                                                   Supreme Court

                                                   No. 2011-52-C.A.
                                                   (P2/03-773A)

      State                      :

        v.                       :

 Eileen Morrice.                 :




NOTICE: This opinion is subject to formal revision before
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notify the Opinion Analyst, Supreme Court of Rhode Island, 250
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                                                                       Supreme Court

                                                                       No. 2011-52-C.A.
                                                                       (P2/03-773A)

                      State                        :

                        v.                         :

                 Eileen Morrice.                   :


               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                           OPINION

       Chief Justice Suttell, for the Court. The defendant, Eileen Morrice, appeals from the

denial of her motion to seal records pursuant to G.L. 1956 § 12-19-19(c) and G.L. 1956 § 12-1-

12. Specifically, the defendant asserts that the trial justice erred: (1) in finding that the plain and

ordinary meaning of the statute did not entitle the defendant to relief; by refusing to apply § 12-

19-19(c) retroactively; (2) in finding that the amended provision violates the separation-of-

powers doctrine; and (3) in declining to sever the “shall be exonerated” portion of the statute

from the “shall be sealed” provision. In a companion case decided by this Court today, we held

that the amendments to § 12-19-19 enacted by the General Assembly in 2010 (P.L. 2010, ch.

128, § 1 and ch. 256, § 1) do not have retroactive application. See State v. Briggs, No. 2011-47-

C.A. (R.I., filed Jan. 11, 2013) (Briggs II). For similar reasons set forth in this opinion, we

affirm the judgment of the Superior Court.

                                                  I

                                   Facts and Procedural History

       The record seemingly indicates that Ms. Morrice is a quintessential candidate for a

deferred sentence and the subsequent sealing of records. In the spring of 2003, she was charged


                                                 -1-
with one count of obtaining money under false pretenses over $500. The complaint alleged that

she obtained $7,837 by submitting unemployment insurance certification forms containing false

information. 1 She accepted responsibility for the crime by entering a plea of nolo contendere to

the single count on April 14, 2003 and by agreeing to pay restitution in installments of $130 per

month. In light of her plea, her sentencing was deferred for a period of five years. In addition,

there is no dispute that defendant faithfully complied with all the terms and conditions of her

deferred sentence or that she paid off her restitution seven months early. However, her hope for

the immediate expungement or sealing of her records, or both, was frustrated when this Court

clarified the law in 2007.

       In State v. Briggs, 934 A.2d 811, 815-16 (R.I. 2007) (Briggs I), this Court held that the

Superior Court does not have inherent authority to grant expungement upon the completion of a

deferred sentence; rather, a defendant must satisfy the requirements for statutory expungement

under G.L. 1956 § 12-1.3-2. 2 The Court further held that, for purposes of expungement, nolo

contendere pleas followed by deferred sentences constitute convictions. Briggs I, 934 A.2d at

816. Under § 12-1.3-2(b), a first offender may file a motion for expungement five years after the

completion of his or her sentence (if a misdemeanor) or ten years after the completion of

sentence (if a felony).

1
  In a decision issued on November 12, 2010, the hearing justice stated that “[d]efendant entered
a plea of nolo contendere to one count of conspiracy to violate the Controlled Substances Act
and two counts of obtaining a controlled substance by fraud.” This would appear to be an error.
The criminal complaint refers only to the charge of obtaining money under false pretenses, and
nothing in the record indicates any other charge.
2
  General Laws 1956 § 12-1.3-2(a) states:
                “Any person who is a first offender may file a motion for the
                expungement of all records and records of conviction for a felony
                or misdemeanor by filing a motion in the court in which the
                conviction took place, provided that no person who has been
                convicted of a crime of violence shall have his or her records and
                records of conviction expunged.”
                                              -2-
         In 2010, the General Assembly amended § 12-19-19 3 (the deferred-sentence statute) to

include, inter alia, a new subsection (c), which states:

                        “If a person, after the completion of the five (5) year
                deferment period is determined by the court to have complied with
                all of the terms and conditions of the written deferral agreement,
                then the person shall be exonerated of the charges for which
                sentence was deferred and records relating to the criminal
                complaint, information or indictment shall be sealed pursuant to
                the provision of § 12-1-12. Further, if any record of the criminal
                complaint, information or indictment has been entered into a
                docket or alphabetical index, whether in writing or electronic
                information storage or other data compilation system, all
                references to the identity of the person charged by the complaint
                shall be sealed.” Section 12-19-19, as amended by P.L. 2010, ch.
                128, § 1 and ch. 256, § 1.

