Fuller v. State

¶1dissenting, with DAVIS, Judge, joining:

¶2While I acknowledge the policy reasons set forth in the majority’s decision, the strict canons of statutory construction compel me to respectfully dissent.

¶3“[T]he meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain ... the sole function of the courts is to enforce it according to its terms.”1 If statutory text is unambiguous, this Court’s role is limited to an application of the literal meaning of the statute’s words.2

¶4The majority correctly begins its interpretation of the term “adult conviction” by looking at the language of the statute itself. The juvenile expungement statute provides in relevant part:

(a) The Family Court may grant a petition for expungement if: (3) A child has no more than 2 adjudications of delinquency involving separate and distinct cases where the offenses for which the *827child was adjudicated delinquent are designated as misdemeanors or violations in Title 4, 7, 11, 16 or 23 ... excepting violent misdemeanors, provided the petitioner has no prior adjudication of delinquency, and 'provided the petitioner has no other subsequent adjudication of delinquency or adult conviction, and provided that the petitioner has no pending criminal charges, and provided that at least 5 years have passed following the date the second adjudication of delinquency was entered in Family Court.3

¶5Here, the legislature has provided a definition of “subsequent adjudication of delinquency or adult conviction” under 10 Del. C. § 1016(6):

For purposes of juvenile expungement, unless the context otherwise requires:

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(6) Subsequent adjudication of delinquency or adult conviction” means an adjudication of delinquency or an adult conviction resulting from the commission of a separate and distinct offense that occurs after a prior adjudication of delinquency.4

¶6Title 10, however, does not define what constitutes an “offense.” The definition for “offense” is found in 11 Del. C. § 233 (definition and classification of offenses).5 Section 233(a) defines “ ‘crime’ or ‘offense’ [as] an act or omission forbidden by a statute of this State and punishable upon conviction by: (1) Imprisonment; or (2) Fine.”6 Section 233(c) of Title 11 explains that “[a]n offense is either a felony, a misdemeanor or a violation.”7

¶7Title 11 also makes clear that violations are a separate category of offenses because in order for an offense to be a violation, it must be “expressly declared to be a violation.” 8 Specifically, 11 Del. C. § 4203 provides: “There shall be a class of offenses denominated violations. No offense is a violation unless expressly declared to be a violation in this Criminal Code or in the statute defining the offense.”9 A plain reading of this statutory text reflects a legislative intent to treat felonies and misdemeanors differently from violations.10 However, a plain reading of the term “adult conviction” indicates that it encompasses all “offenses.” This reading of the statutory scheme leads to the harsh result that the majority understandably strains to avoid, namely, that speeding violations under Title 21 are bars to juvenile ex-pungement.

¶8I part from the majority’s company in this case because, while I agree that the result is harsh and also favor a way to avoid it, I cannot do so through my reading of the statutes as they are presently written. Thus, if there is a perceived “harshness” with this result, then that is a problem for the legislature to address.11

¶9*828The majority concludes that only offenses contained within Titles 4, 7, 11, 16, and 23 act as an automatic bar to juvenile expungement under Section 1018(a)(3). They argue that because the five titles are expressly enumerated, these five titles must be the only the titles that are included within the term “adult conviction.” Therefore, they argue, a Title 21 offense, since it is not one of the five enumerated titles, is not a bar to expungement. The flaw in the majority’s statutory analysis is evidenced in at least six ways.

¶10First, to accept the majority’s logic, and to apply it consistently within Section 1018, would be to find that only Title 11 and 16 adult convictions bar expungement when the petitioner is seeking expungement of a single juvenile felony under 10 Del. C. § 1018(a)(1), because that subsection only mentions Titles 11 and 16.12 The majority is not prepared to say that Section 1018(a)(1) is so limited. Yet, the majority fails to offer any cogent explanation for the lack of consistency in their interpretation of two paragraphs contained in the same section of the statute. The majority’s logic conflicts with the principle of statutory construction upon which the majority relies, namely, the “expression of one thing is the exclusion of another.”13

