People v. Sean Daniel Di Asio ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
December 8, 2022
2022COA140No. 20CA2096, Peo v. Di Asio — Government — Public Records
— Criminal Justice Record Sealing — Sealing of Records — Plea
Agreements — Waiver
As a matter of first impression, a division of the court of
appeals interprets the 2019 amendment to section 24-72-703(11),
C.R.S. 2022, which prohibits requiring a defendant to waive future
sealing as part of a plea agreement, and holds that it applies
prospectively from its effective date of August 2, 2019. Accordingly,
the amendment does not apply to the defendant’s 2008 plea and the
court’s order denying sealing is affirmed.
COLORADO COURT OF APPEALS 2022COA140Court of Appeals No. 20CA2096
El Paso County District Court No. 08CR2435
Honorable Jill M. Brady, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sean Daniel Di Asio,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE FREYRE
Lipinsky and Lum, JJ., concur
Announced December 8, 2022
Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General
II, Denver, Colorado, for Plaintiff-Appellee
Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Defendant-
Appellant
¶1 In this record-sealing case, defendant, Sean Daniel Di Asio,
appeals the district court’s order denying his motion to seal his
conviction for obtaining drugs by fraud or deceit, a class 5 felony.
As a matter of first impression, we interpret the 2019 amendment
to section 24-72-703(11), C.R.S. 2022, which prohibits requiring a
defendant to waive future sealing as part of a plea agreement. We
conclude the statute applies prospectively from its effective date of
August 2, 2019, rather than retroactively. Accordingly, we conclude
the amendment does not apply to Di Asio’s 2008 plea agreement
and affirm the court’s order.
I. Background
¶2 In 2008, Di Asio was charged with two felony counts for
distributing and selling prescription drugs using a prescription pad
belonging to his father, a retired physician. He pleaded guilty to
one count of obtaining drugs by fraud or deceit in exchange for the
dismissal of a class 3 felony distribution charge. He also stipulated
to probation conditioned upon his completion of substance abuse
treatment and public service. The plea agreement contained a
provision regarding sealing:
1
I expressly agree to waive and give up any right
I may have, now or in the future, to request
that any records related to this case be sealed,
or to have the Court order such sealing,
whether provided by §[sic]24-72-308, §[sic]24-
72-308.5, C.R.S., or any other provision of law.
This waiver also applies to the sealing of any of
my cases that have been disposed of or
dismissed as part of this plea agreement.
The court accepted the plea agreement and sentenced Di Asio to
two years of supervised probation, which he successfully completed
in 2010. Di Asio did not incur any additional charges after his
release from supervision.
¶3 In 2020, Di Asio filed a motion to seal his conviction record.
He argued that his record was eligible for sealing under section 24-
72-706(1)(g), C.R.S. 2022. That statute provides:
At any hearing to determine whether records
may be sealed, except for basic identification
information, the court must determine that the
harm to the privacy of the defendant or the
dangers of unwarranted, adverse
consequences to the defendant outweigh the
public interest in retaining public access to the
conviction records. In making this
determination, the court shall, at a minimum,
consider the severity of the offense that is the
basis of the conviction records sought to be
sealed, the criminal history of the defendant,
the number of convictions and dates of the
convictions for which the defendant is seeking
2
to have the records sealed, and the need for
the government agency to retain the records.
Di Asio asserted that the harm to his privacy or the danger of
unwarranted, adverse consequences outweighed the public interest
in retaining public access to the record of his conviction.
Specifically, he noted that, because information regarding his
conviction was publicly available, he had been denied employment
and housing, and he had lost his emergency medical technician
license.
¶4 In a letter attached to the motion, Di Asio’s father expressed
his support of Di Asio’s request, attesting that Di Asio felt remorse
for his past behavior and that he had developed into a “responsible
and mature man” since his conviction.
¶5 The People raised three objections to the motion. First, they
argued that Di Asio had waived his right to seal his conviction
record as part of the plea agreement. Second, they argued that the
recent amendments to section 24-72-703(11) prohibiting such a
waiver as part of a plea agreement did not retroactively apply to Di
Asio’s waiver, and that retroactive application would violate the
contracts clause of the Colorado Constitution. Finally, they argued
3
that Di Asio did not meet the criteria for sealing under section 24-
72-706(1)(g) considering the severity of his offense and the public’s
need to be aware of his conviction.
