Appellate panel weighs whether ambiguous trial order blocks expungement after judicial diversion

An appellate court panel on Wednesday heard arguments over whether Brooke Henson is entitled to have her criminal record expunged after completing a period of community-corrections supervision that the parties say was intended to be judicial diversion.

Kylene Ross, an attorney who said she practices in Gallatin and is a member of the Sumner County Bar, told the panel that Henson completed roughly four years of community-corrections supervision, paid fines and costs, and sought expungement by letter after her supervision expired. Ross said the district attorney then requested a hearing, and at that hearing Henson — unrepresented — was questioned about earlier probation-violation matters instead of receiving the expungement order she expected.

The central question, Ross told the panel, is whether a 2020 trial-court order effectively returned Henson to judicial diversion (which would make expungement ministerial once she completed the diversionary period) or instead revoked diversion and imposed a sentence, which would bar expungement under the state's statutory scheme.

The dispute turns on a single, ambiguously worded trial-court order. Ross recounted the case history: Henson entered a conditional guilty plea in September 2019 to an attempted drug offense and was placed on community corrections with judicial-diversion eligibility; she had two early technical violations, was jailed for roughly 120 days, received a medical furlough and completed a 60-day treatment stay at the Elon Center in January 2020, and then returned to supervision. On May 12, 2020, Ross said, the parties reached an agreement reflected in the record that Henson would return to community corrections with judicial-diversion eligibility and certain jail credits; the trial court “adopted the judicial diversion,” she said.

Ross said that, after the supervision term expired in September 2023 and an expiration order issued, Henson mailed a pro se request for expungement. The district attorney’s office requested a hearing, Ross said, and at the ensuing expunction proceeding the trial court denied expungement. Ross argued the denial was improper because Henson had no final conviction and had complied with the diversion terms.

Ben Ball, arguing for the state, urged the panel to focus on the language of the 2020 order. “This is not the case that I would have selected to be my first argument of 2025,” Ball told the court, adding that the order “is not a model of clarity.” He described an order that used the word “revocation,” referenced a sentence of “time served,” and at the same time referred to retaining eligibility for future expunction — language Ball said could be read as a partial revocation that left the case in an ambiguous posture. Ball used the phrase “zombie diversion” to describe the result of that ambiguity.

Panel questions probed both procedural and substantive limits. One judge asked Ross how, as a matter of law, the court could deny expunction if the diversionary period had expired and there was no conviction. Ball and the judges discussed whether the appropriate remedy would be to remand for clarification in the trial court, to dismiss the appeal as untimely or procedurally flawed, or to decide on the record whether the order should be treated as continuing diversionary eligibility and thus requiring expungement.

Both sides told the panel they saw practical injustice in the order’s effects. Ross said the state had agreed at earlier proceedings that Henson would retain diversion eligibility and that Henson had completed all obligations. Ball said the record reflected an order that invoked revocation language and imposed a sentence of time served, which, in his view, precluded expungement absent a clearer record or a direct appeal from that revocation.

Attorneys and the judges discussed possible outcomes the panel might take. One judge suggested the panel could remand to the trial court with instructions to dismiss and expunge if the panel concluded the record supported that remedy; other comments flagged dismissing the appeal as untimely if the court could not reach the core revocation question. Both sides acknowledged gaps and ambiguities in the record and expressed concern about the broader consequences for plea agreements and diversion practice if the question were resolved incorrectly on the appellate record.

The panel did not issue a decision at argument. The court recessed for a short break after oral argument concluded; no ruling was announced from the bench at the proceeding.

The case raises a procedural issue common to diversion matters: whether an order that simultaneously uses revocation language and refers to retained eligibility for expunction creates an appealable revocation, a continuing diversion, or an ambiguous posture requiring remand for clarification. The panel’s eventual opinion will determine whether Henson’s record can be expunged without further proceedings in the trial court or whether further factfinding is required.