                                                       Supreme Court



           State                     :

            v.                       :                 No. 2011-47-C.A.
                                                       (P2/94-1248A)
       James Briggs.                 :

           State                     :

            v.                       :                 No. 2011-50-C.A.
                                                       (P2/94-3597A)
Anna M. Matthias (Mathias).          :




    NOTICE: This opinion is subject to formal revision before
    publication in the Rhode Island Reporter. Readers are requested to
    notify the Opinion Analyst, Supreme Court of Rhode Island, 250
    Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
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    corrections may be made before the opinion is published.
                                                                      Supreme Court



                      State                        :

                        v.                         :                  No. 2011-47-C.A.
                                                                      (P2/94-1248A)
                  James Briggs.                    :

                      State                        :

                        v.                         :                  No. 2011-50-C.A.
                                                                      (P2/94-3597A)
          Anna M. Matthias (Mathias).              :

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


                                           OPINION

       Chief Justice Suttell, for the Court. In these consolidated appeals, the defendants,

James Briggs and Anna M. Matthias, 1 challenge the denial of their motions to seal records

pursuant to G.L. 1956 § 12-19-19(c) and G.L. 1956 § 12-1-12. Specifically, the defendants

assert that the trial justice erred: by refusing to apply § 12-19-19(c) retroactively; in finding that

said provision violates the separation-of-powers doctrine; and in declining to sever the “shall be

exonerated” portion of the statute from the “shall be sealed” provision. For the reasons set forth

in this opinion, we affirm the judgments of the Superior Court.

                                                  I

                                  Facts and Procedural History

       In 2007, defendants first came before this Court on appeal from the denial of their

motions for expungement. See State v. Briggs, 934 A.2d 811 (R.I. 2007) (hereinafter Briggs I).

1
 Ms. Matthias’s name has been spelled “Mathias” in the caption and numerous court documents,
but it would appear from Ms. Matthias’s pleadings that “Matthias” is the correct spelling. As
such, we will use “Matthias” in this opinion.
                                                -1-
James Briggs had pled nolo contendere to one count of second-degree robbery; and, on January

20, 1995, he received a five-year deferred sentence. Id. at 813. On September 3, 2003, after

completing his deferred sentence, Briggs moved to expunge all records involving his arrest and

plea. Id. Anna Matthias had pled nolo contendere to one count of possession of a controlled

substance; and, on March 4, 1996, she received a five-year deferred sentence. Id. On September

18, 2003, after completing her deferred sentence, Matthias also moved to expunge the records of

her arrest and plea. Id. On May 4, 2004, both motions were denied. Id. at 814. The hearing

justice found that the deferred sentences were not automatically expunged, but rather that they

were subject to the expungement statutes, G.L. 1956 §§ 12-1.3-2 and 12-1.3-3. 2 Briggs I, 934

A.2d at 814. Because Briggs had committed a crime of violence, and Matthias had pled nolo

contendere to charges of simple assault within the previous ten years, neither defendant met the

criteria for expungement under those statutes. Id. On appeal to this Court, both defendants

contended that the hearing justice erred by relying on the expungement statutes, arguing that,

instead, the Superior Court should have exercised its “inherent authority” to expunge. Id. In

Briggs I, this Court affirmed the Superior Court’s ruling and held that, for purposes of the

expungement statutes, nolo contendere pleas followed by deferred sentences constitute

convictions which may be expunged only by satisfying the statutory criteria. Id. at 816.



2
  General Laws 1956 § 12-1.3-2(a) reads, in relevant part, “[a]ny 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 * * * provided that no person who has been convicted of a crime of violence shall
have his or her records * * * expunged.” In the case of a misdemeanor conviction, a person may
file a motion for expungement “after five (5) years from the date of the completion of his or her
sentence.” Section 12-1.3-2(b). A person with a felony conviction may move to expunge “after
ten (10) years from the date of the completion of his or her sentence.” Section 12-1.3-2(c).
Section 12-1.3-3(b)(1) provides that the court has discretion to grant expungement provided that
“in the five (5) years preceding the filing of the motion, if the conviction was for a misdemeanor,
or in the ten (10) years preceding the filing of the motion if the conviction was for a felony, the
petitioner has not been convicted nor arrested for any felony or misdemeanor * * *.”
                                               -2-
         In 2010, the General Assembly passed an act amending § 12-19-19 3 (the deferred-

sentence statute), which, inter alia, added two new subsections, (b) and (c). Subsection (c) of the

amended statute 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.




