State v. Clayton Turner

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.

2021 VT 30

No. 2020-143

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Windham Unit,
Criminal Division

Clayton Turner December Term, 2020

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,

2
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.

1
In 2020, after petitioner filed his expungement petitions, the Legislature amended
§ 1501(b)(3), effective January 1, 2021, to remove the 2019 decriminalization of absconding from
furlough enacted in Act 77 only a year earlier. See 2019, No. 148 (Adj. Sess.), §§ 18, 25 (“It shall
not be a violation of subdivision (1)(A), (1)(B), or (1)(C) of the subdivision if If the person is on
furlough status pursuant to 28 V.S.A. § 808(a)(6)723, 808(e), 808(f), or 808a, 808b or 808e a
violation of this subdivision (1) of this subsection requires a showing that the person intended to
escape from furlough.”). The Act also added the following sentence to the first sentence of
§ 808(e): “A law enforcement officer who is provided with a warrant issued pursuant to this section
shall execute the warrant and return the person who has absconded from furlough to the
Department of Corrections.” Id. § 17. In the findings and purpose section of Act 148, the
Legislature found in part that: (1) almost half of Vermont’s sentenced prison population in fiscal
year 2019 were persons returned from community supervision, primarily furlough; (2) a large
percentage of those persons were returned from furlough due to technical violations rather than
3
 ¶ 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 potential

new criminal offenses; and (3) the large percentage of prisoners returned from community
supervision limited funding for programs and services required for high-risk people to succeed in
the community. Id. § 1. Once of the three stated purposes of the Act is to “[i]mprove public safety
in Vermont, while creating immediate opportunities to reduce recidivism and achieve long-term
savings by reducing contract bed needs significantly.” Id.
4
interpretations.”). 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).

5
 ¶ 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

that the jurors unaffected by the act were those who “not only have been chosen, but also drawn

and finally summoned.” Id. at 478-79, 100 A. at 924 (“It is not uncommon in the construction of

statutes to take a conjunctive expression in a disjunctive sense, or vice versa, when it is obvious

that such is the meaning to be gathered from the whole act.”); see also McGoff v. Acadia Ins. Co.,

2011 VT 102, ¶ 7, 190 Vt. 612, 30 A.3d 680 (mem.) (construing phrase “any motor vehicle

registered or principally garaged in this state” in context of entire sentence to be “conjunctive

rather than disjunctive, thereby requiring both elements to be satisfied for the statute to apply”).

¶ 12. Notably, although the word “or” is most commonly used in its disjunctive sense, it

is also “used after a negative verb to mean not one thing and also not another.” Or, Cambridge

Online Dictionary, https://dictionary.cambridge.org/us/dictionary/english/or [https://perma.cc/

VT75-XKL9] (emphasis added). The dictionary provides the example: “The child never smiles or

laughs.” Id. The two conditions follow a verb made negative by its preceding adverb, and thus

the “or” effectively becomes an “and”: the child never smiles and never laughs.

¶ 13. Similarly, in this case, the conditions are contained in clauses that follow the

negative adverb phrase, “no longer.” Thus, expungement is available only when the underlying

conduct is both no longer prohibited by law and no longer designated as a criminal offense. For

the eighteen-month period in question, absconding from furlough was decriminalized but it was

still prohibited by law, allowing the State to arrest and return to a correctional facility those who

violated the law. See 2019, No. 77, ¶ 11. Hence, petitioner was not entitled to expungement.

¶ 14. Petitioner cites testimony in the Senate Judiciary Committee indicating that the bill

adding § 7602(a)(1)(B) was aimed primarily at addressing minor drug possession that had been

6
decriminalized but was still subject to a civil fine. He also cites § 7602(e),2 which specifically

addresses petitions filed pursuant to § 7602(a)(1)(B) that seek expungement “for a conviction for

possession of a regulated drug under 18 V.S.A. chapter 84, subchapter 1 in an amount that is no

longer prohibited by law or for which criminal sanctions have been removed.” According to

petitioner, § 7602(e) is made superfluous under the State’s interpretation of § 7602(a)(1)(B).