Section 2 of P.L. 2010, chs. 128 and 256 provides that the act “shall take effect upon passage.”




3
    General Laws 1956 § 12-19-19 (a) and (b) provide:

                        “(a) Whenever any person is arraigned before the superior
                court and pleads guilty or nolo contendere, he or she may be at any
                time sentenced by the court; provided, that if at any time the court
                formally defers sentencing then the person and the attorney general
                shall enter into a written deferral agreement to be filed with the
                clerk of the court. When a court formally defers sentence, the
                court may only impose sentence within five (5) years from and
                after the date of the written deferral agreement, unless during the
                five (5) year period, the person shall be declared to have violated
                the terms and conditions of the deferment pursuant to subsection
                (b) of this section in which event the court may impose sentence.
                        “(b) It shall be an express condition of any deferment of
                sentence in accordance with this section that the person agreeing to
                said deferment of sentence shall at all times during the period of
                deferment keep the peace and be of good behavior. A violation of
                this express condition or any other condition set forth by either the
                court or the written deferral agreement shall violate the terms and
                conditions of the deferment of sentence and the court may impose
                sentence. The determination of whether a violation has occurred
                shall be made by the court in accordance with procedures relating
                to violation of probation §§ 12-19-2 and 12-19-14.”

                                                -3-
       In August 2010, Morrice filed a motion to seal under § 12-19-19(c).               Although

defendant’s motion was entitled “[m]otion to [e]xpunge and [s]eal,” her memorandum in support

of the motion made clear that she sought only to have her records sealed. 4

       The defendant argued that under the plain and ordinary language of the newly amended

statute, she was eligible to have her records sealed; thus there was no issue of retroactivity. The

defendant maintained that if the court found that retroactivity was an issue, as a remedial statute

§ 12-19-19 was entitled to retroactive application, and further, that to hold otherwise would lead

to an absurd result. Finally, defendant argued that because of her lack of criminal history and her

rehabilitation through the successful completion of her deferment, she was entitled to have her

records sealed and that equity required no less. The state argued that the amended statute should

not be applied retroactively without clear language indicating such a legislative intent, and that,

if applied retroactively, the statute would “constitute an impermissible exercise of judicial power

by the Legislature” and thereby would violate the separation-of-powers doctrine.

       The defendant’s motion was heard on November 5, 2010, along with similar motions

filed by a number of persons who also had successfully completed deferred sentences. The

hearing justice issued a written “main decision” in one case (State v. Warzycha, 2010 WL

4682605 (R.I. Super. Nov. 12, 2010)), which was incorporated by reference in the decisions in

the remaining individual cases. The court denied all of the motions, finding that § 12-19-19

“does not include any clear, strong language indicating an intent that it is to be applied

retroactively nor does it apply retroactively by necessary implication.” The hearing justice also




4
  Although defendant’s brief states clearly that she neither moved for, nor is she seeking, the
remedy of exoneration, at oral argument, defendant stated that she was seeking both exoneration
and sealing. Because defendant admits that she did not move for exoneration, we deem that
argument waived.
                                               -4-
concluded that the statute created a substantive right, and that its retroactive application would

violate the doctrine of separation of powers. On November 29, 2010, defendant filed this appeal.

                                                 II

                                       Standard of Review

        We review questions of statutory construction and interpretation de novo, and “[w]hen

the language of the statute is clear and unambiguous, it is our responsibility to give the words of

the enactment their plain and ordinary meaning.” Mendes v. Factor, 41 A.3d 994, 1002 (R.I.