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

The expungement statutes, however, have not been amended since Briggs I, save for a provision

in § 12-1.3-3 that requires a petitioner to pay a $100 fee. P.L. 2009, ch. 68, art. 11, § 1(c).

       In August 2010, Briggs and Matthias, as well as a number of others who similarly had

completed deferred sentences, filed motions to seal under § 12-19-19(c). It is important to note

that defendants requested only that their records be sealed; they did not seek exoneration.

Although the then-Attorney General had submitted a letter to the General Assembly supporting

passage of the amendments to “bring more flexibility to the deferred sentencing agreement,” the

state objected to these motions. The hearing justice accepted briefs from the several movants

and the state, and heard arguments on November 5, 2010.

       To support their motions, defendants argued that they were the “intended recipients of

this remedial legislation” and under the language of the amended statute were eligible to have

their records sealed; thus there was no issue of retroactivity. The defendants maintained that if

the court found that retroactivity was an issue, the 2010 amendments were remedial in nature and

appropriate for retroactive application. Finally, defendants argued that the amended statute did

not offend the doctrine of separation of powers. The state maintained that the amended statute

could not be applied retroactively without clear language indicating an intent to do so, and that, if

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

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

       On November 12, 2010, 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


                                                 -4-
to be applied retroactively nor does it apply retroactively by necessary implication.” The hearing

justice further found that the statute created a substantive right and that its retroactive application

would violate the doctrine of separation of powers. Both defendants filed appeals, which we

ordered consolidated on April 15, 2011.

                                                  II

                                        Standard of Review

       We review questions of statutory construction and interpretation de novo; “[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. Finally, “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).




                                                 -5-
                                                 III

                                             Discussion

          On appeal, defendants raise three issues. First, defendants argue that the hearing justice

erred in ruling that the statute should not be applied retroactively. Next, defendants assert that

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

thereby avoiding any separation-of-powers issue. Finally, defendants maintain that the hearing

justice erred when she “relied upon a sentence in a footnote in Briggs I” to find that exoneration

was a prerequisite to the sealing remedy.

          In reply, the state argues that the hearing justice was correct in finding that § 12-19-19

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

implication requiring retroactivity, and because the statute creates new substantive rights.

Further, the state argues that retroactive application of the statute would violate separation of

powers and that exoneration is not severable from sealing as the statute is now written. Finally,

the state argues that the hearing justice was correct in holding that the General Assembly cannot

require sealing under § 12-19-19(c) without first amending § 12-1-12. 4



4
    General Laws 1956 § 12-1-12 provides as follows:
                “(a) Any fingerprint, photograph, physical measurements, or other
                record of identification, heretofore or hereafter taken by or under
                the direction of the attorney general, the superintendent of state
                police, the member or members of the police department of any
                city or town or any other officer authorized by this chapter to take
                them, of a person under arrest, prior to the final conviction of the
                person for the offense then charged, shall be destroyed by all
                offices or departments having the custody or possession within
                sixty (60) days after there has been an acquittal, dismissal, no true
                bill, no information, or the person has been otherwise exonerated
                from the offense with which he or she is charged, and the clerk of
                court where the exoneration has taken place shall, consistent with
                § 12-1-12.1, place under seal all records of the person in the case
                including all records of the division of criminal identification
                                                 -6-
                                                 A

                                           Retroactivity

                                                 1

                                      Necessary Implication

       The defendants argue that the language of § 12-19-19, taken as a whole, implies that the

General Assembly intended the sealing provision to apply to those who successfully complete a

deferred sentence agreement, regardless of when that agreement was entered.              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)). The defendants concede that the statute “does

not contain an explicit legislative direction that it was intended to apply retroactively to deferred

sentence agreements entered prior to the amendment’s effective date,” but they maintain that,

read as a whole, § 12-19-19(c) is intended to have retroactive effect. In the absence of “clear,

strong language,” defendants point to the use of the words “whenever” and “any” within


               established by § 12-1-4; provided, that the person shall not have
               been previously convicted of any felony offense. Any person who
               shall violate any provision of this section shall be fined not
               exceeding one hundred dollars ($100).
                       “(b) [R]equirements of this section shall also apply to
               persons detained by police, but not arrested or charged with an
               offense, or to persons against whom charges have been filed by the
               court, and the period of such filing has expired.
                       “(c) Notwithstanding any other provision of this section,
               any person who has been charged with a complaint for a crime
               involving domestic violence where the complaint was filed upon a
               plea of not guilty, guilty or nolo contendere pursuant to § 12-10-
               12, must wait a period of three (3) years from the date of filing
               before the records associated with the charge can be expunged,
               sealed or otherwise destroyed.”

