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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 17-CO-1056

                        ANTONIN WASHINGTON, APPELLANT,

                                        V.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                (CMD-13858-83)
                        (Hon. Steven Wellner, Trial Judge)
(Argued April 4, 2019                                      Decided April 25, 2019)
      Adrian Madsen for appellant.

      Elizabeth Aloi, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney, and Elizabeth Trosman, Nicholas P. Coleman, T. Anthony
Quinn, and Jillian D. Willis, Assistant United States Attorneys, were on the brief,
for appellee.

      Before GLICKMAN and THOMPSON, Associate Judges, and WASHINGTON,
Senior Judge.


      THOMPSON, Associate Judge:        Through legislation enacted in 2014, the

Council of the District of Columbia (the “Council”) “decriminalized the possession
                                          2

of . . . marijuana for personal use.” 1 In 2015, the Council enacted legislation

entitled “Record Sealing for Decriminalized and Legalized Offenses Act of 2014,”

codified as D.C. Code § 16-803.02 (2017).



      In 1983, appellant, Antonin Washington, was charged with two counts of

possession of marijuana and two counts of possession of phencyclidine (PCP). Mr.

Washington pled guilty to one count of possession of PCP; Superior Court records

indicate that the disposition of the marijuana counts and one of the PCP counts was

nolle prosequi. On May 4, 2017, relying on § 16-803.02, Mr. Washington filed a

motion to seal the publicly available records of his “arrests and related court

proceedings” in the 1983 matter (as well as records in matters from other years not

involved in this appeal). In an August 29, 2017, order, the Superior Court denied

the motion, stating that “[p]ossession of PCP is not a decriminalized or legalized

      1
            McRae v. United States, 148 A.3d 269, 274 (D.C. 2016). See D.C. Act
20-305, “Marijuana Possession Decriminalization Amendment Act of 2014”, 61
D.C. Reg. 3482 (Apr. 4, 2014); D.C. Code § 48-1201 (a)-(b) (2017) (providing that
“[n]otwithstanding any other District law, the possession or transfer without
remuneration of marijuana weighing one ounce or less shall constitute a civil
violation . . . . [and] shall not constitute a criminal offense or a delinquent act
. . . .”); D.C. Act 20-565, “Legalization of Possession of Minimal Amounts of
Marijuana for Personal Use Initiative of 2014,” 62 D.C. Reg. 880 (Jan. 23, 2015);
D.C. Code § 48-904.01(a)(1) (2017) (providing inter alia that “it shall be lawful . . .
for any person 21 years of age or older to . . . [p]ossess, use, purchase, or transport
marijuana weighing 2 ounces or less; . . . [and to] [t]ransfer to another person 21
years of age or older, without remuneration, marijuana weighing one ounce or
less”).
                                         3

offense” and therefore that Mr. Washington could not “avail himself of relief under

. . . § 16-803.02 . . . .” The court did not address whether to grant Mr. Washington

a part of the relief he sought by sealing the records of his accompanying

marijuana-possession charges.



      This appeal followed. We affirm the Superior Court’s ruling insofar as it

denied sealing of the records of Mr. Washington’s PCP arrest, charges, and

conviction. However, we remand for the Superior Court to consider whether to

seal the records relating to Mr. Washington’s accompanying arrest and charges for

marijuana possession.



                                         I.



      Section 16-803.02 (2017) provides in pertinent part as follows:



            (a) A person arrested for, charged with, or convicted of a
            criminal offense pursuant to the District of Columbia
            Official Code or the District of Columbia Municipal
            Regulations that was decriminalized or legalized after the
            date of the arrest, charge, or conviction may file a motion
            to seal the record of the arrest, charge, conviction, and
            related Superior Court proceedings at any time.

                   (1)
                      4

       (A) The Superior Court shall grant a motion
to seal if:

             (i) The arrest was not made in
      connection with or did not result in any
      other District of Columbia Official Code or
      District of Columbia Municipal Regulations
      charges or convictions against the person;
      and

            (ii) The arrest was not made in
      connection with or did not result in any
      other federal charges or convictions in the
      United States District Court for the District
      of Columbia against the person.

      (B) In a motion filed under subparagraph
(A) of this section, the burden shall be on the
prosecutor to establish by a preponderance of the
evidence that the record is not eligible for sealing
pursuant to this section because the conduct was
not decriminalized or legalized.

