op21-179.pdf

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2022 VT 40No. 2021-179
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Windham Unit &
Windsor Unit, Criminal Divisions
E.C. June Term, 2022
John R. Treadwell, J. (Windham); Elizabeth D. Mann, J. (Windsor)
Evan Meenan, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
Cabot Teachout of DesMeules, Olmstead & Ostler, Norwich, for Defendant-Appellant.
PRESENT: Reiber, C.J., Eaton, Cohen and Waples, JJ., and Mello, Supr. J., Specially Assigned
¶ 1. REIBER, C.J. In this consolidated appeal, petitioner E.C. challenges two trial
court orders denying his requests to expunge his criminal-history records. We conclude that his
petitions were properly denied under the governing law and therefore affirm but remand for the
Windham criminal division to expunge any of petitioner’s convictions eligible under 2019, No.
167 (Adj. Sess.), § 31.
¶ 2. Petitioner’s criminal-history records include several felony and misdemeanor
convictions, as well as several charges that were dismissed before trial. In 2020, petitioner filed
petitions in the Windham and Windsor criminal divisions seeking to seal or expunge his records,
asserting that relief could be granted under various statutory provisions.
¶ 3. As relevant to this appeal, petitioner sought expungement on two grounds in the
Windham criminal division.1 First, he argued that his dismissed charges should be expunged under
13 V.S.A. § 7603(e)(1)(B), which directs a court to expunge a record “related to the citation or
arrest of a person . . . within 60 days after the final disposition of the case if . . . the charge is
dismissed with prejudice,” unless a party objects in the interests of justice. Petitioner explained
that the three-year statute of limitations had expired for each of his dismissed charges, and that the
dismissals therefore were with prejudice by operation of the statute and thus were eligible for
expungement under § 7603(e)(1)(B).
¶ 4. Second, he argued that his convictions for offenses committed when he was
seventeen years old, including misdemeanor possession of marijuana, should be expunged under
13 V.S.A. § 7602(a)(1)(B), which permits a person to request expungement if they were
“convicted of an offense for which the underlying conduct is no longer prohibited by law or
designated as a criminal offense.” Petitioner noted that the Legislature had amended the
marijuana-possession laws to make possession a civil penalty if it involves less than one ounce of
marijuana by a person between sixteen and twenty-one years old. See 18 V.S.A. § 4230b(a). He
also noted that the Legislature amended the superior court’s jurisdiction to provide that
proceedings against persons under eighteen years of age must be filed as delinquent acts in the
family division and are therefore no longer criminal offenses under the law. See 33 V.S.A. § 5203.
Accordingly, he argued that these offenses are no longer designated as criminal and were therefore
eligible for expungement under 13 V.S.A. § 7602(a)(1)(B). The State filed an objection to
expungement.
¶ 5. The Windham criminal division rejected petitioner’s claims for expungement under
13 V.S.A. § 7603(e)(1)(B) because it concluded that provision did not operate retroactively to
1
Petitioner also sought expungement under 13 V.S.A. § 7602(a)(1)(A) and (c) and sealing
under 33 V.S.A. § 5119(g) in the Windham criminal division. Petitioner does not challenge the
court’s conclusions under these statutes.
2
reach charges dismissed before it took effect. The court also rejected petitioner’s argument that
some of his convictions qualified for expungement under 13 V.S.A. § 7602(a)(1)(B), relying on
State v. Turner, 2021 VT 30, ¶ 13, __ Vt. __, 254 A.3d 204. The court, however, granted
petitioner’s request for sealing in multiple dockets under 33 V.S.A. § 5119.
¶ 6. In the Windsor criminal division, petitioner only sought expungement under 13
V.S.A. § 7603(e)(1)(B), again arguing that his charges dismissed without prejudice were eligible
for expungement because the limitations period had expired. The State filed an objection. Unlike
the Windham criminal division, the Windsor criminal division did not consider whether § 7603(e)
applied retroactively. Instead, it reasoned that § 7603(e) did not apply because petitioner’s charges
were dismissed without prejudice. Even if the dismissals had been with prejudice, the court
explained, the State’s objection would have blocked expungement. Accordingly, the court rejected
the petition.