¶ 15. Regarding petitioner’s reference to comments made by committee members and

witnesses at committee hearings considering the bill that added § 7602(a)(1)(B) in 2015, we have

concluded that such comments are of little weight in determining legislative intent. See State v.

Madison, 163 Vt. 360, 373-74, 658 A.2d 536, 545 (1995) (stating that comments made by

individual legislators at committee hearings “are of little weight in determining legislative intent,

unless they also exist in a written report that was available for review by the full legislature before

passing the bill”); see also St. Amour v. Dep’t of Soc. Welfare, 158 Vt. 77, 81, 605 A.2d 1340,

1342 (1992) (stating that, although not decisive, intent of Legislature as revealed by committee

report is highly persuasive when statute is silent on disputed issue).3 In any case, the comments

petitioner relies upon merely suggest, as the dissent acknowledges, that the amendments to the

expungement statute in 2015 were aimed, in large part, at making expungement available for

decriminalized drug offenses—particularly possession of small amounts of marijuana—where the

2
Section 7602(e) was originally enacted as § 7602(f) as part of Act 36 in 2015, at the same
time the disputed § 7602(a)(1)(B) was added. 2015, No. 36, § 2.
3
The dissent cites extensively to questions and comments made by committee members
and legislative staff concerning the proposed bill that led to the Act amending § 7602. None of
the comments are definitive as to what the committee members understood to be the meaning of
the provisions in question. More importantly, those comments are not expressed in the
committee’s final report and are not helpful in determining what the full Legislature intended when
it enacted the amendments to § 7602.

7
potential collateral consequences to the individuals convicted of such offenses substantially

outweighed any harm to society.4

¶ 16. Petitioner argues, however, that the State’s conjunctive reading of § 7602(a)(1)(B)

would render superfluous § 7602(e), which was also added to the expungement statute in 2015,

because § 7602(e) plainly demonstrates that the Legislature intended § 7602(a)(1)(B) to apply to

decriminalized but still unlawful possession of certain regulated drugs. We disagree.

¶ 17. Subsection 7602(e) addresses the burden of proof and a rebuttable presumption

“[f]or petitions filed pursuant to subdivision (a)(1)(B) of this section for a conviction for

possession of a regulated drug . . . in an amount that is no longer prohibited by law or for which

criminal sanctions have been removed.” See 13 V.S.A. § 7602(e)(1)-(2) (emphasis added). In

contrast to § 7602(a)(1)(B), the negative adverb phrase “no longer” in § 7602(e) does not modify

the second independent clause that follows the adverb and that has different language from the

second clause in § 7602(a)(1)(B). Thus, unlike § 7602(a)(1)(B), the word “or” separating the two

phrases in § 7602(e) is used in its disjunctive sense. With respect to requests for expungement of

past convictions for now-decriminalized possession of regulated drugs, expungement is available

when the conviction was based on possessing a regulated drug that either “is no longer prohibited

by law or for which criminal sanctions have been removed.” 13 V.S.A. § 7602(e) (emphasis

added); see State v. O’Keefe, 2019 VT 14, ¶ 16, 209 Vt. 497, 208 A.3d 249 (stating that we give

effect to specific provision over general provision in statutory scheme); Judicial Watch, Inc. v.

State, 2005 VT 108, ¶ 8, 179 Vt. 214, 892 A.2d 191 (“It is axiomatic that in construing conflicting

statutes that deal with the same subject matter, the more specific provision controls over the more

general one.” (quotation and alteration omitted)).

4
The Legislature had decriminalized possession of small amounts of marijuana in 2013.
See 2013, No. 76, § 2.
8
 ¶ 18. This makes sense, notwithstanding inconsistencies between the language in the two

provisions discussed below. The broader, more general provision, § 7602(a)(1)(B), generally

requires satisfaction of both conditions set forth therein to obtain expungement—unless provided

otherwise in more specific provisions set forth within the statute. In § 7602(e), a more specific

provision dealing with petitions for expungement of past convictions for now-decriminalized drug

offenses, only one of the two conditions set forth therein need be satisfied to obtain expungement

of convictions for now-decriminalized possession of regulated drugs. Expungement is available

for possessing certain regulated drugs in an amount that is either “no longer prohibited by law or

for which criminal sanctions have been removed.” 13 V.S.A. § 7602(e). As noted, those minor

drug convictions were based on conduct that generally caused little social harm compared to the

potential negative consequences for those convicted and that was, at the time of Act 77, subject

only to civil fines. See 2013, No. 76, § 2 (imposing civil penalty for possession of less than one

ounce of marijuana).