(2)

       (A) In cases that do not meet the
requirements of paragraph (1) of this subsection,
the Superior Court may grant a motion to seal if it
is in the interest of justice to do so. In making this
determination, the Court shall weigh:

            (i) The interests of the movant in
      sealing the publicly available records of his
      or her arrest, charge, conviction, and related
      Superior Court proceedings;

             (ii) The community’s interest         in
      retaining access to those records;
                                          5

                                 (iii) The community’s interest in
                          furthering the movant’s rehabilitation and
                          enhancing the movant’s employability; and

                                (iv) Any      other    information      it
                          considers relevant.

D.C. Code § 16-803.02(a)(1)(A)-(B), (a)(2)(A)(i)-(iv).



      Mr. Washington does not dispute that the records of his 1983 case are

ineligible for sealing under § 16-803.02(a)(1) because the case involved an arrest

and charges for marijuana possession “in connection with” and “result[ing] in” an

arrest, charges, and conviction for possession of PCP, an offense which has not

been decriminalized or legalized. § 16-803.02(a)(1)(A)(i). He contends, however,

that the Superior Court had discretion (but erred in failing to recognize that it had

discretion) to seal all the records of the 1983 case, pursuant to § 16-803.02(a)(2).

He relies on the following language: “In cases that do not meet the requirements of

paragraph (1) of this subsection, the Superior Court may grant a motion to seal if it

is in the interest of justice to do so.” § 16-803.02(a)(2)(A). Mr. Washington

appears to read that language to mean that “[i]n cases that do not meet the

requirements of paragraph (1) of this subsection [in that the cases involve both

now-decriminalized or legalized conduct as well as offenses that have not been

decriminalized or legalized], the Superior Court may grant a motion to seal [the

record of the entire case] if it is in the interest of justice to do so.” He also reads
                                          6

the reference in § 16-803.02(a)(2) to “related Superior Court proceedings” (“A

person arrested for, charged with, or convicted of a criminal offense . . . that was

[afterwards] decriminalized or legalized . . . may file a motion to seal the record of

the arrest, charge, conviction, and related Superior Court proceedings at any

time,” (emphasis added)) to mean that sealing is available under § 16-803.02 with

respect to the records of any arrest, charge, or conviction for a still-criminal or

still-illegal offense that was related to the arrest, charge, or conviction for now-

decriminalized or legalized conduct.



      Because Mr. Washington’s argument presents an issue of statutory

construction, our review is de novo. 2



                                         II.



      Standing by itself, the language of §§ 16-803.02(a) and (a)(2) perhaps is

susceptible of the meanings Mr. Washington imputes to those provisions. But

“interpreting a statute or a regulation is a holistic endeavor,”3 and a provision in


      2
          Peterson v. United States, 997 A.2d 682, 683 (D.C. 2010).
      3
          W.H. v. D.W., 78 A.3d 327, 337 (D.C. 2013) (alteration and internal
quotation marks omitted).
                                            7

isolation “is often clarified by the remainder of the statutory scheme . . . because

only one of the permissible meanings produces a substantive effect that is

compatible with the rest of the law . . . .”4 Further, “[t]he literal words of a statute

. . . are not the sole index to legislative intent, but rather, are to be read in the light

of the statute taken as a whole, and are to be given a sensible construction . . . .” 5

Our task “is to search for an interpretation that makes sense of the statute and

related laws as a whole[,]” and we may “turn to legislative history to ensure that

our interpretation is consistent with legislative intent.”6 Further, “if divers statutes

relate to the same thing, they ought to be taken into consideration in construing any

one of them . . . .” 7



       The foregoing principles lead us to reject Mr. Washington’s interpretation.

To begin with, we disagree with Mr. Washington’s assertion that his interpretation

       4
         United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S.
365, 371 (1988) (citations omitted).
       5
         Carlson Constr. Co. v. Dupont W. Condo., Inc., 932 A.2d 1132, 1134
(D.C. 2007) (quoting District of Columbia v. Bender, 906 A.2d 277, 281-82 (D.C.
2006)).
       6
          Aboye v. United States, 121 A.3d 1245, 1249 (D.C. 2015) (internal
quotation marks omitted).
       7
         Abadie v. District of Columbia Contract Appeals Bd., 843 A.2d 738, 742
(D.C. 2004) (internal quotation marks omitted).
                                           8

is the only one that keeps § 16-803.02(a)(2) from being surplusage. An alternative

interpretation is that § 16-803.02(a)(2) gives the Superior Court discretion to seal

the portion of a record that relates to an offense that was subsequently

decriminalized or legalized even if — contrary to § 16-803.02(a)(1) — the offense

was “in connection with” another still-criminal or still-illegal charge, or “result[ed]

in” conviction of a still-criminal or still-illegal offense.           This alternative

interpretation is in accord with the statutory purpose as reflected in the title of the

record-sealing legislation (Bill 20-467), as reported by the Council Committee on

the Judiciary and Public Safety in its September 17, 2014, Report, the “Record

Sealing for Decriminalized and Legalized Offenses Act of 2014.” 8 The alternative

interpretation also is in harmony with the statutory language indicating that

portions of a record may be sealed. See § 16-803.02(b)(3)(A) (“In a case involving

co-defendants in which the [c]ourt orders the movant’s records sealed, the [c]ourt




