, at the hearing on

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Section 47-5-191 defined “contraband” to include “coin or currency.” Miss. Code
Ann. § 47-5-191 (Supp. 1995).

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Mack’s expungement petition, the State appropriately presented Scott’s testimony and other

evidence on this issue. Accordingly, we find that Mack’s assertions that the State’s actions

somehow weigh in favor of expungement are without merit.

¶29. Lastly, Mack asserts that his crime was committed in a different jurisdiction from his

place of employment. We do not find that this is a relevant consideration in applying section

99-19-71(5) in this case. It is undisputed that Mack was a police officer dressed in uniform

when he committed his crime. Mack’s employment as an Oakland and Tutwiler police

officer afforded him access to a secure location in the Sumner jail. And although he was in

a different jurisdiction, his status as an officer in uniform carried with it “the same

significance to [Scott,]” even if he were off-duty. Bates, 172 So. 3d at 810 (¶16) (quoting

DeSanto, 410 A.2d at 705)). We therefore find Mack’s “jurisdictional” argument

unpersuasive.

¶30. For the reasons addressed above, we affirm the trial court’s order denying Mack’s

amended petition for expungement.

¶31. AFFIRMED.

BARNES, C.J., WILSON, P.J., GREENLEE, WESTBROOKS, McDONALD,
LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.

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