People v. C.H.

541 P.3d 29

2023 COA 86

2023 COA 86

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.C.H., Defendant-Appellant.

Court of Appeals No. 21CA1136

Colorado Court of Appeals, Div. VI.

Announced September 28, 2023

Rehearing Denied November 9, 2023

Boulder County District Court No. 07CR1754, Honorable Patrick D. Butler, Judge, Honorable Norma A. Sierra, Judge

Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Beck Payne Frank & Piper P.C., Howard J. Beck, Adrian P. Tilley, Aurora, Colorado, for Defendant-Appellant

Opinion by JUDGE GOMEZ

¶ 1 Defendant, C.H., appeals the trial court’s denial of her motion to seal her criminal records in this case.¹

¶ 2 A portion of C.H.’s motion is governed by provisions of the sealing statutes that the General Assembly substantially modified in 2019. Those legislative changes "vastly expand[ed] the ability to seal criminal convictions at the misdemeanor and low- to midfelony levels." Gordon P. Gallagher, Sealing Criminal History Records for Convictions Under C.R.S. §§ 24-72-701 et seq., 49 Colo. Law. 32, 33 (Nov. 2020); see also Ch. 295, 2019 Colo. Sess. Laws 2732. The impact of sealing a defendant’s records is significant: the defendant isn’t required to disclose the records when seeking employment, housing, or benefits; and criminal justice agencies will respond to inquiries indicating that no such records exist. See § 24-72-703(2)(b), (d)(I), C.R.S. 2023; D.W.M. v. Dist. Ct., 751 P.2d 74, 75 (Colo. App. 1988).

¶ 3 One of the 2019 legislative changes expanded the types of convictions for which records may be sealed. Section 24-72-706(1), C.R.S. 2023, now broadly provides for the sealing of conviction records so long as sufficient time has passed since the conviction; certain criteria are satisfied; and, where required, the court makes a finding that the harm to the defendant’s privacy or the dangers of unwarranted, adverse consequences to the defendant outweigh the public interest in retaining public access to the records. However, the statute excepts from these provisions records pertaining to several types of offenses, including "a criminal conviction for which the underlying factual basis involves domestic violence as defined in section 18-6-800.3," C.R.S. 2023. § 24-72-706(2)(a)(VI)(E). Such records can be sealed only if the offense was a misdemeanor and only if the district attorney consents to the sealing or a court

finds, by clear and convincing evidence, that the [defendant’s] need for sealing of the record is significant and substantial, the passage of time is such that the [defendant] is no longer a threat to public safety, and the public disclosure of the record is no longer necessary to protect or inform the public.

§ 24-72-706(2)(b). These provisions apply retroactively to all eligible cases. § 24-72-706(3).

¶ 4 C.H. sought to seal the records of two offenses from more than a decade earlier—one resulting in a misdemeanor conviction for harassment and the other resulting in a deferred judgment for trespass that was later dismissed. Without directly addressing the trespass deferred judgment, the trial court concluded that the harassment conviction involved domestic violence and therefore was ineligible for sealing. We agree with the trial court that the conviction involved domestic violence and, thus, fell within the exclusion in section 24-72-706(2)(a)(VI)(E). But at that point, the court should’ve applied section 24-72-706(2)(b), which allows the records of otherwise-excluded misdemeanor offenses to be sealed if the court finds that the requisite criteria have been proved by clear and convincing evidence.

¶ 5 We also conclude, interpreting other sections of the sealing statutes, that the records of C.H.’s trespass deferred judgment are not eligible for sealing but that the existence of the deferred judgment doesn’t prevent the records of the harassment conviction from potentially being sealed.

¶ 6 Accordingly, we affirm the trial court’s order to the extent that it denied the request to seal records of the trespass deferred judgment, we reverse the order to the extent that it denied the request to seal records of the harassment conviction, and we remand the case for the trial court to consider and make findings on the request to seal the records of the harassment conviction under the standard set forth in section 24-72-706(2)(b).

I. Factual Background

¶ 7 When she was a college student in the mid-2000s, C.H. was charged with three offenses arising out of an incident in which she broke into her ex-boyfriend’s room, slapped and pushed him several times, and demanded that they talk about their relationship until the ex-boyfriend was able to get away from her. All three offenses were charged as acts of domestic violence.

