                                                  Supreme Court

                                                  No. 2011-5-M.P.
                                                  (96-8354)
                                                  (09-17581)


     State                     :

       v.                      :

Doris E. Poulin.               :




 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
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                                                                   Supreme Court

                                                                   No. 2011-5-M.P.
                                                                   (96-8354)
                                                                   (09-17581)


                    State                      :

                      v.                       :

               Doris E. Poulin.                :


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

                                          OPINION

         Justice Goldberg, for the Court. This case came before the Supreme Court on April 2,

2013, on a petition for certiorari filed by Doris E. Poulin (hereinafter Poulin or defendant),

against the State of Rhode Island (state), seeking review of a decision by a judge of the District

Court denying her motions to seal records related to two misdemeanor complaints which resulted

in dismissals. For the reasons set forth in this opinion, we quash the judgment of the District

Court.

                                         Facts and Travel

         On January 18, 1996, defendant entered a plea of nolo contendere to one felony count of

possession of a controlled substance.      In exchange for her plea, defendant was placed on

probation for two years, required to complete a substance-abuse program, and ordered to perform

100 hours of community service. It is undisputed that she complied with all of the conditions of

her probation. However, defendant subsequently was charged with the misdemeanor offense of

operating a motor vehicle on a suspended license, a charge that was dismissed on July 18, 1996.

Many years later, on December 15, 2009, defendant was arrested and charged with driving under



                                                -1-
the influence; that misdemeanor charge was dismissed on February 3, 2010. It is the records of

these latter two charges which are the subject of this case.

          In accordance with G.L. 1956 § 12-1-12.1,1 defendant moved in the District Court to

have the records related to those two misdemeanor charges sealed and, further, to have the law-

enforcement-identification records related to those charges destroyed.2 In denying the motions

to seal, the trial judge likened defendant‟s motions to motions for the expungement of a criminal

record and concluded that the prior drug offense for which defendant was placed on probation

was, for purposes of § 12-1-12.1, a conviction, such that “this [d]efendant would, in fact, be

barred from having her two cases expunged, even though they are dismissals.”3 The trial judge

explained that it would not be logical for the definition of “conviction” to differ as between the

sealing and expungement statutes, which, she determined, were “somewhat intertwined.” The

trial judge concluded that our decisions in State v. Briggs, 934 A.2d 811 (R.I. 2007), and State v.

Alejo, 723 A.2d 762 (R.I. 1999), stood “for the proposition that a nolo plea, followed by a


1
    General Laws 1956 § 12-1-12.1(a) provides:

          “Any person who is acquitted or otherwise exonerated of all counts in a criminal
          case, including, but not limited to, dismissal or filing of a no true bill or no
          information, may file a motion for the sealing of his or her court records in the
          case, provided, that no person who has been convicted of a felony shall have his
          or her court records sealed pursuant to this section.”
2
  The first motion to seal was in reference to the complaint including the charge of driving under
the influence; the second motion to seal was in reference to the complaint including the
dismissed charge for operating with a suspended license.
3
    Specifically, the trial justice stated:

          “I find that based upon the cases of [Alejo] and Briggs and the other line of cases
          that hold a nolo plea followed by probation constitute[s] a conviction, this court
          does find that for purposes of [§]12-1-12.1 a nolo plea followed by probation is a
          conviction, and this [d]efendant would, in fact, be barred from having her two
          cases expunged, even though they are dismissals, so [the] motion[s] to seal, with
          all respect, [are] denied.”
                                                 -2-
sentence of probation, is considered a conviction * * * for the purposes of the expungement

statute.” Accordingly, the trial justice declared that “a plea of nolo followed by a probationary

period would be considered a conviction [for purposes of the sealing statute].” We granted

defendant‟s petition for certiorari.