¶ 19. Absconding from furlough is an entirely different matter, however. That conduct

can lead to other harmful consequences, as recognized by the fact that persons engaging in the

conduct, even during the eighteen-month period when it was decriminalized, were subject to

substantial penal sanctions involving loss of personal liberty—including warrantless arrest

(referred to as return on mittimus) or arrest pursuant to the Commissioner’s warrant and return to

a correctional facility, with loss of good time. See 28 V.S.A. § 808(d).

¶ 20. We acknowledge that we are construing § 7602(a)(1)(B) to generally require that

the subject offense is no longer criminalized and no longer illegal, while construing § 7602(e) to

require that the offense in question be either no longer criminalized or unlawful—even though

§ 7602(e) refers to petitions filed pursuant to § 7602(a)(1)(B). Again, we recognize that the

language of the relevant provisions in § 7602 at issue in this appeal is far from a model of clarity.

But the critical language in the two key provisions is distinct, and the specific provision controls

9
over the general provision. Considering the statutory scheme in its entirety, including its subject

matter, purpose, effects, and consequences, we conclude that a conjunctive reading of

§ 7602(a)(1)(B) best serves the legislative intent underlying the statute. See Toensing, 2019 VT

30, ¶ 7 (stating that when considering ambiguous statutory language, “we may infer intent from

the statute’s subject matter, purpose, effects, and consequences”). Accordingly, although

generally expungement petitions filed under § 7602(a)(1)(B) require a showing that the offense in

question is both no longer criminalized and no longer unlawful, petitions seeking expungement of

offenses for possessing regulated drugs need show only that the offense has been either

decriminalized or made lawful.

¶ 21. Given our interpretation of § 7602(a)(1)(B), we need not address the other two

issues raised in this appeal, namely whether petitioner “ha[d] completed any sentence or

supervision for” his absconding-from-furlough convictions, see 13 V.S.A. § 7602(d)(1), and

whether petitioner demonstrated that he was entitled to expungement of those convictions in the

“interests of justice,” see id. § 7602(d).

Affirmed.

FOR THE COURT:

Associate Justice

¶ 22. ROBINSON, J., dissenting. I agree with the majority that, viewed in isolation,

the provision authorizing an expungement request from a person who has been convicted of an

offense “for which the underlying conduct is no longer prohibited by law or designated as a

criminal offense” is ambiguous. 13 V.S.A. § 7602(a)(1)(B). As the majority acknowledges, if the

Legislature intended to authorize expungement or sealing of criminal history records with respect

to only those convictions for which the underlying conduct is no longer prohibited by law, even if

10
it has been decriminalized, the inclusion of “or designated as a criminal offense” would be

superfluous. On the other hand, if the Legislature intended to authorize expungement of

convictions for all conduct no longer designated as a crime, its inclusion of offenses for which the

underlying conduct is “no longer prohibited by law” appears to add nothing.

¶ 23. But the tools of statutory construction uniformly compel the conclusion that

§ 7602(a)(1)(B) reaches convictions for conduct that is no longer a crime, regardless of whether it

is unlawful in some other sense. First, focusing solely on the language of § 7602(a)(1)(B), there’s

a good explanation for the apparently superfluous language if the Legislature intended that

subsection to reach all convictions for conduct that is no longer classified as criminal; by contrast,

if the Legislature intended to limit the subsection’s reach to conduct that is no longer prohibited

by law, there is no plausible explanation for the words it used. Second, this interpretation is the

only one that renders the statute coherent, considering other closely related provisions in the

statute. And third, this understanding best promotes the goals of the expungement statute as

evidenced by persuasive legislative history. Against these considerations, the majority’s reasoning

is not convincing.

