Saturday, October 8, 2016

Statutory Sealing

Seal. Seal? Get it? 
State v. Villeneuve, 2016 VT 80

By Amy E. Davis

In December 2001, Defendant pleaded guilty to lewd and lascivious conduct with a child. The conduct leading to the charge occurred when Defendant was twenty years old. Defendant successfully completed probation, including sex-offender counseling in June 2004, and was successfully discharged from probation that same month. Defendant has no subsequent criminal convictions.

In September 2015, Defendant asked to seal his record under subsection (g) of this statute on the grounds that it had been more than two years since his discharge from probation, and that his underlying conviction occurred before he turned twenty-one. The trial court denied the petition because the underlying offense was a crime listed under this statute, and its reading of the statute was that because the underlying offense was under that statute, the record may not be sealed. Defendant’s interpretation was that this only applied to subsequent convictions, and not the underlying conviction.

Reviewing de novo, the SCOV looks to the plain, ordinary meaning of the applying-for-sealing statute. In reading subsection (g), the SCOV concludes that the language is inclusive of all criminal convictions, and does not limit applicability based on the nature of the initial crime to those not listed under the other statute. Based on the plain language of the statutes read together, the trial court’s denial was in error. But the sealing of the conviction is not automatic: the trial court must also make findings as to whether the Defendant has been rehabilitated. For that, the SCOV reverses and remands so the trial court can make such findings.

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