         The defendant frames the issue before us as “[w]hether a court can refuse to seal a

dismissed criminal charge pursuant to R.I. Gen. Laws § 12-1-12 (2012) when the moving party

has not been convicted of a felony as defined by R.I. Gen. Laws § 12-18-3 (2012).”4 The

defendant then advances several arguments in support of her contentions, some of which we

need not address. Primarily, Poulin argues that the plain and unambiguous language of the

relevant statutes dictates that she is entitled to have the court files in the dismissed cases sealed

and all records reflecting those complaints destroyed. Next, defendant argues that the sealing

and expungement statutes are separate and distinct in both purpose and design and that,

therefore, the statutes should not be treated similarly. The defendant also asserts that the sealing

statutes do not conflict with the recording statute, which imposes a duty of record keeping on the

Attorney General.

         Not surprisingly, the state argues that a plea of nolo contendere to a felony charge

followed by probation constitutes a felony conviction that disqualifies a defendant from the

benefits of the sealing statute.       Specifically, the state contends that the plain wording and

statutory structure of chapter 1 of title 12 lead to the conclusion that a plea of nolo contendere



4
    General Laws 1956 § 12-18-3(a) provides, in pertinent part:

         “Whenever any person shall be arraigned before the district court or superior
         court and shall plead nolo contendere, and the court places the person on
         probation pursuant to § 12-18-1, then upon the completion of the probationary
         period, and absent a violation of the terms of the probation, the plea and probation
         shall not constitute a conviction for any purpose.”
                                                  -3-
followed by probation constitutes a conviction for the purposes of the sealing statute. Moreover,

the state argues that this Court‟s precedent concerning the meaning of a conviction—and the case

law involving sealing and expungement of criminal records—supports the state‟s argument.

                                       Standard of Review

       “Our review of a case on certiorari is limited to an examination of „the record to

determine if an error of law has been committed.‟” State v. Greenberg, 951 A.2d 481, 489 (R.I.

2008) (quoting Gaumond v. Trinity Repertory Co., 909 A.2d 512, 516 (R.I. 2006)). In addition

to examining the record for judicial error, “we inspect the record to discern if there is any legally

competent evidence to support the findings of the hearing justice below.” Brown v. State, 841

A.2d 1116, 1121 (R.I. 2004) (citing Ryan v. Roman Catholic Bishop of Providence, 787 A.2d

1191, 1193 (R.I. 2002)).

       This Court reviews questions of statutory construction and interpretation de novo. Casale

v. City of Cranston, 40 A.3d 765, 768 (R.I. 2012) (citing Iselin v. Retirement Board of the

Employees‟ Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008)); see also

Webster v. Perrotta, 774 A.2d 68, 75 (R.I. 2001). “We consistently have held that when a statute

contains clear and unambiguous language, this Court interprets the statute literally and gives the

words their plain and ordinary meanings.” Casale, 40 A.3d at 768 (citing Iselin, 943 A.2d at

1049); see also Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.

1996). We note 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)). “[W]e 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



                                                -4-
of all other sections.‟” State v. Briggs, 58 A.3d 164, 168 (R.I. 2013) (quoting Mendes v. Factor,

41 A.3d 994, 1002 (R.I. 2012)); see also Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 259

(R.I. 2011).

                                              Discussion

       We begin our analysis of the principal issue in this case—whether a plea of nolo

contendere to a felony charge followed by a successfully completed term of probation constitutes

a conviction for the purpose of the sealing statutes—with a discussion of the relevant statutory

provisions.

       The sealing statutes are set forth in §§ 12-1-12 and 12-1-12.1. Section 12-1-12(a),

“Destruction or sealing of records of persons acquitted or otherwise exonerated,” provides, in

pertinent part:

                  “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
                  established by § 12-1-4; provided, that the person shall not have
                  been previously convicted of any felony offense * * *.”

