Chief Justice SUTTELL, for the Court.
In these consolidated appeals, the defendants, James Briggs and Anna M. Matthias,
In 2007, defendants first came before this Court on appeal from the denial of their motions for expungement. See State v. Briggs, 934 A.2d 811 (R.I.2007) (hereinafter Briggs I). James Briggs had pled nolo contendere to one count of second-degree robbery; and, on January 20, 1995, he received a five-year deferred sentence. Id. at 813. On September 3, 2003, after completing his deferred sentence, Briggs moved to expunge all records involving his arrest and plea. Id. Anna Matthias had pled nolo contendere to one count of possession of a controlled substance; and, on March 4, 1996, she received a five-year deferred sentence. Id. On September 18, 2003, after completing her deferred sentence, Matthias also moved to expunge the records of her arrest and plea. Id. On May 4, 2004, both motions were denied. Id. at 814. The hearing justice found that the deferred sentences were not automatically expunged, but rather that they were subject to the expungement statutes, G.L. 1956 §§ 12-1.3-2 and 12-1.3-3.
In 2010, the General Assembly passed an act amending § 12-19-19
Section 2 of P.L.2010, chs. 128 and 256 provides that the act "shall take effect upon passage." The expungement statutes, however, have not been amended since Briggs I, save for a provision in § 12-1.3-3 that requires a petitioner to pay a $100 fee. P.L.2009, ch. 68, art. 11, § 1(c).
In August 2010, Briggs and Matthias, as well as a number of others who similarly had completed deferred sentences, filed motions to seal under § 12-19-19(c). It is important to note that defendants requested only that their records be sealed; they did not seek exoneration. Although the then-Attorney General had submitted a letter to the General Assembly supporting passage of the amendments to "bring more flexibility to the deferred sentencing agreement," the state objected to these motions. The hearing justice accepted briefs from the several movants and the state, and heard arguments on November 5, 2010.
To support their motions, defendants argued that they were the "intended recipients of this remedial legislation" and under the language of the amended statute were eligible to have their records sealed; thus there was no issue of retroactivity. The defendants maintained that if the court found that retroactivity was an issue, the 2010 amendments were remedial in nature and appropriate for retroactive application. Finally, defendants argued that the amended statute did not offend the doctrine of separation of powers. The state maintained that the amended statute could not be applied retroactively without clear language indicating an intent to do so, and that, if applied retroactively, the statute would "constitute an impermissible exercise of judicial power by the Legislature" and thus violate the separation-of-powers doctrine.
On November 12, 2010, the hearing justice issued a written "main decision" in one case, State v. Warzycha, 2010 WL 4682605
We review questions of statutory construction and interpretation de novo; "[w]hen the language of the statute is clear and unambiguous, it is our responsibility to give the words of the enactment their plain and ordinary meaning." Mendes v. Factor, 41 A.3d 994, 1002 (R.I.2012) (quoting Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 259 (R.I.2011)). In undertaking this responsibility, we are mindful 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)). This Court repeatedly has held that "statutes will be given prospective application unless otherwise provided." In re Alicia S., 763 A.2d 643, 646 (R.I.2000). Importantly, "[o]nly when the Legislature, by express language or necessary implication, manifests its intent that a statute be given retroactive effect, will the courts apply it retrospectively[.]" Id. at 646-47. Finally, "we 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 of all other sections.'" Mendes, 41 A.3d at 1002 (quoting Generation Realty, LLC, 21 A.3d at 259).
On appeal, defendants raise three issues. First, defendants argue that the hearing justice erred in ruling that the statute should not be applied retroactively. Next, defendants assert that the hearing justice erred in failing to sever the "exoneration" remedy from the "sealing" remedy, thereby avoiding any separation-of-powers issue. Finally, defendants maintain that the hearing justice erred when she "relied upon a sentence in a footnote in Briggs I" to find that exoneration was a prerequisite to the sealing remedy.
In reply, the state argues that the hearing justice was correct in finding that § 12-19-19 should not be applied retroactively because of the absence of clear language or any necessary implication requiring retroactivity, and because the statute creates new substantive rights. Further, the state argues that retroactive application of the statute would violate separation of powers and that exoneration is not severable from sealing as the statute is now written. Finally, the state argues that the hearing justice was correct in holding that the General Assembly cannot require sealing under § 12-19-19(c) without first amending § 12-1-12.