¶6 Di Asio responded that section 24-72-703(11) applied
retroactively to his plea agreement because the retroactivity
language from sections 24-72-705 and 24-72-706, C.R.S. 2022, was
incorporated into section 24-72-703(11) pursuant to the
applicability provision in section 24-72-703(1). He further argued
that applying section 24-72-703(11) retroactively did not violate the
Colorado Constitution.
¶7 At the hearing, Di Asio described the hardships he had
encountered and continued to experience as a result of public
access to the record of his conviction. His father also addressed the
court in support of the motion, and Di Asio provided a letter
supporting sealing from his treating physician. For the first time,
Di Asio also asserted that the People lacked standing to challenge
the constitutionality of the statute. At the court’s request, the
parties filed supplemental briefs addressing the constitutionality of
retroactive application of section 24-72-703(11) and the People’s
standing to assert the same.
4
¶8 In a thorough written order, the district court denied Di Asio’s
motion and found that section 24-72-703(11) did not apply
retroactively to invalidate his waiver of the right to seal in his plea
agreement. The court noted that the language of section 24-72-
703(11) “is silent as to retroactivity.” In addition to this silence, the
court observed that two other sections of the criminal justice
record-sealing statutes — sections 24-72-705(1)(c) and 24-72-
706(3) — contain “unequivocal language mandating retroactive
application.” Applying statutory interpretation principles, the court
found that section 24-72-703(11) applied prospectively only and
that if the General Assembly had intended for it to apply
retroactively, “it certainly could have, and would have, said so, as it
did with Sections 705 and 706.” For the same reasons, it rejected
Di Asio’s argument that that the retroactivity language in sections
24-72-705 and 24-72-706 was incorporated into section 24-72-
703(11).
¶9 Further, the court explained that section 24-72-703(11)
“prohibits defendants from being required to waive their right to
request sealing as a condition of a plea agreement for all plea
agreements entered on or after the effective date of the statute; i.e.,
5
August 2, 2019.” By contrast, the court explained that sections 24-
72-705(1)(c) and 24-72-706(3) permit sealing “in eligible cases (not
all cases) before the effective date of the amendments.” Thus, the
court reasoned that a plea agreement containing a waiver provision
entered before August 2, 2019, is not an eligible case under
sections 24-72-705 and 24-72-706. The court denied the motion
and declined to address whether Di Asio satisfied the criteria for
sealing under section 24-72-706(1)(g) or whether section 24-72-
703(11) violated the contracts clause of the Colorado Constitution.
II. Record Sealing
¶ 10 Di Asio contends the district court misconstrued section 24-
72-703(11) as applying prospectively only and, thus, erroneously
found he was ineligible for sealing under section 24-72-706(1)(b)(III)
because he waived the right to seal as part of the plea agreement.
He also contends that there is no constitutional problem with
retroactive application of section 24-72-703(11), and that the People
lack standing to assert their constitutional argument.
6
¶ 11 We conclude that section 24-72-703(11) applies prospectively
only. Therefore, we do not address Di Asio’s other contentions.1
Developmental Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008)
(“[T]he principle of judicial restraint requires us to ‘avoid reaching
constitutional questions in advance of the necessity of deciding
them.’” (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485
U.S. 439, 445 (1988))).
A. Standard of Review and Applicable Law
¶ 12 Statutory interpretation is a question of law that we review de
novo. Finney v. People, 2014 CO 38, ¶ 12. In interpreting a
statute, “our focus is on legislative intent, and we construe the
statute as a whole, giving consistent, harmonious, and sensible
effect to all of its parts.” City & Cnty. of Denver v. Dennis, 2018 CO
37, ¶ 12. Our statutory interpretation jurisprudence requires that
we reach a “reasonable result consistent with the General
Assembly’s intent,” Sky Fun 1 v. Schuttloffel, 27 P.3d 361, 370
(Colo. 2001), and that, when possible, we interpret “a provision
1 We note that the People’s constitutional arguments were not
included as a basis for the district court’s order, nor did the People
renew those arguments on appeal.