¶ 7. Petitioner appealed both orders, and we granted the motion to consolidate the
appeals for review. Petitioner also sought to seal the appellate record. The State did not object to
petitioner’s request. A single Justice held a hearing under Vermont Rule for Public Access to
Court Records 9(a). The Court granted the request to seal the record temporarily, pending decision
on the merits of the appeal.
¶ 8. On appeal, petitioner argues that his convictions are eligible for expungement under
13 V.S.A. § 7602(a)(1)(B) notwithstanding our interpretation in Turner because, in his view, there
is clear legislative intent in Title 33 to “treat the juvenile behavior of minors differently from the
criminal acts of adults.” He also argues that the courts misconstrued 13 V.S.A. § 7603(e),
contending that: (1) the statute applies retroactively to reach his dismissals; (2) his dismissals
operated as dismissals with prejudice as a matter of law because the statute of limitations for each
charge has elapsed; and (3) the State cannot unilaterally block a petition for expungement by
objecting.
3
¶ 9. This appeal raises questions of statutory interpretation, which we review de novo.
Turner, 2021 VT 30, ¶ 5. In interpreting a statute, our goal is to “identify and implement the
Legislature’s intent.” State v. Hinton, 2020 VT 68, ¶ 11, 213 Vt. 1, 239 A.3d 246. “We start with
the plain language of the statute, and if the meaning is clear, we will enforce it according to its
terms.” State v. Richland, 2015 VT 126, ¶ 6, 200 Vt. 401, 132 A.3d 702. If the language is
ambiguous, “we ascertain legislative intent through consideration of the entire statute, including
its subject matter, effects and consequences, as well as the reason and spirit of the law.” State v.
Berard, 2019 VT 65, ¶ 12, 211 Vt. 39, 220 A.3d 759. We discuss each order in turn.
I. Windham Criminal Division Order
A. 13 V.S.A. § 7602
¶ 10. We first address petitioner’s argument that his convictions are eligible for
expungement under 13 V.S.A. § 7602(a)(1)(B). Section 7602(a)(1)(B) permits a person to file a
petition requesting expungement of a conviction if “the person was convicted of an offense for
which the underlying conduct is no longer prohibited by law or designated as a criminal offense.”
¶ 11. In Turner, this Court interpreted § 7602(a)(1)(B) to permit expungement of an
offense where the underlying conduct has been both legalized and decriminalized. 2021 VT
30, ¶ 13. In so holding, we acknowledged that the statutory language was ambiguous because both
the defendant and the State urged interpretations that rendered one of the clauses superfluous.
Id. ¶ 9. Accordingly, we turned to the plain language of the statute and reasoned that while “or”
commonly means “one thing or another,” “it is also used after a negative verb to mean one thing
and also not another.” Id. ¶ 12 (quotation omitted). Because the ambiguous clauses in
§ 7602(a)(1)(B) followed the negative phrase “no longer,” we concluded that the statute only
permits expungement “when the underlying conduct is both no longer prohibited by law and no
longer designated as a criminal offense.” Id. ¶ 13.
