State v. DudleyState v. Dudley
Pursuant to statute (§ 54-142d), whenever a person has been convicted of an offense in this state and such offense has been decriminalized subsequent to the date of conviction, such person may file a petition with the Superior Court for an order of erasure, ‘‘and the Superior Court or records center of the Judicial Department shall direct all police and court records and records of the state‘s or prosecuting attorney pertaining to such case to be physically destroyed.‘’
The defendant appealed from the trial court‘s denial of his petition, filed pursuant to § 54-142d, to erase the records related to its finding that he had violated his probation. The defendant had been charged in 2010 with the possession and sale of a controlled substance and, in 2012, was convicted on a plea of guilty to possession of less than one-half ounce of marijuana. At the time of the defendant‘s conduct that led to his 2012 conviction, the defendant was on probation as a result of a prior narcotics conviction, the terms of which required that the defendant not violate any federal or state criminal law. During the 2012 plea proceedings, the defendant admitted that he had violated his probation. Subsequently, the trial court granted the defendant‘s petition to erase the records related to the 2012 conviction in light of the legislature‘s enactment of a statute (§ 21a-279a) in 2011 that decriminalized the possession of less than one-half ounce of marijuana. The trial court concluded, with respect to the defendant‘s separate petition to erase the records pertaining to his probation violation, that the defendant was not entitled to erasure of those records because a conviction was not necessary in order to find that he had violated his probation. On appeal from the trial court‘s denial of that petition, the defendant claimed that he was entitled to erasure because, among other reasons, the probation violation was premised on his 2012 conviction for conduct that has since been decriminalized, and, therefore, it could no longer serve as a basis for the violation of probation finding. Held that the trial court correctly determined that the defendant was not entitled to erasure of the records pertaining to the violation of probation finding: § 54-142d applies only to records pertaining to a criminal case in which a defendant has been convicted of an offense that subsequently was decriminalized, and, because the defendant‘s probation violation proceeding was not a criminal proceeding but constituted a separate civil proceeding, and thus a violation of probation cannot be ‘‘decriminalized,‘’ as that term is used in § 54-142d, that statute did not apply to the records pertaining to the defendant‘s probation violation proceeding; moreover, the legislative history of the marijuana decriminalization statute, § 21a-279a, made clear that, although possession of a small amount of marijuana would be decriminalized, it would still remain illegal, and indicated that the legislature recognized that the state may retain public records of illegal conduct, even if there was no criminal record of such conduct; furthermore, the defendant could not prevail on his claim that § 54-142d clearly requires the erasure of any record containing a reference to his conviction for an offense that subsequently was decriminalized because, in the absence of such conviction, nothing in the record could support the probation violation finding, as the defendant‘s conduct of possessing marijuana, rather than his conviction based on that conduct, supported the probation violation finding, and, even without evidence of the defendant‘s conviction, his general admission during the plea proceedings that he had violated the terms of his probation was sufficient to support that finding.
Procedural History
D‘AURIA, J. In 2011, our General Assembly changed the penalty for possessing less than one-half ounce of marijuana from a potential term of imprisonment and/or a large fine to merely a fine. See
The record reveals the following undisputed facts and procedural history, which are relevant to the resolution of this appeal. In 2007, the defendant pleaded guilty under the Alford doctrine3 to possession of narcotics in violation of
In July, 2008, the defendant was arrested again, this time on a charge of selling narcotics. Pursuant to a September, 2009 plea agreement, he admitted to violating his probation, and the court extended his probation for another year. The court accepted a nolle prosequi from the state on the underlying narcotics charge.
With approximately eight days remaining on the defendant‘s extended probation, in July, 2010, the police found him in possession of less than one-half ounce of marijuana. Subsequently, an arrest warrant issued for the defendant, alleging that he had engaged in the sale of a controlled substance in violation of the conditions of his probation prohibiting the violation of any criminal law of the United States, this state or any other state. The arrest warrant also alleged that the defendant failed to provide verification that he had completed the twenty hours of community service. He was arrested and charged with possession and sale of a controlled substance, and with violating his probation. In July, 2012, he pleaded guilty under the Alford doctrine to the misdemeanor charge of possession of less than four ounces of marijuana in violation of
In 2011, the legislature enacted P.A. 11-71, which changed the penalty for possessing less than one-half of an ounce of marijuana from a potential term of imprisonment and/or a fine to merely a fine of $150 for a first offense and a fine of between $200 and $500 for subsequent offenses. See
In September, 2015, in response both to the enactment of P.A. 11-71 and this court‘s 2015 decision in Menditto, the defendant in the present case filed a petition seeking erasure of the records related to his 2012 marijuana conviction. Because the defendant‘s July, 2012 conviction, which was based on his July, 2010 arrest, was for less than one-half of an ounce of marijuana, the trial court granted the defendant‘s motion.