¶ 24. The Legislature’s apparently redundant inclusion of the descriptor “no longer

prohibited by law” makes sense when you consider that sometimes the Legislature reclassifies

conduct from a crime to a civil offense, and sometimes it simply legalizes conduct that it formerly

treated as criminal. Compare 2013, No. 76, §§ 1-2 (reclassifying possession of one ounce or less

of marijuana as a civil offense) with 2017, No. 86 (Adj. Sess.), § 4 (legalizing possession of one

ounce or less of marijuana). Understood as a way of communicating that expungement is available

whether the formerly criminal conduct has been decriminalized (while still subject to civil

penalties) or completely legalized, the Legislature’s choice of language makes sense. This kind of

“belt-and-suspenders” approach to drafting statutes is not that unusual. See, e.g., State v. Gauthier,

2020 VT 66, ¶ 14, __ Vt. __, 238 A.3d 675 (“[G]iven the purpose of the law, it is substantially

11
more likely that the Legislature adopted a ‘belt-and-suspenders’ approach than that it left gaps in

the reporting framework.”); see also Atl. Richfield Co. v. Christian, 590 U.S. __, __, 140 S.Ct.

1335, 1350 n.5 (2020) (recognizing that “sometimes the better overall reading of the statute

contains some redundancy” and concluding that it was “much more likely that Congress employed

a belt and suspenders approach” in drafting the statute (quotation omitted)). In short, there’s a

simple explanation for the Legislature’s use of both phrases in § 7602(a)(1)(B) if the statute is

understood to apply to formerly criminal conduct that has either been decriminalized or outright

legalized.

¶ 25. By contrast, if the Legislature intended that the only convictions subject to

expungement are those for conduct that has been fully legalized, I cannot discern any reason why

the Legislature would have added a reference to decriminalized offenses. It wouldn’t make any

sense because if conduct is legalized, it is necessarily not criminal. Given the straightforward

explanation for the statutory language if we accept petitioner’s construction, and the inexplicable

inclusion of gratuitous statutory language if we accept the State’s interpretation, the former best

aligns with the language of § 7602(a)(1)(B) on its face. As the United States Supreme Court has

remarked in the context of interpreting a statute, “Often the simplest explanation is the best.” See

Atl. Richfield Co., 590 U.S. at __, 140 S.Ct. at 1350.

¶ 26. Moreover, this is the only interpretation that aligns with the statute as a whole. See

Shires Hous., Inc. v. Brown, 2017 VT 60, ¶ 9, 205 Vt. 186, 172 A.3d 1215 (“In construing

legislative intent, we must consider the entire statute, including its subject matter, effects and

consequences, as well as the reason for and spirit of the law.” (quotation omitted)). Subsection

(a)(1) of § 7602 lists four categories of convictions eligible for expungement, including the

category at issue here: offenses “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). Subsection (e) of the statute

applies a particular burden of proof and presumption to the subset of § 7602(a)(1)(B) cases in

12
which a person seeks expungement of a conviction for possession of a regulated drug “in an

amount that is no longer prohibited by law or for which criminal sanctions have been removed.”

Given this slightly different wording, there can be no doubt that subsection (e) contemplates

expungement of convictions for possession of regulated drugs in amounts that have been

decriminalized but are still unlawful, as well as for amounts that are not prohibited by law at all.

The majority acknowledges this. Ante, ¶ 17.

¶ 27. Rather than reading the unambiguous language of § 7602(e) as resolving the

ambiguity in § 7602(a)(1)(B), the majority suggests that the divergent wording is intentional and

signifies a legislative intent to treat petitions to expunge convictions for possession of regulated

drugs differently from petitions to expunge other kinds of convictions pursuant to § 7602(a)(1)(B).

Ante, ¶¶ 17-18. In particular, the majority concludes that the Legislature intended to authorize

expungement of convictions for possession of regulated drugs in decriminalized but still-unlawful

amounts, in deliberate contrast to the Legislature’s limitation of expungements of other convictions

to those arising from conduct that is no longer unlawful.