                                                -7-
subsection (a) of the statute as signaling the legislative intent to give the statute the broadest

application possible.

       The state argues that, because the legislation states that it “shall take effect upon passage”

and because § 12-19-19(a) is drafted in the present and future tenses, the intention that the statute

was to have prospective effect is clear. The state dismisses any importance placed on the words

“whenever” and “any,” noting that the use of those terms predates the 2010 amendments by more

than eighty years. See P.L. 1927, ch. 1063, § 1.

       Our de novo review of § 12-19-19 reveals no language that would direct or necessarily

imply that the General Assembly intended the 2010 amendments to have retroactive effect. On

the contrary, this Court previously has held that an act amending a statute stating “[t]his act shall

take effect upon passage * * * [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, taken as a whole, does not demonstrate a

legislative intent by necessary implication that § 12-19-19(c) is applicable to deferred sentences

entered into before the effective date of the 2010 amendments.

                                                   2

                                     Substantive or Remedial

       Having found neither clear, strong language, nor any necessary implication that the

General Assembly intended retroactive application, this Court next examines whether the statute

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


                                                -8-
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)).

       Here, the hearing justice found that the amended statute “expand[ed] the universe of

people who are afforded the right to have their criminal records shielded from the public.” We

agree and conclude that § 12-19-19(c) creates new substantive rights because, prior to the

amendments, the sealing of records was not available to individuals who had committed a crime

of violence or who were not first-time offenders, such as defendants in this case. Moreover,

§ 12-19-19(c) purports to exonerate any person who successfully complies with the terms and

conditions of a written deferral agreement “of the charges for which sentence was deferred.”

Under the expungement regime, a person whose conviction of a crime had been expunged was

not required to disclose his or her conviction except in certain enumerated circumstances—for

example, the fact of an expunged conviction must be disclosed in applications “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(a)-(b). Section 12-19-19(c) contains no such limitation as to disclosure

and would seemingly make exoneration available to those who are not first-time offenders, as

well as those who have committed a crime of violence. We conclude, therefore, that although as

a whole, 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 in 2010 was a substantive amendment and thus not

entitled to retroactive application.


                                               -9-
       Alternatively, defendants argue that there is a presumption in favor of retroactivity when

a penal law is changed for the benefit of those subject to it. The defendants assert that § 12-19-

19 is rehabilitative and where the amendment to a rehabilitative statute is ameliorative, the law

favors retroactivity under the “rule of abatement.”         The state counters that the “rule of

abatement” does not apply to the case at bar, noting that “[t]he common-law rule of abatement

provides that when the Legislature repeals a statute, a defendant cannot thereafter be convicted

under the repealed statute, absent a savings clause.” State v. Pereira, 973 A.2d 19, 33 (R.I. 2009).

We are of the opinion that the amendment to § 12-19-19 does not involve repeal of a criminal

statute and thus the rule of abatement is not applicable in this context.

                                                  B

                                       Separation of Powers

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

not reach the question of whether retroactive application would violate the doctrine of separation

of powers. In State v. Warzycha, 2010 WL 4682605, incorporated by reference in the lower

court’s decision in these cases, the hearing justice stated, and we agree, that it was unnecessary

to determine whether prospective application would be unconstitutional. Because no defendant

who entered a deferred-sentence agreement subsequent to the 2010 amendments to § 12-19-19

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

the same reasons, we need not reach the question of whether the “exoneration clause” is, as the

defendants urge, severable from the “sealing clause.”




                                                - 10 -
                                               IV

                                          Conclusion

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

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




                                              - 11 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. James Briggs.
                      State v. Anna M. Matthias (Mathias).

CASE NO:              No. 2011-47-C.A.
                      (P2/94-1248A)

                      No. 2011-50-C.A.
                      (P2/94-3597A)

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 Defendants: Thomas R. Bender, Esq.