2012) (quoting Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 259 (R.I. 2011)).                 In

undertaking this responsibility, we are mindful that “[i]t is generally presumed that the General

Assembly ‘intended every word of a statute to have a useful purpose and to have some force and

effect.’” Curtis v. State, 996 A.2d 601, 604 (R.I. 2010) (quoting LaPlante v. Honda North

America, Inc., 697 A.2d 625, 629 (R.I. 1997)). This Court repeatedly has held that “statutes will

be given prospective application unless otherwise provided.” In re Alicia S., 763 A.2d 643, 646

(R.I. 2000).   Importantly, “[o]nly when the Legislature, by express language or necessary

implication, manifests its intent that a statute be given retroactive effect, will the courts apply it

retrospectively.” Id. at 646-47. Further, “we must ‘consider the entire statute as a whole;

individual sections must be considered in the context of the entire statutory scheme, not as if

each section were independent of all other sections.’” Mendes, 41 A.3d at 1002 (quoting

Generation Realty, LLC, 21 A.3d at 259). Lastly, “under no circumstances will this Court

‘construe a statute to reach an absurd result.’” Id. (quoting Generation Realty, LLC, 21 A.3d at

259).




                                                -5-
                                               III

                                           Discussion

       On appeal, defendant raises three issues. First, defendant argues that the hearing justice

erred in finding that the plain and ordinary meaning of the amended statute did not entitle

defendant to benefit from it. Further, defendant contends that the hearing justice erred in ruling

that the 2010 amendments should not be applied retroactively. Finally, defendant asserts that the

hearing justice erred in failing to sever the “exoneration” remedy from the “sealing” remedy,

thereby avoiding any separation-of-powers issue.

       In reply, the state argues that the hearing justice was correct in finding that the

amendments should not be applied retroactively because of the absence of clear language or any

necessary implication requiring retroactivity, and because the amendments create new

substantive rights. Further, the state argues that retroactive application of the 2010 amendments

would violate the separation-of-powers doctrine, and that the exoneration remedy is not

severable from the sealing remedy as the statute now is written.

                                                A

                                          Retroactivity

                                                1

                                 Plain and Ordinary Meaning

       The defendant argues that the language of § 12-19-19 is “crystal clear and entirely

unambiguous” and that it requires the court to seal the records of those defendants who, like Ms.

Morrice, have completed their deferred sentence period, regardless of when that deferred

sentence agreement was executed. She further argues that the 2010 amendments did not change

the conditions of deferred sentences; rather, they merely require the Superior Court to seal the


                                               -6-
records of a person once it has determined that the person has successfully completed his or her

deferred sentence.    Thus, she contends, the plain and ordinary meaning of § 12-19-19(c)

commands the Superior Court to consider her compliance with the terms of her deferred sentence

and, if it finds that she did comply, then to seal her records.

       This Court consistently has held that “‘statutes and their amendments are applied

prospectively,’ absent ‘clear, strong language, or by necessary implication that the Legislature

intended a statute to have retroactive application * * *.’” Rodrigues v. State, 985 A.2d 311, 318

(R.I. 2009) (quoting Ducally v. State, 809 A.2d 472, 474 (R.I. 2002)).

       Based upon our de novo review of § 12-19-19, as amended in 2010, we find no “clear,

strong language” directing that the remedies of exoneration and sealing be applied to deferred

sentences entered into prior to the effective date of the amendments.

       Arguably, the 2010 amendments to § 12-19-19 did not radically alter the then-existing

practice concerning the deferment of sentences. Nevertheless, the amendments create a more

formalized process.     The General Assembly added two new subsections to § 12-19-19.

Subsection (b) of § 12-19-19 expressly conditions any deferment of sentence upon the

defendant’s agreement to keep the peace and be of good behavior and clarifies that the court may

impose sentence upon the defendant’s violation of any of the terms and conditions of the

deferment, such violation to be determined “in accordance with procedures relating to violation

of probation §§ 12-19-2 and 12-19-14.”