       Section 12-1-12.1, “Motion for sealing of records of persons acquitted or otherwise

exonerated,” provides a statutory mechanism to ensure that the provisions of § 12-1-12 are

complied with by the appropriate agency, on motion by the affected person. Section 12-1-

12.1(a) provides:


                                                  -5-
                “Any person who is acquitted or otherwise exonerated of all counts
                in a criminal case, including, but not limited to, dismissal or filing
                of a no true bill or no information, may file a motion for the
                sealing of his or her court records in the case, provided, that no
                person who has been convicted of a felony shall have his or her
                court records sealed pursuant to this section.”

We are mindful that the practical concepts of sealing and expunging5 records frequently are

conflated and that references to sealing and expungement sometimes are employed

interchangeably.

         At a fundamental level, the sealing and expungement statutes relate to the destruction or

elimination from public view of certain records of criminal arrests and/or convictions; however,

the provisions diverge from that common premise in important ways. There are very different

procedural mechanisms in these statutes: §§ 12-1-12 and 12-1-12.1 permit the sealing of records

related to charges against a person “after there has been an acquittal, dismissal, no true bill, no

information, or [if] the person has been otherwise exonerated,” § 12-1-12; the expungement

provisions, G.L. 1956 §§ 12-1.3-1 through 12-1.3-3, are limited to first offenders and allow for

the “sealing and retention of all records of a conviction and/or probation and the removal from

active files of all records and information relating to conviction and/or probation.” Section 12-

1.3-1(2). The difference between the two statutory schemes is evident. A motion to seal

properly is made with respect to an acquittal and in cases that have been dismissed in

circumstances amounting to an exoneration, while a motion for expungement relates to a



5
    General Laws 1956 § 12-1.3-2(a), “Motion for expungement,” reads:

         “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.”


                                                -6-
criminal disposition—including a case in which probation or a deferred sentence has been

imposed—and is available only to first offenders. See Briggs, 934 A.2d at 818. Significantly, in

enacting the sealing statute, § 12-1-12, the General Assembly elected to exclude persons with

prior felony convictions from its purview.6 It is this classification between persons previously

convicted of a felony offense and all others that we are called upon to address.

       Although the state seeks to extend the reasoning applied in expungement cases to

motions to seal records in cases amounting to an exoneration of the accused, we decline to do so.

By enacting separate and distinct statutory provisions, the Legislature plainly elected to treat

these cases differently. Accordingly, we shall examine them separately.

       Section 12-18-3 is a statutory limitation on the effects of a plea of nolo contendere

followed by probation. Section 12-18-3(a) clearly and unambiguously mandates that, when a

person enters a plea of nolo contendere to a felony charge and receives a sentence of probation,

“the plea and probation shall not constitute a conviction for any purpose.” (Emphasis added.)

We deem this provision controlling. Here, defendant entered a plea of nolo contendere, and

successfully complied with the conditions of her probationary sentence. Accordingly, this plea

does not constitute a conviction for “any purpose” that is unrelated to the original disposition. In

attempting to deprive defendant of the benefits of the sealing statute, the state is seeking to use a

plea of nolo contendere followed by probation as a bar to the sealing of defendant‟s records in a

different case; that is, for some other purpose—to prevent the sealing of records in a dismissed

misdemeanor case. The statute forbids this. Indeed, § 12-18-3(a) provides, in relevant part, that

“[e]vidence of a plea of nolo contendere followed by a period of probation, completed without

6
  We pause to note that the state did not articulate a governmental purpose that is furthered by a
classification that distinguishes between persons with prior felony convictions and those with no
prior convictions.


                                                -7-
violation of the terms of the probation, may not be introduced in any court proceeding * * *.”7

       Further, nothing in §§ 12-1-12 (“Destruction or sealing of records of persons acquitted or

otherwise exonerated”) or 12-1-12.1 (“Motion for sealing of records of persons acquitted or

otherwise exonerated”) directs that a plea of nolo contendere followed by probation should be

deemed a conviction under those statutory provisions. The state argues that we should follow the

reasoning we outlined in Briggs that “characterized a nolo contendere plea followed by probation

as a conviction for purposes of expungement.” Briggs, 934 A.2d at 817 (citing State v.