7
existing as part of a comprehensive statutory scheme . . . to
harmonize the whole,” Frank M. Hall & Co. v. Newsom, 125 P.3d
444, 448 (Colo. 2005).
¶ 13 To determine the legislature’s intent, we look first to the plain
language of the statute. Huffman v. City & Cnty. of Denver, 2020
COA 59, ¶ 6. We give statutory language its ordinary meaning
according to the rules of grammar and common usage, id. at ¶ 8,
and where the statutory language is clear and unambiguous, we
apply the plain and ordinary meaning of the provision, Trujillo v.
Colo. Div. of Ins., 2014 CO 17, ¶ 12. “We do not add or subtract
words from the statute, and if the language is unambiguous, we
‘give effect to its plain and ordinary meaning and look no further.’”
Dennis, ¶ 12 (quoting Smokebrush Found. v. City of Colorado
Springs, 2018 CO 10, ¶ 18). Furthermore, “[w]e avoid
interpretations that ‘defeat the obvious intent of the legislature,’ as
well as interpretations that lead to illogical or absurd results.”
Huffman, ¶ 8 (quoting Klinger v. Adams Cnty. Sch. Dist. No. 50, 130
P.3d 1027, 1031 (Colo. 2006)).
¶ 14 “Statutory language is unambiguous if it is susceptible of only
one reasonable interpretation.” Montezuma Valley Irrigation Co. v.
8
Bd. of Cnty. Comm’rs, 2020 COA 161, ¶ 20. “The plainness or
ambiguity of statutory language is determined by reference to the
language itself, the specific context in which that language is used,
and the broader context of the statute as a whole.” People v. Diaz,
2015 CO 28, ¶ 13 (citation omitted).
¶ 15 Absent express legislative intent to the contrary, we presume a
statute only operates prospectively, meaning it solely applies to
events occurring after its effective date. § 2-4-202, C.R.S. 2022; In
re Estate of DeWitt, 54 P.3d 849, 854 (Colo. 2002). To overcome
this presumption, a statute must reveal a clear legislative intent
that it be applied retroactively. Pollock v. Highlands Ranch Cmty.
Ass’n, 140 P.3d 351, 354 (Colo. App. 2006).
¶ 16 Colorado’s criminal record-sealing statutes are contained in
sections 24-72-703 to 24-72-710, C.R.S. 2022. Section 24-72-703
contains general provisions that apply to “sealing of arrest and
criminal justice records pursuant to sections 24-72-704 to 24-72-
710[, C.R.S. 2022].” § 24-72-703(1). Sections 24-72-704 through
24-72-710 apply to sealing of various categories of criminal records.
¶ 17 The General Assembly amended the criminal record-sealing
statutes in 2019 and added subsection (11). Ch. 295, sec. 1, § 24-
9
72-703(11), 2019 Colo. Sess. Laws 2737-38. As relevant here,
section 24-72-703(11) provides: “A defendant shall not be required
to waive his or her right to file a motion to seal pursuant to the
provisions of this section as a condition of a plea agreement in any
case.” This provision became effective on August 2, 2019. Sec. 8,
2019 Colo. Sess. Laws at 2748.
¶ 18 Additionally, section 24-72-706(1)(b)(III) provides:
If the offense is a class 4, class 5, or class 6
felony, a level 3 or level 4 drug felony except a
level 4 drug felony for a conviction pursuant to
section 18-18-403.5(2.5), or a class 1
misdemeanor, the motion [for the sealing of
the conviction records] may be filed three years
after the later of the date of the final
disposition of all criminal proceedings against
the defendant or the release of the defendant
from supervision concerning a criminal
conviction.
“Motions filed pursuant to this section are procedural in nature,
and sealing pursuant to this section applies retroactively to all
eligible cases.” § 24-72-706(3).