¶11Second, it is not reasonable to conclude that the five titles referenced in Section 1018(a) are the only offenses which should automatically bar juvenile expungement for yet another reason. Section 1018(a)(3) references Titles 4, 7, 11, 16, and 23.14 However, there are offenses under Titles 3, 6, 9,15, 20, 21, 30, and 31 that constitute felonies and could be deemed “adult convictions” that bar juvenile expungement.15

¶12*829Third, Section 1018(a)(3) itself uses the term “offenses” to include “violations” in providing that “[a] child has no more than 2 adjudications of delinquency involving separate and distinct cases where the offenses for which the child was adjudicated delinquent are designated as misdemeanors or violations....”16 Thus, the majority’s logic of holding that only offenses under Titles 4, 7, 11, 16, and 23 bar ex-pungement, leads to yet another illogical result. For example, Title 23 makes it a violation to fail to purchase a $35 boat ramp certificate.17 It would be an absurd result if the failure to purchase a boat ramp certificate bars juvenile expungement when careless driving under Title 2118 that results in an accident19 does not. Thus, while the majority relies on the policy statement in Section 1014 regarding the desire to “protect children and citizens from unwarranted damage which may occur as a result of a juvenile arrest record ...,” its interpretation of the statutory scheme does not necessarily further that end.

¶13Fourth, the majority’s reliance on Section 1015(b)’s requirement that petitioners attach “a copy of that petitioner’s criminal history as maintained by the State Bureau of Identification” in support of its conclusion is misplaced.20 The majority reasons that because the certified criminal history does not include Title 21 traffic violations, such offenses were not intended to be considered as bars to juvenile expungement. The majority is correct in noting that Title 21 traffic violations are listed on the Delaware Criminal Justice Information System (“DELJIS”), and most Title 21 offenses are not included in the certified criminal history.21 However, this argument fails to acknowledge that the Family Court, when considering the expungement petition, must always rely on the DELJIS record for certain purposes.22 Only the DELJIS record — not the certified criminal history — indicates whether an individual has a pending criminal charge against him or her. Thus, the Family Court must rely on the DELJIS record to determine if there are pending criminal charges against the petitioner that may bar juvenile expungement.23 It seems logical, therefore, that *830the DELJIS record, which is unavailable to the general public, was intended by the legislature to be used by the Family Court to determine a petitioner’s eligibility for juvenile expungement.24

¶14Fifth, the majority reaches the conclusion that only violations under the titles enumerated in the language of Section 1018(a)(8) should constitute a bar on ex-pungement, in part, on reading into the terms “other” and “subsequent” a reference to the specified titles mentioned in the subsection. The terms “other” and “subsequent” apply to “adjudication of delinquency” but do not apply to “adult conviction.” This is because an “adult conviction” must necessarily be after-in-time any juvenile offense or adjudication of delinquency. Whereas an adjudication of delinquency may not necessarily be after the offense for which expungement is sought, and therefore, the terms “other” and “subsequent” are a necessary modifier. To apply the terms “other” and “subsequent” to “adult conviction” would create rfedun-dancy and violate the canon against sur-plusage 25 because an offense committed as an “adult” necessarily encompasses the fact that it is subsequent to an offense committed as a “juvenile.” As a result, the use of the word “or” serves as a disjunction between “other subsequent adjudication of delinquency” and “adult conviction.” 26 Accordingly, even if we were to attribute any meaning to the words “other” and “subsequent,” those words modify “adjudication of delinquency,” not “adult conviction.”

¶15Sixth, the juvenile expungement statutes have been amended several times in the recent years.27 The General Assembly has had ample opportunity to include within the statutory text carve outs and exclusions. For example, it has made explicit exclusions in 11 Del. C. § 4121(e)(2) for motor vehicle offenses:

If the offender has been convicted of any subsequent offense (other than a motor *831vehicle offense) ... no petition or redesignation [of a reformed sex offender] shall be permitted until 25 years have elapsed from the date of the subsequent conviction....”28

¶16Additionally, the General Assembly designated certain Title 21 violations as civil offenses that do not constitute prior convictions for the purpose of granting probation before judgment.29 These carve outs indicate that the legislature intends for the term “offense” to include Title 21 traffic violations unless there is a motor vehicle offense carve out.30 Thus, because certain statutes expressly carve out motor vehicle violations from qualifying offenses and Title 10 does not, the legislature must have intended to include Title 21 traffic violations within the scope of offenses that bar juvenile expungement.