4
¶ 12. Petitioner argues that when applied in the juvenile context, § 7602(a)(1)(B) is no
longer ambiguous because the provisions of Title 33 governing juvenile proceedings
unambiguously assert that the conduct of minors should not result in criminal records that carry
into adulthood. See, e.g., 33 V.S.A. § 5101(a)(2) (providing that juvenile proceedings shall be
construed in accordance with purpose of “remov[ing] from children committing delinquent acts
the taint of criminality and the consequences of criminal behavior”); id. § 5101a(a) (finding and
declaring as public policy that “an effective juvenile justice system . . . when appropriate, shields
youths from the adverse impact of a criminal record”). He argues that the juvenile statutes have
been amended to provide that an offense committed by a child between the ages of fourteen and
seventeen is to be adjudicated by the family division as a delinquent act, id. § 5103(a), and any
finding of delinquency “shall not . . . be deemed a conviction of a crime,” id. § 5202(a)(1)(A). In
essence, he argues that when the conduct underlying a criminal conviction involved the act of a
minor, § 7602(a)(1)(B) must be construed in light of the juvenile provisions in Title 33.
¶ 13. Our holding in Turner forecloses this outcome. Although petitioner’s conduct
when he was a minor would now be considered a delinquent act and therefore no longer criminal,
delinquent acts are still prohibited by law and are adjudicated by the family division. See 33
V.S.A. § 5102(9) (defining “delinquent act” as “an act designated a crime under the laws of this
State, or of another state if the act occurred in another state, or under federal law); id. § 5103(a)
(vesting jurisdiction over delinquent children to family division). Because delinquent acts are
prohibited by law, petitioner’s convictions are not eligible for expungement under § 7602(a)(1)(B).
See Turner, 2021 VT 30, ¶ 13.
¶ 14. Nothing in § 7602(a)(1)(B) indicates that its terms apply differently in the context
of a conviction for an offense committed when the person was a minor. Indeed, though the
Legislature declared that an effective juvenile-justice system “shields youths from the adverse
impact of a criminal record,” it cabined that policy to “when appropriate.” 33 V.S.A. § 5101a(a).
5
Nor is there any specific provision providing for expungement in the juvenile-proceedings chapter
that supersedes § 7602(a)(1)(B). See id. § 5101(b) (providing that juvenile statutes supersede
inconsistent criminal provisions). Accordingly, nothing in Title 33 is inconsistent with our
conclusion that expungement under § 7602(a)(1)(B) is only available when the conduct underlying
the offense has been legalized and decriminalized. Absent any language in § 7602 indicating that
its terms should apply differently to offenses committed by minors, or any superseding provision
in Title 33, we cannot conclude that § 7602(a)(1)(B) applies differently in the context of offenses
committed by a minor.
¶ 15. Petitioner maintains that this interpretation creates an absurd result. He notes that
while the juvenile statutes provide for sealing of juvenile records, see 33 V.S.A. § 5119, and for
expungement of youthful-offender records, see id. § 5287(d), the juvenile statutes do not provide
a mechanism for expungement of juvenile-offense records. He further notes that the Legislature
has “attempted to fill this hole” by providing for expungement of convictions of persons who were
eighteen to twenty-one years old. See 13 V.S.A. § 7609(a). Petitioner explains that his convictions
do not qualify for expungement under § 7609 because he was seventeen at the time he committed
the offenses, and he argues that it would be absurd if he could expunge a conviction from when he
was eighteen years old but not a similar conviction from when he was seventeen. He maintains
that if expungement under § 7602(a)(1)(B) applied to his convictions, the law would “provide
equal relief to youths across the adolescent age spectrum.”
¶ 16. This argument does not aid petitioner because § 7609 is akin to § 7602(a)(1)(A), as
both provisions only permit expungement of qualifying crimes. See 13 V.S.A. § 7601(4) (defining
“qualifying crime”). Section 7609(a) directs the court to expunge “the record of the criminal
proceedings for an individual who was 18-21 years of age at the time the individual committed a
qualifying crime” within thirty days after the person successfully completes the terms and
conditions of the sentence, unless the court finds good cause not to expunge the record. By
6
contrast, § 7602(a)(1)(A)—which is not age-restricted—permits a person to petition for
expungement of a qualifying crime. The statute lays out several additional conditions that any
petition filed under § 7602(a) must meet for the court to grant expungement. See id. § 7602(b)(1),
(c)(1). The different procedure laid out in § 7609(a) reflects the Legislature’s judgment that
qualifying crimes committed by young adults should be relatively easier to expunge. As relevant
to this appeal, petitioner sought expungement under § 7602(a)(1)(B) on the basis that the offenses
committed while he was a minor are no longer criminal, not under § 7602(a)(1)(A) on the basis
that his offenses are qualifying crimes. Thus, his argument that § 7602(a)(1)(B) should create a
coherent scheme with § 7609 is unavailing.