B. Analysis
¶ 19 Di Asio does not dispute that he waived his right to seal his
record as part of the plea agreement. Nor do the parties disagree
that Di Asio’s class 5 felony conviction is the type of conviction
10
eligible for sealing. The question is whether the 2019 amendment
to section 24-72-703(11), which prohibits requiring a defendant to
waive sealing as part of a plea agreement, applies retroactively to
invalidate Di Asio’s waiver. We conclude that it does not for four
reasons.
¶ 20 First, we observe that section 24-72-703(11) contains no
retroactivity language. Thus, the statute’s plain language does not
support its retroactive application.
¶ 21 Second, we reject Di Asio’s argument that the phrase “in any
case” in section 24-72-703(11) reflects the General Assembly’s
intent to apply the statute retroactively. While we agree that “any”
is synonymous with “all” and “each and every,” we disagree that it
has any temporal meaning or reflects an intent to apply
retroactively. And, contrary to Di Asio’s argument, the General
Assembly clearly expressed its intent that the provision apply only
prospectively by providing an effective date of August 2, 2019.
See People v Stellabotte, 2018 CO 66, ¶ 3; People v. Hamm, 2019
COA 90, ¶ 27 (“Statutes that, by their terms, are effective ‘on or
after’ a specified date do not apply retroactively.”). We must give
11
effect to all parts of the statute, including its effective date. People
v. Harrison, 2020 CO 57, ¶ 17.
¶ 22 Third, the General Assembly specifically included retroactivity
language in sections 24-72-705 and -706, while excluding it from
section 24-72-703. See § 24-72-705(1)(c) (permitting retroactive
sealing of all eligible cases where a case has been completely
dismissed or a defendant has been acquitted of all counts in a state
or a municipal criminal case); § 24-72-706(3) (permitting retroactive
sealing of criminal conviction records in all eligible cases). This
shows that the General Assembly considered retroactivity when
enacting the 2019 amendments and that it could have included
similar language in section 24-72-703 had that been its intent.
People v. J.J.H., 17 P.3d 159, 162 (Colo. 2001) (“Courts should not
presume that the legislature used language ‘idly and with no intent
that meaning should be given to its language.’” (quoting McMillin v.
State, 158 Colo. 183, 188, 405 P.2d 672, 674 (1965))). Moreover,
we note that the General Assembly adopted the three sections as
part of the same bill, H.B. 19-1275, and we are required to interpret
“a provision existing as part of a comprehensive statutory scheme”
in harmony with the whole. Frank M. Hall & Co., 125 P.3d at 448.
12
¶ 23 When considering the statute as a whole, giving all parts of the
statute a “consistent, harmonious, and sensible effect,” Dennis,
¶ 12, we conclude the General Assembly intended that section 24-
72-703(11) apply prospectively only.
¶ 24 Furthermore, we are not convinced that applying section 24-
72-703(11) prospectively only contravenes a public policy against
requiring defendants to waive their right to seal their conviction
records as part of a plea agreement. Indeed, we agree with Di Asio
that the General Assembly is the final authority concerning the
state’s public policy. But, for the reasons described above, the
General Assembly chose to institute the public policy reflected in
section 24-72-703(11) prospectively only.
¶ 25 Finally, and relatedly, the enactment of section 13-3-117,
C.R.S. 2022, further supports our conclusion that subsection
703(11) only applies prospectively. Under section 13-3-117, the
state court administrator is required to compile a list of felony drug
convictions that are eligible for sealing pursuant to sections 24-72-
703 and 24-72-706 and to seal the records of those convictions
automatically in 2024. Section 13-3-117(3)(a) permits the district
attorney to object to the inclusion of a conviction where “a condition
13
of the plea was that the defendant agreed to not have the conviction
record sealed.” This ability to object to sealing convictions when
sealing was waived as part of a plea agreement is consistent with
our conclusion that the 2019 amendments did not affect waivers
occurring before the effective date of section 24-72-703(11) (August
2, 2019) and that the General Assembly intended that subsection
703(11) only apply prospectively.
¶ 26 Accordingly, we conclude that section 24-72-703(11) does not
apply retroactively to invalidate Di Asio’s waiver of his right to seal
his conviction record for a plea agreement entered in 2018.
III. Conclusion
¶ 27 The order is affirmed.
JUDGE LIPINSKY and JUDGE LUM concur.
14