¶17The Family Court has struggled with how to address Title 21 in the context of juvenile expungement. For example, in M.S. v. State, the Family Court addressed

¶18a petition for juvenile expungement where the petitioner had seven convictions for speeding and one conviction for failure to change an address.31 The court interpreted “adult conviction”32 under its plain meaning and found that Title 21 traffic violations were “adult convictions.” In R.E. v. State, the Family Court addressed a petition for juvenile expungement where the petitioner had two driving under the influence (“DUI”) convictions as an adult.33 The court considered our decision in Lee v. State where we affirmed the denial of a juvenile expungement petition under the predecessor of our current juvenile ex-pungement statutes34 because Lee’s offenses, “including motor vehicle offenses, driving under the influence, failure to register as a sex offender and hindering prosecution,” were bars to juvenile expungement.35 The court balanced our decision against the fact that a certified criminal history from the State Bureau of Identification does not include motor vehicle violations, including first and second offense DUIs.36 The Family Court ultimately *832reached the conclusion that a DUI was a Title 21 offense that would bar juvenile expungement because it “is a very serious offense which can cause severe injury and death.”37 However, in CM. v. State, the Family Court determined that a speeding offense should not be considered an “adult conviction” because otherwise the plain meaning of the juvenile expungement statute leads to an unreasonable result.38 These cases suggest that the Family Court could benefit from some clearer guidance on what types of offenses constitute bars to juvenile expungement.

¶19Apart from our disagreement with the majority’s statutory analysis, we further depart from the majority’s opinion in its reading of C.M. v. State. The majority relies on this case to illustrate a potential anomaly where an expungement would not be barred for a predicate offense committed 39 as an adult, but would be barred for an offense committed as juvenile, if a Title 21 offense were committed after the offense for which expungement is sought. The majority fails to consider critical language in the adult expungement statute. The Family Court concludes that if “adult convictions” under Section 1018 include Title 21 offenses, the juvenile expungement statutes would be harsher than the adult expungement statute.40 The Family Court reached this conclusion based on its reading of the adult expungement statute, 10 Del. C. § 1025:

If the Court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes, or may cause, circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records relating to the charge or case. Otherwise, it shall deny the petition. The burden shall be on the petitioner to allege specific facts in support of that petitioner’s allegation of manifest injustice by a preponderance of the evidence. The fact that the petitioner has previously been convicted of a criminal offense, other than that referred to in the petition, shall be considered by the Court as prima facie evidence that the continued existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner:41

¶20Section 1025 indicates that an adult convicted of a criminal offense prior to the case terminated in his or her favor (for which he or she is seeking expungement) must rebut the prima facie evidence that a denial of an expungement petition will not constitute a manifest injustice.42 The Family Court concluded that if Section 1025 allows for presenting evidence to the court to determine whether a denial of an expungement petition would constitute a manifest injustice, and Section 1018 does not provide that opportunity, the juvenile expungement statute is more harsh than the adult expungement statute.43 This con-*833elusion, which the majority adopts, is based upon a misunderstanding of the time periods referenced in the statutes. The adult expungement statute only allows for evidence to be presented if the offense occurred prior to the case for which the petition is filed — not after.44 The “adult conviction” term in the juvenile expungement statutes applies only to an offense “subsequent” to the case for which the petition is filed.45 Thus, because the adult expungement statute and the juvenile expungement statutes reference different time periods, it does not follow that the juvenile expungement statutes are more onerous than the adult expungement statutes.46

¶21Finally, as pointed out to this Court during oral argument, the State Senate considered a bill as recently as June 3, 2014, that would have amended the definition of “adult conviction” to include only offenses “punishable by 30 or more days of imprisonment.”47 It appears that some members of the General Assembly have already recognized that allowing Title 21 traffic violations to bar juvenile expungement can result in what is likely viewed by many as an undesirable result. As the statute is now written, however, I cannot embrace my colleagues’ interpretation of it. Accordingly, I would AFFIRM the decision below.