B. 13 V.S.A. § 7603(e)
¶ 17. We turn next to petitioner’s argument that his dismissed charges are eligible for
expungement under § 7603(e)(1) because that statute applies retroactively. We begin by
summarizing the enactment of § 7603 and its subsequent amendments.
¶ 18. Section 7603 was enacted in 2012. 2011, No. 131 (Adj. Sess.), § 1. It generally
provided for expungement or sealing of a criminal-history record related to a citation or arrest for
a qualifying crime that did not result in a conviction. In relevant part, the statute permitted a person
“who was cited or arrested for a qualifying crime” to file a petition seeking expungement of a
record if the charge was dismissed before trial with prejudice, or without prejudice and the statute
of limitations had expired. Id.
¶ 19. In 2018, the Legislature significantly amended § 7603. See 2017, No. 178 (Adj.
Sess.), § 2. The 2018 amendment removed the language limiting expungement under this section
to charges of qualifying crimes, making any charge eligible. Additionally, the amended language
created triggering events after which the court was directed to automatically seal or expunge the
record, rather than requiring a person to file a petition. See State v. A.P., 2021 VT 90, ¶ 19, __ Vt.
__, 268 A.3d 58 (recognizing that § 7603(e) provides mechanism for automatic expungement).
7
The amended language provided, in relevant part: “Unless either party objects in the interest of
justice, the court shall issue an order expunging a criminal history record related to the citation or
arrest of a person . . . not more than 45 days after . . . dismissal if the charge is dismissed with
prejudice before trial.” 2017, No. 178 (Adj. Sess.), § 2.
¶ 20. In 2019, the Legislature again amended § 7603 to alter the period of time in which
the court is directed to expunge a record. See 2019, No. 32, § 4. In current form, the statute
provides: “Unless either party objects in the interests of justice, the court shall issue an order
expunging a criminal history record related to the citation or arrest of a person . . . within 60 days
after final disposition of the case if . . . the charge is dismissed with prejudice.” 13 V.S.A.
§ 7603(e)(1)(B).
¶ 21. The question presented in this appeal is whether § 7603(e)(1) applies retroactively
to dismissals that occurred before enactment of the amendment codifying this language. “Vermont
statutory law and case law normally prohibit retroactive application of new and amended statutes.”
Agency of Nat. Res. v. Towns, 173 Vt. 552, 555, 790 A.2d 450, 455 (2001) (mem.). Pursuant to
1 V.S.A. § 214(b)(1) and (2), a statutory amendment shall not affect “the operation of the act or
provision prior to the effective date of the amendment,” or “any right, privilege, obligation, or
liability acquired, accrued, or incurred prior to the effective date of the amendment.” 2 However,
“there is an exception for statutes that are solely procedural or are remedial in nature.” Smiley v.
State, 2015 VT 42, ¶ 17, 198 Vt. 529, 117 A.3d 441 (quotation omitted). Such statutes may apply
retroactively unless there is clear language “manifesting a contrary intent.” Id. (quoting 2 N.
Singer & J. Singer, Statutes and Statutory Construction, § 41.4, at 431-32 (7th ed. 2009)).
