State v. Turner

2021 VT 30

State of Vermont v. Clayton Turner

No. 2020-143

Supreme Court of Vermont

December Term, 2020

April 30, 2021

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.

On Appeal from Superior Court, Windham Unit, Criminal Division

John R. Treadwell, J.

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton and Cohen, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

¶ 1. COHEN, J. Petitioner appeals the criminal division's order denying his petitions seeking expungement of two prior escape convictions. We conclude that expungement of petitioner's prior escape convictions was not available to him under the governing law; accordingly, we affirm the criminal division's decision.

¶ 2. Petitioner was convicted of absconding from furlough twice, once in November 2001 and once in January 2009. In June 2011, petitioner was charged with second-degree aggravated domestic assault, with a habitual-offender enhancement that was based in part on the two earlier absconding-from-furlough convictions. Petitioner left the state and was not arrested on the domestic-assault charge until November 2018. He was arraigned and held without bail under 13 V.S.A. § 7553, which allows defendants who have been charged with an offense punishable by life imprisonment to be held without bail when the evidence of guilt is great. See State v. Turner, No. 2019-008, 2018 WL 7200669 (Vt. Jan. 23, 2019) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo19-008.bail_.pdf [https://perma.cc/23ZU-K8FJ].

¶ 3. In December 2019, petitioner filed petitions to expunge the two absconding-from-furlough convictions, arguing, in relevant part, that he was entitled to expungement of those convictions under the terms of Vermont's expungement statute because the Legislature had recently decriminalized absconding from furlough. See 13 V.S.A. § 7602(a)(1)(B) (providing that person may file expungement petition 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"). Granting the petitions would have the effect of removing the habitual-offender enhancement to the domestic-assault charge—and thus petitioner would not be subject to a potential life sentence and could not be held without bail under § 7553.

¶ 4. In March 2020, the criminal division denied the petitions, reasoning that although absconding from furlough is no longer a criminal offense, it remains prohibited by law, as evidenced by the fact that a person who absconds from furlough can be arrested, returned to a correctional facility, and deprived of good-time credit for the abscondment period. 28 V.S.A. § 808(d). Petitioner appeals that decision, arguing that the plain language of the expungement and escape statutes permits expungement of his prior absconding-from-furlough convictions. Further, he asserts that he has met all the conditions for granting expungement, and he asks this Court to determine in the first instance that expungement of his escape convictions is in the interests of justice.

¶ 5. The principal argument that petitioner raises identifies a legal issue of statutory interpretation that we review without deference to the criminal division. See State v. Eldredge,2006 VT 80, ¶ 7, 180 Vt. 278, 910 A.2d 816 ("Whether a trial court properly interprets a statute is a question of law which we review de novo."). "Our goal in interpreting a statute is to identify and implement the Legislature's intent." State v. Hinton, 2020 VT 68, ¶ 11, ___ Vt. ___, 239 A.3d 246.

¶ 6. Relevant to petitioner's prior convictions, the escape statue prohibits a person from "fail[ing] to return from furlough to the correctional facility at the specified time, or visit[ing] other than the specified place," as ordered. 13 V.S.A. § 1501(b)(1)(B). In 2019, the Legislature added the following statutory provision to the escape statute, as § 1501(b)(3): "It shall not be a violation of subdivision (1)(A), (1)(B), or (1)(C) of this subsection (b) if the person is on furlough status pursuant to" specified Title 28 subsections. 2019, No. 77, § 10. In the same Act, the Legislature added 28 V.S.A. § 808e, containing the following language:

The Commissioner of Corrections may issue a warrant for the arrest of a person who has absconded from furlough status in violation of [specified Title 28 subsections], requiring the person to be returned to a correctional facility. A person for whom an arrest warrant is issued pursuant to this section shall not earn credit toward service of his or her sentence for any days that the warrant is outstanding.

Id. § 11.¹ In addition, 28 V.S.A. § 808(d), which remained in effect following the enactment of Act 77, permits the warrantless arrest and return to a correctional facility of person believed to be in violation of furlough conditions.