       Section 12-19-19(c) provides for the exoneration of the charges and the sealing of the

records upon successful compliance with all the terms and conditions of the “written deferral

agreement.”    We note that the 2010 amendments revised the term “written agreement” to

“written deferral agreement.” Although this change seemingly is minor and technical in nature,


                                                 -7-
the fact that the remedies of exoneration and sealing are specifically contingent upon compliance

with the “written deferral agreement” suggests that such remedies apply only to deferred

sentences imposed after the date of amendment. We reject, therefore, defendant’s contention

that the plain language of the amended statute compels the sealing of her records—and

presumably the records of all others who have complied with the terms and conditions of

agreements entered into before the 2010 amendments were enacted.

       Nor do we discern a need for retrospective application of § 12-19-19(c) by necessary

implication. On the contrary, the only temporal mandate given by the General Assembly is § 2

of the enacting legislation, which states, “[t]his act shall take effect upon passage.” As this Court

has previously held, such language, “[i]n the absence of any express language or implicit

indication that the statutory amendment should be applied retroactively,” indicates an intent

toward prospective application only. In re Alicia S., 763 A.2d at 647. See also Rodrigues, 985

A.2d at 318 (stating that the Court had previously held that a statute did not apply retroactively

when the statute provided that it did not take effect until its date of passage). We are satisfied,

therefore, that the plain language of § 12-19-19 as amended in 2010 does not necessarily imply

that the General Assembly intended for subsection (c) to apply retroactively.

                                                 2

                                        Legislative Intent

       The defendant argues alternatively that the 2010 amendments evince a legislative intent

that they be applied retroactively. To support this argument, defendant first contends that the

amendments to § 12-19-19 were enacted in direct response to our holding in Briggs I that the

expungement statute was the only available recourse for the expungement of records after the

successful completion of a deferred sentence. According to defendant, the amendments were


                                                -8-
enacted “to provide an additional avenue of recourse by granting the Superior Court the authority

and jurisdiction to seal deferred sentences under * * * § 12-19-19.” She also posits that the

General Assembly was reacting to a letter from the then-Attorney General Patrick Lynch

supporting the proposed amendments. In that letter, Attorney General Lynch wrote that “a

deferred sentence is a contractual agreement that the [s]tate and the defendant enter into

voluntarily and knowingly.” From this assertion, defendant draws the conclusion that “the intent

of the legislature was to provide [her] with the benefit of the Attorney General’s promise in order

to wipe her record clean.”

        Not surprisingly, the state reads the Attorney General’s letter in an entirely different light,

interpreting his endorsement of the proposed amendments as a way to make “deferred sentences

a more ‘palatable’ sentencing option going forward.” Although it is quite possible that Attorney

General Lynch’s support of the subject legislation may well have been helpful to its passage, we

decline to place any significance on his letter as an indicator of legislative intent. See State v.

Santos, 870 A.2d 1029, 1032 (R.I. 2005) (“The plain statutory language is the best indicator of

legislative intent.”).

        The defendant next contends that § 12-19-19 applies retroactively because it is

ameliorative and remedial in nature. This assertion requires us to examine whether the statute is

substantive in nature, or remedial or procedural. See Direct Action for Rights and Equality v.

Gannon, 819 A.2d 651, 658 (R.I. 2003). “Substantive statutes, which create, define, or regulate

substantive legal rights, must be applied prospectively. * * * In contrast, remedial and procedural

statutes, which do not impair or increase substantive rights but rather prescribe methods for

enforcing such rights, may be construed to operate retroactively.” Id. (quoting Pion v. Bess Eaton

Donuts Flour Co., 637 A.2d 367, 371 (R.I. 1994)).