2
Petitioner argues that 1 V.S.A. § 214 does not apply, contending that Act 178 created a
new right of expungement, rather than amending or repealing a statute. We disagree. The statutory
right to expungement in 13 V.S.A. § 7603 was enacted by Act 131 in 2012. Act 178 amended
§ 7603, so 1 V.S.A. § 214 governs retroactivity. The parties also dispute whether 1 V.S.A. § 213
applies. Section 213, however, “applies only to new enactments and not to amendments, which
are governed by 1 V.S.A. § 214.” Sanz v. Douglas Collins Constr., 2006 VT 102, ¶ 14, 180 Vt.
619, 910 A.2d 914 (mem.).
8
¶ 22. Assuming without deciding that § 7603 is a remedial statute or that the 2018 and
2019 amendments are procedural, the plain language in subsection (e)(1) is inconsistent with
retroactive application. Section 7603(e)(1) directs the court to expunge an eligible record “within
60 days after” dismissal with prejudice or acquittal. By providing that the court must expunge a
record within a specific time after a triggering event occurs, the plain language is inherently
forward looking. Under this provision, there is no clear way for a court to comply with this time
limit to expunge a charge that was dismissed or acquitted before the effective date of the
amendment. Accordingly, we conclude that § 7603(e)(1) does not apply retroactively to reach
cases that resulted in acquittal or dismissal before the statutory amendment took effect.3
¶ 23. Petitioner contends that the purpose of the expungement statute is to reach past
charges that have been acquitted or dismissed, so it would be absurd to conclude that the statute
does not apply retroactively. Petitioner further suggests that, as the result of inartful drafting, there
are several statutory provisions that are “not congruent if read too narrowly.” He notes that
§ 7603(e)(1) does not authorize a person to file a petition to seek expungement and does not require
the court to provide notice of intent to expunge, as compared to other provisions. Cf. 13 V.S.A.
§ 7603(g) (permitting person to file petition requesting sealing or expungement); id. § 7603(h)
(requiring court to provide thirty-days’ notice to State of intent to expunge record sealed before
July 1, 2018). He argues that, read in context, the Legislature must have contemplated a
mechanism for petition and notice under § 7603(e) even though it did not expressly provide one.
By the same token, he argues that § 7603(e) authorizes the court to retroactively expunge cases
that resulted in dismissal or acquittal prior to the amendment’s effective date, even though the
statute only expressly provides for prospective application.
3
Petitioner argues that a strict interpretation of § 7603(e)(1) would result in a de facto
sixty-day statute of limitations on expungement for eligible cases. In concluding that this provision
does not apply retroactively, we make no judgment regarding to the prospective application of the
sixty-day period.
9
¶ 24. When read in isolation, we acknowledge that the language in subsection (e) may
appear to create an absurd result. By their nature, expungement laws are intended to reach prior
criminal-history records and relieve individuals from the stigma those records carry. See State v.
Arellano, 801 S.W.2d 128, 132 (Tx. Crim. App. 1990) (concluding that statute was intended to
expunge records of wrongful arrests and subsequent indictments to ensure individuals were not
“burdened with an arrest record for the rest of their lives,” and was therefore remedial and applied
retroactively).
¶ 25. However, when read in context with the rest of § 7603, it is clear that the Legislature
created a scheme that reaches records of cases that resulted in dismissal or acquittal before the
amendment took effect. See Berard, 2019 VT 65, ¶ 12 (explaining that we construe statutory
provisions in context of entire statute as part of unified system). The path for such records is
through § 7603(g), which provides that a person may file a petition to expunge a criminal-history
record related to citation or arrest “at any time,” and directs the court to grant the petition if the
parties stipulate to expungement; if the State objects, the court may expunge the records if it finds
that expungement serves the interest of justice. We have explained that this provision is not time
limited, and its reach is coextensive with the records eligible for expungement under subsection
(e). State v. A.P., 2021 VT 90, ¶ 16.