      8
           The title of § 16-803.02 as added by the codifiers — “Sealing of public
records for decriminalized or legalized offenses” — also supports the alternative
interpretation. But see, e.g., United States v. Castro, 837 F.2d 441, 442 n.1 (11th
Cir. 1988) (title that “was added subsequent to enactment by those responsible for
codification of the legislation . . . cannot . . . properly be of aid in determining the
intent of [the legislature] . . . . Where headings of chapters, articles, or sections are
mere arbitrary designations inserted for convenience of reference by clerks or other
persons who have no legislative authority, such head[ing]s are held not to be
proper matters for consideration in the interpretation of the statute.”) (citations,
parentheses, and internal quotation marks omitted).
                                         9

may order that only those records, or portions thereof, relating solely to the movant

be redacted.”).



      In addition, the legislative history of § 16-803.02 supports our alternative

interpretation. The Committee Report on Bill 20-467 states as follows:



             While Bill 20-467 makes further amendments to the
             record sealing laws in the District, the bill does not
             require the same balancing underlying the 2006 and 2012
             Acts, as Bill 20-467 only addresses criminal records
             relating to offenses that have been decriminalized or
             legalized after the date of the arrest or conviction.


Committee Report on Bill 20-467 at 4 (emphasis added). As can be seen, the

language from the Committee Report quoted above refers to other District of

Columbia record-sealing provisions, which also support our alternative

interpretation of § 16-803.02. D.C. Code §16-803 sets out procedures that may

enable individuals arrested, charged with, or convicted of eligible misdemeanors or

felonies to obtain sealing of their records after prescribed waiting periods and upon

satisfaction of other requirements (and, in the case of a conviction, upon the

movant’s showing by “clear and convincing evidence” that sealing is in the

interests of justice, § 16-803(i)(3)).   We discern no sensible reason why the

Council would have intended — through § 16-803.02 — to allow the Superior
                                          10

Court to seal the records of any still-criminal or still-illegal offenses that were in

connection with marijuana-possession or other decriminalized or legalized

offenses, and to do so upon a showing by a mere “preponderance of the evidence”

that sealing is in the interest of justice (§ 16-803.02(a)(2)(B)), when the records

relating to those still-criminal or still-illegal offenses would not (or would not yet)

be eligible for record-sealing if an arrest, charge or conviction for now-

decriminalized or legalized conduct had not accompanied them.



      Finally, the Superior Court could reasonably find that it is in the interest of

justice to seal the records of a marijuana-possession arrest, charge, or conviction

(or the records of some other now-decriminalized or legalized conduct) even while

leaving to stand the records of an accompanying charge or conviction for a still-

criminal or still-illegal offense. For example, the court might reasonably find that

a movant has a strong “interest[] . . . in sealing the publicly available records of his

. . . conviction” for marijuana possession, and that sealing the record of his or her

marijuana-possession conviction would “enhanc[e] the movant’s employability,”

§§ 16-803.02(a)(2)(A)(i) and (iii), even if the record of an accompanying still-

criminal offense that did not result in conviction were left to stand. Or, as another

example, the court might reasonably find that sealing the record of a marijuana-

possession conviction would “enhanc[e] the movant’s employability,” id., even if
                                         11

the record of a more serious, accompanying charge or conviction was, at least

temporarily, left to stand, if the waiting period for obtaining sealing of the records

of that accompanying charge or conviction had run (or would soon have run),

making discretionary sealing available under § 16-803.         Thus, our alternative

interpretation that discretionary sealing is available only for the records of a no-

longer-criminal offense is not undermined by the considerations mandated by § 16-

803.02(a)(2)(A)(i)-(iv).



      For the foregoing reasons, we hold that § 16-803.02(a)(2) gives the Superior

Court discretion, in the interest of justice, to seal the portions of a case record

pertaining to now-decriminalized or legalized conduct, but does not authorize the

court to seal the portions of a case record pertaining to an accompanying, still-

criminal or still-illegal offense. We affirm the trial court’s order as it pertains to

sealing of the records of Mr. Washington’s PCP conviction and dismissed PCP

charge, but we remand for the court to consider whether to seal the records of Mr.

Washington’s accompanying marijuana-possession arrest and charges.



                                        So ordered.