                                                 -9-
       The hearing justice found that the amended statute expanded “the universe of people who

are afforded the right to have their criminal records shielded from the public,” and thus created a

substantive right that otherwise was not available. We agree. Prior to the 2010 amendments,

expungement was not available to individuals who had committed a crime of violence or who

were repeat offenders. See § 12-1.3-2. Moreover, § 12-19-19(c) purports to exonerate 5 any

person who successfully complies with the terms and conditions of a written deferral agreement

“of the charges for which sentence was deferred.”          Before such amendment was enacted,

however, an individual who had been granted an expungement under § 12-1.3-2 nevertheless

was required to disclose the conviction in application “for a law enforcement agency position,

for admission to the bar of any court * * * for a teaching certificate, * * * or [to be] the operator

or employee of an early childhood education facility * * *.” Section 12-1.3-4(b). Section 12-19-

19(c), by contrast, contains no such limitation about disclosure and seemingly would make

exoneration and sealing available to those who are not first-time offenders, as well as to those

who have committed a crime of violence. We conclude, therefore, that although the deferred-

sentence statute is remedial in nature, see Briggs I, 934 A.2d at 816-17, the addition of

subsection (c) to § 12-19-19 was a substantive amendment and not entitled to retroactive

application.

                                                 3

                                         Absurd Result

       Finally, defendant argues that the statute should be interpreted to apply retroactively

because an alternate construction would produce an absurd result. The defendant points to her



5
  As the hearing justice noted, “‘[e]xonerate’ has been defined as to ‘clear from accusation or
blame: exculpate.’” State v. Warzycha, 2010 WL 4682605 (R.I. Super. Nov. 12, 2010) (quoting
Webster’s Third New International Dictionary 797 (1961)).
                                               - 10 -
status as a first-time offender and her compliance with the terms of her deferred sentence

(including, she states, paying off her restitution seven months early) as reasons why she is “the

type of defendant that the [s]tate determined deserves a second chance.” The defendant asserts

that it would be “illogical” for the General Assembly to have intended the amended statute to

apply to those entering deferred sentence agreements after 2010, but not to those who had

entered agreements prior to the amendment. The defendant also points to the apparent pre-

Briggs I practice of granting immediate expungement to some individuals upon completion of

their deferred sentences as further proof that to deny her request to seal would be illogical.

Although the state does not disagree that some individuals were in fact granted expungement

pre-Briggs I, it correctly points out that given this Court’s decision in Briggs I, those individuals

might not have been entitled to that relief.

       The defendant asserts that if relief is not granted to her under § 12-19-19(c), she will not

receive the benefit of the bargain she made when she entered into the deferred-sentence

agreement and that she would have “no ability to receive the relief” promised. We reject this

argument for two reasons. First, an amendment drafted in 2010 could not serve as the basis of a

bargain entered into in 2003, and the relief offered by § 12-19-19(c) is a different remedy

(exoneration and sealing) from that available in 2003. Second, defendant may still receive the

relief allegedly promised, albeit in 2018 rather than 2012. Accordingly, we do not find that

declining to apply § 12-19-19(c) retroactively would reach an absurd result.

                                                 B

                                       Separation of Powers

       Having determined that the statute may not be applied retroactively, this Court need not

reach the question of whether retroactive application would violate the doctrine of separation of


                                               - 11 -
powers. In State v. Warzycha, 2010 WL 4682605, incorporated by reference in the lower court’s

decision in this case, the hearing justice stated, and we agree, that it is unnecessary at this time to

determine whether prospective application would be unconstitutional. Because no defendant

who entered a deferred-sentence agreement subsequent to the enactment of § 12-19-19(c) will

yet have completed his or her five-year deferment, this issue is not yet ripe for review. For these

reasons, we will not reach the question of whether the exoneration clause of § 12-19-19(c) is, as

the defendant urges, severable from the sealing clause.

                                                  IV

                                             Conclusion

       For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

The record of this case shall be remanded to the Superior Court.




                                                - 12 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Eileen Morrice.

CASE NO:              No. 2011-52-C.A.
                      (P2/03-773A)

COURT:                Supreme Court

DATE OPINION FILED: January 11, 2013

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ.

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Kristin E. Rodgers

ATTORNEYS ON APPEAL:

                      For State: Christopher R. Bush
                                 Department of Attorney General

                      For Defendant: Priya N. Lakhi
                                     Director & Supervising Attorney
                                     Criminal Defense Clinic

                                       Juliana McKittrick
                                       Rule 9 Student Attorney