¶ 26. Thus, we reject petitioner’s argument that prospective application of § 7603(e)(1)
renders the statute incoherent. When § 7603 is read as a whole, the two provisions reach charges
from two distinct time frames: subsection (e) applies to records from charges resulting in acquittal
or dismissal after the amendment took effect, while subsection (g) reaches charges resulting in
acquittal or dismissal that occurred before the amendment took effect. The differing processes set
forth in these provisions underscores this conclusion. Section 7603(e)(1) directs the court to act
automatically without requiring a petition to be filed, whereas § 7603(g) requires the person to file
a petition. This makes sense: when applied prospectively, the court, the defendant, and the State
10
are present for the triggering event and have notice that the sixty-day time frame for expungement
has begun, so it is not necessary for a petition to be filed.4 It follows that records of charges
dismissed before the 2018 amendment took effect may only be expunged upon petition under
§ 7603(g), as the petition gives the court and the State notice that expungement is sought and
allows the State to stipulate or to object, in which case the court must determine whether
expungement serves the interests of justice. This process is consistent with retroactive application
and permits a court to expunge cases that resulted in dismissal with prejudice or acquittal prior to
the amendment’s effective date.
¶ 27. In sum, we conclude that the Windham criminal division correctly determined that
petitioner’s convictions were ineligible for expungement under 13 V.S.A. § 7602(a)(1)(B) and that
his dismissed charges were ineligible for expungement under 13 V.S.A. § 7603(e)(1)(B).
Accordingly, we affirm the Windham court’s order.
II. Windsor Criminal Division Order
¶ 28. We thus turn to the order of the Windsor criminal division. In this petition,
petitioner only sought expungement of dismissed charges pursuant to 13 V.S.A. § 7603(e)(1)(B).
The court held that a dismissed charge is not eligible for expungement under § 7603(e)(1)(B) if
the charge was dismissed without prejudice, even if the limitations period expired, because that
subsection only authorizes expungement of charges dismissed with prejudice. The court further
reasoned that even if petitioner’s charges had been dismissed with prejudice, expungement could
not be granted under § 7603(e)(1)(B) because the State filed an objection. We conclude that
§ 7603(e)(1)(B) only permits expungement of charges dismissed with prejudice, and further hold
4
This interpretation should not be construed to preclude a person from filing a petition
requesting expungement under § 7603(e). We read § 7603(e)(2) in harmony with § 7603(g) to
specify that if a charge qualifies for expungement under § 7603(e)(1) and the defendant and the
State stipulate to expungement, the court shall expunge the record without the need to determine
that expungement serves the interests of justice.
11
that the State cannot unilaterally block expungement by filing an objection. We discuss each issue
in turn.
A. Expiration of Limitations Period
¶ 29. Petitioner argues that charges dismissed without prejudice should become eligible
for expungement under § 7603(e)(1) because once the limitations period of the offense expires,
the dismissal operates as a dismissal with prejudice.
¶ 30. Under Vermont Rule of Criminal Procedure 48(a), the State may dismiss charges
before trial. If the charge is dismissed with prejudice, the State cannot bring the charges again
because dismissal with prejudice operates as an adjudication on the merits. See Dismissal with
Prejudice, Black’s Law Dictionary (11th ed. 2019). By contrast, if a charge is dismissed without
prejudice, the State can refile the charges, but only within the limitations period of the offense.
See Dismissal without Prejudice, Black’s Law Dictionary (11th ed. 2019). Therefore, “a dismissal
without prejudice can have the practical effect of a dismissal with prejudice if the statute of
limitations has expired.” AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs, 552 F.3d
1233, 1236 (10th Cir. 2009). In both situations, the State cannot refile the charges.