¶ 7. The critical language in the expungement statute at the center of the parties' dispute is § 7602(a)(1)(B) of Title 13, which was added in 2015 along with several other provisions substantially amending and expanding the expungement statute. 2015, No. 36, § 2. Pursuant to that provision, a person "may file" for expungement 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." 13 V.S.A. § 7602(a)(1)(B) (emphasis added).

¶ 8. The parties agree that at the time petitioner filed his petitions, the conduct underlying his prior escape convictions was decriminalized by Act 77 but continued to be prohibited by law, as evidenced by the fact that persons absconding from furlough were still subject to arrest and reincarceration at a correctional facility, resulting in loss of personal liberty. The issue is whether the highlighted language in § 7602(a)(1)(B)—"no longer prohibited by law or designated as a criminal offense"—made expungement available, during the eighteen-month period between the effective dates of Act 77 and Act 148, for persons having previously committed the offense of absconding from furlough. In petitioner's view, the answer is yes because Act 77 decriminalized absconding from furlough, and § 7602(a)(1)(B) permits expungement of offenses for which the underlying conduct has been either legalized or decriminalized. In the State's view, the answer is no because § 7602(a)(1)(B) permits expungement of offenses for which the underlying conduct is neither illegal nor a criminal offense.

¶ 9. At the outset, we acknowledge that the disputed language is not a model of clarity and could be read to support either petitioner's or the State's position. See State v. Brunner, 2014 VT 62, ¶ 18, 196 Vt. 571, 99 A.3d 1019 ("Ambiguity exists where a statute is capable of more than one reasonable interpretation, each vying to define a term to the exclusion of other potentialinterpretations."). If petitioner's interpretation is correct, the Legislature could have simply stated that expungement is available for any conduct that is no longer a criminal offense. As the trial court noted, limiting the language to decriminalized offenses would read the phrase "prohibited by law" out of the statute and make it superfluous. See State v. Beattie, 157 Vt. 162, 165, 596 A.2d 919, 921 (1991) (citing case law and treatise for proposition that courts will decline to interpret statute so as to render significant parts of it pure surplusage). Petitioner's disjunctive reading of the disputed language to mean that satisfaction of either condition is sufficient to grant expungement even if the other condition has not been satisfied makes no sense because conduct not prohibited by law cannot be designated a crime. On the other hand, by the same token, if the Legislature intended to permit expungement for conduct that was no longer prohibited by law and no longer designated as a criminal offense, as the State posits, it could have simply stated that expungement would be made available for any conduct that is no longer prohibited by law.

¶ 10. We presume that the Legislature intended the plain, ordinary meaning of statutory words, which, if undefined in the statute, we may discern "by consulting dictionary definitions." Toensing v. Attorney Gen. of Vt., 2019 VT 30, ¶ 7, 210 Vt. 74, 212 A.3d 180 (quotation omitted). Although the word "or" is most often used in the disjunctive, it can also be used in the conjunctive, meaning "and." See Viskup v. Viskup, 150 Vt. 208, 211 n.3, 552 A.2d 400, 402 n.3 (1988) (citing Morse v. Tracy, 91 Vt. 476, 478, 100 A. 923, 924 (1917) for proposition that "disjunctive clause may be taken in conjunctive sense when it is obvious such was the intention of the Legislature from an examination of the act as a whole"); see also United States v. Fisk, 70 U.S. 445, 447 (1865) (in ascertaining legislative intent, "courts are often compelled to construe 'or' as meaning 'and,' and again 'and' as meaning 'or' "); United States v. Harris, 838 F.3d 98, 105 (2d. Cir. 2016) (stating that disjunctive use of word "or" is not absolute, particularly where context dictates otherwise).

¶ 11. For example, in Morse, a statute modifying the manner of drawing juries was, by its terms, not applicable to jurors "chosen, drawn or summoned prior to the day on which this act takes effect." 91 Vt. at 477, 100 A. at 923 (emphasis added in Morse). Because the disjunctive use of the word "or" would nullify two of the modifying words, this Court read the clause to mean...