In April, 2016, the defendant filed another petition, this time seeking erasure of the 2012 finding that he had violated his probation. The defendant argued that, because his 2012 marijuana conviction had been erased from his record, no conviction any longer supported the violation of probation finding. The trial court denied the defendant‘s motion, reasoning that ‘‘you don‘t need any conviction to violate your probation. . . . [It] is a standard condition of probation that you not violate any laws of the United States or any other state, so the conviction, whether there is in fact a conviction or not, isn‘t necessary.‘’
The defendant appealed from the trial court‘s decision to the Appellate Court, and the appeal was transferred to this court pursuant to
In addressing the defendant‘s sole claim on appeal, we begin with our well established standard of review and governing legal principles. The trial court‘s ruling that
The erasure statute,
Both parties argue that
The defendant first argues that the finding that he violated his probation is a ‘‘record‘’ that qualifies for erasure under
The state responds that the erasure statute applies only to records pertaining to the criminal case in which the defendant was convicted of an offense later decriminalized. The state contends that the violation of probation proceeding did not ‘‘pertain to‘’ that criminal case but was, in fact, a separate civil proceeding. We agree with the state.
In determining what the legislature intended by the term ‘‘such case,‘’ we must carefully examine the entire text of the statute. See, e.g., Lackman v. McAnulty, supra, 324 Conn. 287 (‘‘[i]t is a basic tenet of statutory construction that [w]e construe a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation‘’ [internal quotation marks omitted]). We first observe that the phrase ‘‘such case‘’ undoubtedly refers to the phrases, ‘‘an offense,‘’ and ‘‘such offense,‘’ which appear earlier in the same sentence. Neither party contends otherwise. That is to say, ‘‘such case‘’ can refer only to the case in which the ‘‘person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction . . . .‘’ (Emphasis added.)
As applied to the defendant‘s record in the present case, ‘‘such case‘’ can refer only to his 2012 conviction under his Alford plea in connection with his July, 2010 conduct, which resulted in his arrest on the misdemeanor charge of possession of less than four ounces of marijuana.9 ‘‘Such case‘’ cannot, as the defendant appears to initially contend, refer to his probation violation. This is because it is well established that a probation revocation proceeding is not a criminal proceeding but is instead more ‘‘akin to a civil proceeding.‘’ State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994). The trial court may ‘‘find a violation of probation [if] it finds that the predicate facts underlying the violation have been established by a preponderance of the evidence‘’ and not beyond a reasonable doubt. Id., 302. As such, a defendant is not ‘‘convicted‘’ of a probation violation and, most relevant to our purposes, because a revocation of probation proceeding is not a criminal proceeding, it would be a misnomer to say that a finding of a violation of probation could be ‘‘decriminalized.‘’ Therefore, the trial court‘s finding that the defendant violated his probation does not constitute a ‘‘convict[ion] of an offense‘’ or an ‘‘offense [that] has been decriminalized
Alternatively, the defendant contends that even if the phrase, ‘‘such offense‘’ or ‘‘such case,‘’ refers only to his 2012 conviction of possession of less than four ounces of marijuana, which has been decriminalized, records of the finding that he violated his probation fall within the scope of those records that are ‘‘pertaining to‘’ that offense or criminal case. Specifically, he argues that the legislature‘s use of the phrase ‘‘pertaining to‘’ manifests an intent to have the erasure statute extend beyond mere conviction information to encompass any records of any judicial proceeding that either reference the conviction or that rely on the underlying facts that supported the conviction. This includes, according to the defendant, records relating to the violation of probation proceeding, in which, he contends, the trial court relied on his conviction of possession of less than four ounces of marijuana to support the finding that he violated his probation.
For its part, the state agrees that the phrase ‘‘pertaining to‘’ expands the reach of the statute beyond mere conviction information, but argues that it does so in a different way than the defendant contends. Namely, the state argues that the phrase encompasses all records specifically pertaining to the criminal case in which the defendant was convicted of the offense that later was decriminalized. This includes records from the police, the prosecutor, and the courts that supported the conviction, such as, for example, investigative records, trial transcripts, and case files.
We conclude that the state has the better textual argument. The erasure statute provides that, upon the decriminalization of an offense, and upon a person‘s petition to the court for an order of erasure, ‘‘the Superior Court or records center of the Judicial Department shall direct‘’ the physical destruction not of all records pertaining to such case, but of ‘’all police and court records and records of the state‘s or prosecuting attorney‘’ pertaining to such case. (Emphasis added.)
Even if we thought that both the defendant‘s and the state‘s interpretations were plausible, a look at the text of the marijuana decriminalization statute and its legislative history makes clear that the legislature did not intend the result the defendant suggests. See Lackman v. McAnulty, supra, 324 Conn. 286. First, the text of P.A. 11-71, decriminalizing possession of less than four ounces of marijuana effective July 1, 2011, makes no mention of the erasure statute whatsoever. Nor does it speak to whether records of any noncriminal violations for possessing that amount of marijuana after the effective date would be available to the public. That records of ‘‘convictions‘’ of possession of less than four ounces may now be erased is not an issue addressed explicitly by the text of P.A. 11-71, but is a conclusion drawn from the erasure statute itself once we concluded that P.A. 11-71 ‘‘decriminalized‘’ this conduct. See State v. Menditto, supra, 315 Conn. 866.