¶ 31. Nevertheless, we cannot agree that § 7603(e) permits expungement of charges
dismissed without prejudice after the limitations period expires. When read as a whole, § 7603
plainly differentiates between dismissals with and without prejudice. The statute provides that
charges dismissed without prejudice are to be sealed by the court within sixty days after dismissal,
unless either party objects. 13 V.S.A. § 7603(a)(1)(B). Charges dismissed with prejudice, by
contrast, are to be expunged by the court within sixty days after dismissal, unless either party
objects. Id. § 7603(e)(1)(B). Records that are sealed under subsection (a) are to be expunged by
the court eight years after they are sealed, unless either party objects. Id. § 7603(f). Thus, § 7603
provides that the records of a charge dismissed without prejudice are to be sealed within sixty days
after dismissal and the sealed records are to be expunged eight years later, absent an objection in
12
the interests of justice. Had the Legislature intended for charges dismissed without prejudice to
be eligible for expungement after the limitations period expired, it would have said so rather than
setting an eight-year period. We presume that the Legislature used this language advisedly and
intentionally distinguished between the two types of dismissals. See Richland, 2015 VT 126, ¶ 6
(“[W]e presume that all language in a statute was drafted advisedly, and that the plain ordinary
meaning of the language used was intended.” (quotation omitted)).
¶ 32. To the extent that the operation of the limitations period creates ambiguity, the
legislative history of § 7603 reveals that the Legislature removed language allowing charges
dismissed without prejudice to be expunged after the limitations period expires. In the 2018
amendment to § 7603, the Legislature enumerated certain events that triggered automatic sealing
in subsection (a) and automatic expungement in subsection (e). Subsection (f) then provided for
automatic expungement of a record sealed under subsection (a) “after the statute of limitations has
expired.” 2017, No. 178 (Adj. Sess.), § 2. In 2019, the Legislature again amended subsection (f),
replacing the statute-of-limitations period with the eight-year period currently in force. 2019, No.
32, § 4. This change reflects the Legislature’s intent to automate and align the expungement
process for any charge that resulted in acquittal or dismissal rather than conviction. Depending on
the offense, a charge may carry a statute of limitations ranging from three to forty years, or it may
have no limitations period at all. See 13 V.S.A. § 4501 (listing limitations periods for various
offenses). The 2019 amendment thus reflects the Legislature’s judgment that eight years is an
appropriate period for expungement of a charge that was dismissed without prejudice, regardless
of the offense.
¶ 33. Given that the former version of the statute by its plain terms provided for
expungement of charges dismissed without prejudice after the limitations period expired, the 2019
amendment makes plain that the Legislature intended to replace the limitations period with an
eight-year period. Accordingly, both the plain language of § 7603 and its legislative history bely
13
petitioner’s argument that a charge dismissed without prejudice is eligible for expungement under
§ 7603(e)(1) after the limitations period expires. Because petitioner’s charges were dismissed
without prejudice, the trial court properly rejected his claim for expungement under § 7603(e)(1).
B. Effect of Objection
¶ 34. Petitioner argues that the court erred by concluding that an objection can
unilaterally block expungement and contends that the court should instead determine whether
expungement serves the interests of justice. The State maintains that the plain language of
§ 7603(e) does not require the court, upon an objection by the State, to make a finding that
expungement is in the interest of justice and argues that we should not imply one.
¶ 35. The statute, however, expressly requires the court to make such a finding when a
party objects to sealing or expungement. Section 7603(b) provides: “If a party objects to sealing
or expunging a record pursuant to this section, the court shall schedule a hearing to determine if
sealing or expunging the record serves the interests of justice.” 13 V.S.A. § 7603(b) (emphasis
added). By its terms, subsection (b) applies to the entirety of § 7603. Thus, reading the section as
a whole, the Legislature’s intent is clear. See Berard, 2019 VT 65, ¶ 12 (explaining that to
determine legislative intent, we examine “not just isolated sentences or phrases, but the whole and
every part of the statute”). If either party objects to expungement under § 7603(e), the court must
hold a hearing under § 7603(b) to determine whether expungement serves the interests of justice.
The State cannot unilaterally block expungement by objecting, and the court erred in so holding.