¶ 8 Pursuant to a plea agreement, C.H. pleaded guilty to harassment (a misdemeanor), she pleaded guilty under a deferred judgment to first degree criminal trespass (a felony), and the third charge was dismissed. The trial court accepted her plea and entered an order "find[ing] that the underlying factual basis in the … case constitutes an act of DOMESTIC VIOLENCE pursuant to [section] 18-6-800.3." After C.H. successfully completed the two-year term of her deferred judgment, the comt dismissed the trespass charge with prejudice.

¶ 9 More than a decade later, in 2021, C.H. filed a motion to seal her criminal records from this case, explaining that she "ha[s] had no similar problems since" the single incident from her college days and that she "find[s] it very difficult even after many years to find employment and would like to get on with [her] life." The district attorney objected to the motion.

¶ 10 The trial court denied C.H.’s motion on the basis that "[t]he misdemeanor charge [for harassment] remained a conviction" after the dismissal of the trespass charge, and both charges had been "charged as Domestic Violence charges." It later denied C.H.’s motion for reconsideration, reasoning that "a conviction remains [on the harassment charge], an offense with an underlying factual basis of domestic violence," and "[s]tatutorily, the Colorado Legislature does not permit the [c]ourts to seal such records of convictions."

¶ 11 On appeal, C.H. contends that the trial court erred by denying her motion to seal and by not holding a hearing on that motion. We first provide some additional statutory background and then turn to her contentions.

II. The Sealing Statutes

¶ 12 The statutes governing the sealing of criminal records are currently located in part 7 of title 24, article 72. Four of those statutes are relevant to this case.

¶ 13 First, section 24-72-701, C.R.S. 2023, provides definitions applicable to all of the sealing statutes. These include a definition of the term "conviction": "a criminal judgment of conviction," with "infractions that constitute civil matters" specifically excluded. § 24-72-701(2.5).²

¶ 14 Second, section 24-72-703 sets forth various general provisions regarding record sealing. Among those provisions is an exclusion providing as follows:

Notwithstanding any provision in this part 7 to the contrary, in regard to any conviction of the defendant resulting from a single case in which the defendant is convicted of more than one offense, records of the conviction may be sealed pursuant to the provisions of this part 7 only if the records of every conviction of the defendant resulting from that case may be sealed pursuant to the provisions of this part 7.

§ 24-72-703(12)(a)(I) (emphasis added).

¶ 15 Third, section 24-72-705, C.R.S. 2023, sets forth provisions for sealing criminal justice records other than convictions. Under this statute, records are sealed automatically when a case is completely dismissed, the defendant is acquitted of all counts in the case, the defendant successfully completes a diversion program after the filing of a criminal case, or, as relevant here, "[t]he defendant completes a deferred judgment and sentence … and all counts are dismissed." § 24-72-705(1)(a)(IV).

¶ 16 And fourth, section 24-72-706 sets forth provisions for sealing criminal conviction records. This includes the provisions recounted above regarding the general standard for sealing conviction records, exclusions for certain types of convictions, and an alternative standard for misdemeanor offenses that fall within the exclusions.

III. Motion to Seal

¶ 17 We now turn to C.H.’s contention that the trial court erred by denying the motion to seal her records relating to the harassment conviction and the trespass deferred judgment.

A. Standard of Review

[1, 2] ¶ 18 We generally review for an abuse of discretion a trial court’s decision whether to seal criminal records. Robertson v. People, 2017 COA 143M, ¶ 9, 410 P.3d 1277. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair or is contrary to law. People v. Toro-Ospina, 2023 COA 45, ¶ 30, 535 P.3d 132.

[3–5] ¶ 19 However, we review questions of statutory interpretation de novo. In re R.C., 2013 COA 77, ¶ 6, 309 P.3d 954. Our primary task in interpreting statutes is to ascertain and give effect to the General Assembly’s intent. People v. Sprinkle, 2021 CO 60, ¶ 22, 489 P.3d 1242. To do so, we start with the language of the statute, giving the statutory words their plain and ordinary meanings and giving consistent, harmonious, and sensible effect to each part of the statute. People v. Burgandine, 2020 COA 142, ¶¶ 6–7, 484 P.3d 739. If the plain language of the statute is clear and unambiguous, we apply it as written. Id. at ¶ 6.

¶ 20 The Harassment Conviction

¶ 21 We first consider the trial court’s denial as it relates to the harassment conviction.

[6] ¶ 22 C.H. initially maintains that subsections (2)(a)(VI)(E) and (2)(b) of section 24-72-706 don’t apply to this conviction because the harassment statute doesn’t refer- ence domestic violence. We disagree. The trial court specifically found, at...