Further, the legislative history of the marijuana decriminalization statute makes clear that the legislature did not intend to legalize possession of less than one-half of an ounce of marijuana. Rather, one of the purposes of P.A. 11-71 was to prevent imprisonment for mere possession of a small amount of marijuana. Id., 873. The legislature made clear that, although such possession would be decriminalized, it remained illegal and would result in a fine. See 54 S. Proc., Pt. 17, 2011 Sess., p. 5471, remarks of Senator Martin M. Looney (‘‘decriminalization is not legalization . . . but we are trying to realign the punishment to something that is appropriate‘‘); 54 H.R. Proc., Pt. 26, 2011 Sess., p. 8738, remarks of Representative Brendan J. Sharkey (‘‘this policy of decriminalization—not making it legal, it‘s still illegal‘‘); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2011 Sess., p. 2435, remarks of Representative Lawrence F. Cafero, Jr. (‘‘this bill doesn‘t seek to legalize marijuana‘‘).
Because the legislature did not intend to legalize possession of less than one-half of an ounce of marijuana, it recognized that, although such conduct would not result in a criminal record, the state may retain public records regarding such a violation because the conduct remains illegal. See 54 H.R. Proc., Pt. 25, 2011 Sess., p. 8530, remarks of Representative Gerald M. Fox III (explaining that, although ‘‘[t]here would be no criminal record,‘’ ‘‘[t]here would still be a record of the violation,‘’ and state would retain records of such violations). Specifically, this issue arose during the legislature‘s consideration of P.A. 11-71, in its discussion concerning arrests for violations of the new law going forward, which would not result in a criminal conviction but instead would result in a fine or, after more than two violations, an order requiring participation in a drug education program. See
As such, in decriminalizing the conduct at issue, the legislature intended only to provide offenders with the opportunity to erase any criminal record, thereby allowing them to answer that they had not been convicted of a crime when asked in an employment or other context; the legislature did not intend to prevent the creation of a record of the violation in general. See 54 H.R. Proc., Pt. 26, 2011 Sess., pp. 8551–52, 8595, remarks of Representative Fox (explaining that, although there may be record of violation, there would be no criminal record, and offenders may truthfully state on employment application that they have not been convicted of crime). Similarly, the purpose of the decriminalization provision of our erasure statute is not to remove from public view entirely all violations of law, including those that have been decriminalized but, rather, to allow those convicted of a criminal offense to have their criminal records erased upon subsequent decriminalization of the offense. State v. Menditto, supra, 315 Conn. 868–69 (purpose of decriminalization is to reduce penalties, not to legalize conduct).
As a result, the legislature‘s intent is not thwarted by an offender‘s violation of probation remaining publicly available and not being erased. The legislature never intended for there to be no record whatsoever of an offender‘s violation, only no criminal record. As previously discussed, violation of probation is not itself a crime and does not create a criminal record, but is more akin to a civil violation; State v. Davis, supra, 229 Conn. 295; not unlike violations that are not subject to erasure and remain publicly available. If, after 2011, an offender‘s violation for possessing less than one-half of an ounce of marijuana would not be erased, but would be publicly available, it stands to reason that a violation of probation for similar conduct would not need to be erased. In either instance, decriminalization has served its purpose in that the offender does not have a criminal record. We do not discern the legislature‘s intent as going any further than that.
The defendant counters that, to the extent that the erasure statute is ambiguous, the rule of lenity should
The defendant responds that, even if the erasure statute does not apply to a violation of probation finding, the erasure statute clearly requires the erasure of any reference to his conviction of possession of less than one-half of an ounce of marijuana and, in the absence of that conviction, nothing in the record supports the violation of probation finding. This argument fails. The arrest warrant specifically stated that the defendant was arrested for and charged with sale of a controlled substance, which, the state alleged, violated the conditions of his probation, specifically, the requirement that he ‘‘not violate any criminal law of the United States, this state or any other state or territory.‘’ At the plea proceeding, the state specified on the record that the violation of probation charge was premised on both the fact that the defendant had been arrested and charged with sale of a controlled substance, and the fact that he had been in possession of marijuana. As alleged in the arrest warrant, such conduct at the time violated state law, which, in turn, violated the terms of his probation. Thus, although the defendant might very well be entitled to erasure of any reference to his conviction, including any reference in his probation violation file, even without reference to the conviction of the subsequently decriminalized conduct, the fact that the defen
Additionally, in the arrest warrant and at the plea proceeding, the state relied on the fact that the defendant had been arrested and charged with sale of a controlled substance, which constituted a violation of the criminal laws of this state. The defendant contends, however, that he admitted only to the possession of marijuana charge under state law, not to the sale of a controlled substance charge or to having violated federal law. He argues that, without evidence of the conviction, there is insufficient evidence that he engaged in the sale of a controlled substance.
Contrary to his assertions, when the defendant admitted to the violation of probation charge, he did not specify that his admission was limited to the ground of possessing marijuana in violation of state law. The defendant was convicted of possession of marijuana in violation of
For all of the foregoing reasons, we agree with the state that
The decision of the trial court is affirmed.
In this opinion the other justices concurred.