¶ 36. We nevertheless affirm because the Windsor criminal division correctly denied
petitioner’s request on the basis that dismissals without prejudice are not eligible for expungement
under § 7603(e)(1)(B). Moreover, because we conclude that § 7603(e) does not apply
retroactively, the court’s denial of petitioner’s expungement request may alternatively be affirmed
on this ground. See In re Diverging Diamond Interchange Act 250, 2020 VT 98, ¶ 31, 213 Vt.
480, 247 A.3d 499 (recognizing that Court may affirm for “different reason than relied on by [trial]
14
court”); Gilwee v. Town of Barre, 138 Vt. 109, 111, 412 A.2d 300, 301 (1980) (explaining that
Court may affirm judgment of trial court if there is “any legal ground for justifying the result”).
However, we address the Windsor court’s interpretation of § 7603(e) because the issues are purely
legal, properly preserved, fully briefed, and it is important to provide guidance to the trial courts
regarding the proper application of this statute. See Maier v. Maier, 2021 VT 88, ¶ 24, __ Vt. __,
266 A.3d 778 (exercising discretion to address questions under similar circumstances “in the name
of judicial economy”).
III. Remaining Issues
¶ 37. Ultimately, we affirm both orders denying petitioner’s expungement claims under
13 V.S.A. §§ 7602(a)(1)(B) and 7603(e)(1)(B). We acknowledge, however, that the State appears
to concede that petitioner’s misdemeanor conviction for possession of marijuana is eligible for
expungement under a 2020 act in which the Legislature directed the trial courts to “order the
expungement of criminal history records of violations of 18 V.S.A. § 4230(a)(1) [the marijuana-
possession statute] that occurred prior to January 1, 2021, . . . [to] be completed by the court and
all entities subject to the order not later than January 1, 2022,” regardless of age. 2019, No. 167
(Adj. Sess.), § 31. On the record before us, it is unclear why this conviction was not expunged
during this time frame. For this reason, we remand this case to the Windham criminal division to
expunge any of petitioner’s convictions eligible under Act 167.
¶ 38. Moreover, we are mindful that both the Windham criminal division and this Court
have identified § 7603(g) as a possible path for expungement of some of petitioner’s dismissed
charges. We make no judgment as to the applicability of this provision, as this is a matter for the
trial courts to determine in the first instance. We recognize, however, that the expungement statute
bars petitioner from filing a subsequent petition for two years “unless a shorter duration is
authorized by the court.” 13 V.S.A. § 7605. This provision is intended, in part, to ensure that
“expungement petitions do not overwhelm the courts.” State v. A.P., 2021 VT 90, ¶ 18. Given
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that the expungement statutes are relatively new; that petitioner filed his petitions before we issued
opinions interpreting these statutes in Turner, 2021 VT 30 and State v. A.P., 2021 VT 90; and that
other avenues may be available for expungement or sealing, it appears that these circumstances
may warrant a shorter period for refiling.
¶ 39. Finally, we consider petitioner’s motion to seal the appellate record, which was
granted temporarily pending consideration of the merits of this appeal. In his motion, petitioner
asserted that failure to seal would publicize his legal name and criminal-history record, directly
countering the purpose of expungement. The State did not object to petitioner’s request, provided
that the Vermont Rules for Public Access to Court Records granted this Court authority to seal the
record.
¶ 40. This appeal consolidates several dockets, many of which were sealed by the
Windham criminal division and therefore remain nonpublic. See 13 V.S.A. § 7607 (explaining
effects of sealing). To the extent that other dockets would otherwise be accessible by the public,
and because petitioner may continue to seek expungement as set forth above, we find that good
cause and exceptional circumstances exist to seal the appellate record. For this reason, we grant
petitioner’s request to seal. See V.R.P.A.C.R. 9(a)(1), (5).
This case is remanded to the Windham Superior Court, Criminal Division, to expunge
records eligible under 2019, No. 167 (Adj. Sess.), § 31 as noted in paragraph 37; otherwise, the
decisions are affirmed.
FOR THE COURT:
Chief Justice
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