The defendants argue that the language of § 12-19-19, taken as a whole, implies that the General Assembly intended the sealing provision to apply to those who successfully complete a deferred sentence agreement, regardless of when that agreement was entered. This Court consistently has held that "`statutes and their amendments are applied prospectively,' absent `clear, strong language, or by necessary implication that the Legislature intended a statute to have retroactive application * * *.'" Rodrigues v. State, 985 A.2d 311, 318 (R.I.2009) (quoting Ducally v. State, 809 A.2d 472, 474 (R.I.2002)). The defendants concede that the statute "does not contain an explicit legislative direction that it was intended to apply retroactively to deferred sentence agreements entered prior to the amendment's effective date," but they maintain that, read as a whole, § 12-19-19(c) is intended to have retroactive effect. In the absence of "clear, strong language," defendants point to the use of the words "whenever" and "any" within subsection (a) of the statute as signaling the legislative intent to give the statute the broadest application possible.
The state argues that, because the legislation states that it "shall take effect upon passage" and because § 12-19-19(a) is drafted in the present and future tenses, the intention that the statute was to have prospective effect is clear. The state dismisses any importance placed on the words "whenever" and "any," noting that the use of those terms predates the 2010 amendments by more than eighty years. See P.L.1927, ch. 1063, § 1.
Our de novo review of § 12-19-19 reveals no language that would direct or necessarily imply that the General Assembly intended the 2010 amendments to have retroactive effect. On the contrary, this Court previously has held that an act amending a statute stating "[t]his act shall take effect upon passage * * * [i]n the absence of any express language or implicit indication that the statutory amendment should be applied retroactively" indicates an intent toward prospective application only. In re Alicia S., 763 A.2d at 647. See also Rodrigues, 985 A.2d at 318 (stating that the Court had previously held that
Having found neither clear, strong language, nor any necessary implication that the General Assembly intended retroactive application, this Court next examines whether the statute is substantive in nature, or remedial or procedural. See Direct Action for Rights and Equality v. Gannon, 819 A.2d 651, 658 (R.I.2003). "Substantive statutes, which create, define, or regulate substantive legal rights, must be applied prospectively. * * * In contrast, remedial and procedural statutes, which do not impair or increase substantive rights but rather prescribe methods for enforcing such rights, may be construed to operate retroactively." Id. (quoting Pion v. Bess Eaton Donuts Flour Co., 637 A.2d 367, 371 (R.I.1994)).
Here, the hearing justice found that the amended statute "expand[ed] the universe of people who are afforded the right to have their criminal records shielded from the public." We agree and conclude that § 12-19-19(c) creates new substantive rights because, prior to the amendments, the sealing of records was not available to individuals who had committed a crime of violence or who were not first-time offenders, such as defendants in this case. Moreover, § 12-19-19(c) purports to exonerate any person who successfully complies with the terms and conditions of a written deferral agreement "of the charges for which sentence was deferred." Under the expungement regime, a person whose conviction of a crime had been expunged was not required to disclose his or her conviction except in certain enumerated circumstances — for example, the fact of an expunged conviction must be disclosed in applications "for a law enforcement agency position, for admission to the bar of any court, * * * for a teaching certificate, * * * or [to be] the operator or employee of an early childhood education facility * * *." Section 12-1.3-4(a)-(b). Section 12-19-19(c) contains no such limitation as to disclosure and would seemingly make exoneration available to those who are not first-time offenders, as well as those who have committed a crime of violence. We conclude, therefore, that although as a whole, the deferred-sentence statute is remedial in nature, see Briggs I, 934 A.2d at 816-17, the addition of subsection (c) to § 12-19-19 in 2010 was a substantive amendment and thus not entitled to retroactive application.
Alternatively, defendants argue that there is a presumption in favor of retroactivity when a penal law is changed for the benefit of those subject to it. The defendants assert that § 12-19-19 is rehabilitative and where the amendment to a rehabilitative statute is ameliorative, the law favors retroactivity under the "rule of abatement." The state counters that the "rule of abatement" does not apply to the case at bar, noting that "[t]he common-law rule of abatement provides that when the Legislature repeals a statute, a defendant cannot thereafter be convicted under the repealed statute, absent a savings clause." State v. Pereira, 973 A.2d 19, 33 (R.I.2009). We are of the opinion that the amendment to § 12-19-19 does not involve repeal of a criminal statute and thus the rule of abatement is not applicable in this context.
Having determined that the statute should not be applied retroactively, this Court need not reach the question of whether retroactive application would violate the doctrine of separation of powers. In State v. Warzycha, 2010 WL 4682605, incorporated by reference in the lower court's decision in these cases, the hearing justice stated, and we agree, that it was unnecessary to determine whether prospective application would be unconstitutional. Because no defendant who entered a deferred-sentence agreement subsequent to the 2010 amendments to § 12-19-19 will yet have completed his or her five-year deferment, this issue is not yet ripe for review. For the same reasons, we need not reach the question of whether the "exoneration clause" is, as the defendants urge, severable from the "sealing clause."
For the reasons set forth in this opinion, we affirm the judgments of the Superior Court. The record of this case shall be remanded to the Superior Court.