Alejo, 723 A.2d 762 (R.I. 1999); State v. Gobern, 423 A.2d 1177 (R.I. 1981)). However, our

holding in Briggs is distinguishable from the case at bar in several respects. First, in this case,

we are confronted with a different criminal charge—two dismissed misdemeanor complaints that

are wholly unrelated to the felony charge. Additionally, we made clear in Briggs, 934 A.2d at

816 n.11, that we were considering only the expungement statute, and not the sealing statute.

Indeed, the convictions that were the subject in Briggs were not eligible for sealing, id. at 816 &

n.11, and, further, the appellants in Briggs received deferred sentences, not probation.8 Id. at

813. Therefore, Briggs is neither controlling nor instructive on the issue of what constitutes a

“conviction” in the context of the sealing statutes. Indeed, it makes sense that a plea of nolo

contendere followed by probation would not preclude a defendant from sealing his or her

records. In the sealing context, the affected person has been acquitted or exonerated, whereas a

person seeking to have his or her records expunged has not. Therefore, sealing should be more

7
  We note, though, that a plea of nolo contendere “may be furnished to a sentencing court
following the conviction of an individual for a crime committed subsequent to the successful
completion of probation on the prior offense.” Section 12-18-3(a).
8
  In State v. Briggs, 934 A.2d 811, 817 (R.I. 2007), “[w]e [held] that deferred sentences should
be treated like probationary dispositions in the expungement context.” In the context of sealing,
however, we have not so held. Accordingly, we decline to equate the facts of this case—a nolo
plea followed by probation—to those presented in Briggs—nolo pleas followed by deferred
sentences.
                                               -8-
widely available to those individuals than to those seeking to have their records expunged.

          We conclude that, for purposes of the sealing statute, § 12-1-12.1(a), defendant has not

been convicted of a felony, that she meets all the statutory requirements of the sealing statutes,

and that she is entitled to the benefits provided in those enactments. Accordingly, it was error to

deny defendant‟s motion to seal all records pertaining to her two dismissed misdemeanor arrests.

          We also are satisfied that our holding is not inconsistent with the state‟s statutory duty to

keep and maintain records of convictions in accordance with § 12-1-7 of the General Laws.9

That enactment has no relevance to arrest records and certainly bears no relationship to cases in

which the arrestee has been exonerated.

                                              Conclusion

          For the foregoing reasons, we quash the judgment of the District Court and return the

papers in this case with our decision endorsed thereon.




9
    Section 12-1-7, “Criminal identification records--Stolen property reports,” provides:

                  “It shall be the duty of the attorney general to procure and file for record
          in the office of his or her department so far as the same can be procured,
          fingerprints, plates, photos, outline pictures, descriptions, information, and
          measurements of all persons who shall be or shall have been convicted of [a]
          felony, or imprisoned for violating any of the military, naval, or criminal laws of
          the United States or of any state, and of all well-known and habitual criminals
          from wherever procurable. The attorney general shall procure and keep on file in
          the office of the department, so far as they can be procured, fingerprints,
          measurements, processes, operations, signalletic cards, plates, photographs,
          outline pictures, measurements, and descriptions of any person who shall have
          been or shall be confined in any penal institution of this state, taken in accordance
          with the system of identification in use in any penal institution of this state. The
          attorney general shall also keep on file in the office the reports of lost, stolen,
          found, pledged, or pawned property required to be furnished to him or her.”
                                                  -9-
                           RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:       State v. Doris E. Poulin.

CASE NO:             No. 2011-5-M.P.
                     (96-8354)
                     (09-17581)

COURT:               Supreme Court

DATE OPINION FILED: May 2, 2013

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

WRITTEN BY:          Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:    Sixth Division District Court

JUDGE FROM LOWER COURT:

                     Administrative Judge Elaine T. Bucci

ATTORNEYS ON APPEAL:

                     For State: Lauren S. Zurier
                                Department of Attorney General

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

                                      Allison Belknap
                                      Rule 9 Student Attorney