¶ 28. In so reasoning, the majority ignores the structure and the language of the statute.

Subsection (e) does not purport to establish an independent or expanded category of expungeable

offenses; rather, it sets forth a special burden of proof and presumption for a subset of offenses

that are subject to expungement pursuant to § 7602(a)(1)(B). In particular, it provides:

For petitions filed pursuant to subdivision (a)(1)(B) of this section
for a conviction for possession of a regulated drug . . . in an amount
that is no longer prohibited by law or for which criminal sanctions
have been removed[, a specific burden of proof and rebuttable
presumption apply concerning the amount of the regulated drug for
which the person was convicted].

13 V.S.A. § 7602(e) (emphasis added). Simply put, the path to § 7602(e) runs right through

§ 7602(a)(1)(B); by definition, § 7602(e) cannot authorize expungements for a broader class of

convictions than § 7602(a)(1)(B). Based on the unambiguous language of § 7602(e), if a

conviction for conduct that has been decriminalized but not legalized cannot be expunged pursuant
13
to § 7602(a)(1)(B), then § 7602(e) does not come into play with respect to that conviction—

regardless of whether it involves possession of regulated drugs—and the reference in § 7602(e) to

convictions for possession of amounts “for which criminal sanctions have been removed” has no

application. See Heffernan v. Harbeson, 2004 VT 98, ¶ 7, 177 Vt. 239, 861 A.2d 1149 (“In cases

where there is doubt or ambiguity . . . we discern legislative intent by considering the statute as a

whole, reading integral parts of the statutory scheme together.”).

¶ 29. At the time § 7602(a)(1)(B) was enacted, possession of less than one ounce of

marijuana by an adult over the age of twenty-one was a civil offense. See 2017, No. 86 (Adj.

Sess.), § 4 (amending statute that made possession of one ounce or less of marijuana a civil offense

to make such possession fully legal). Given the language and the structure of the statute, if the

majority is right that § 7602(a)(1)(B) does not authorize expungement of convictions for conduct

that has been decriminalized but is still a civil offense, then when it was enacted, the expungement

statute would not have authorized expungement of convictions for possession of less than one

ounce of marijuana. That most certainly was not the Legislature’s intent. The driving force behind

the 2015 amendment to the expungement statute was the Legislature’s recent decriminalization of

possession of small amounts of marijuana. Given that § 7602(e) only applies to a subset of

convictions subject to expungement pursuant to § 7602(a)(1)(B), and given that on its face and in

light of its historical context § 7602(e) clearly applies to conduct that has been decriminalized but

not legalized, § 7602(a)(1)(B) necessarily applies to conduct that has been decriminalized but is

still unlawful. To conclude otherwise, the majority essentially rewrites the statute by writing the

introductory phrase “For petitions filed pursuant to subdivision (a)(1)(B) of this section”

completely out of § 7602(e).

¶ 30. Finally, persuasive legislative history supports the above construction. Section

7602(a)(1)(B) was enacted in 2015. The bill, entitled “An act relating to expungement of

convictions based on conduct that is no longer criminal,” was first introduced in the Senate. See

14
S.115, 2015-2016 Gen. Assem., Bien. Sess. (Vt. 2015) [hereinafter S.115]. The statement of

purpose of the bill as introduced was as follows: “This bill proposes to permit expungement of a

criminal conviction within one year of the conviction if the conduct on which the conviction was

based is no longer criminal.” S.115 (as introduced by Senate, Feb. 25, 2015),

https://legislature.vermont.gov/Documents/2016/Docs/BILLS/S-0115/S-0115%20As%20

Introduced.pdf [https://perma.cc/EK2J-MPHU]. As introduced, the relevant section of the bill

would have authorized expungement pursuant to § 7602(a)(1)(B) if the person was convicted of:

(I) an offense for which the underlying conduct is no longer
prohibited by law or the criminal sanctions have been repealed; or

(II) possession of a regulated drug . . . in an amount that is no
longer prohibited by law or for which criminal sanctions have been
repealed.

Id. § 2. The bill contained a separate subsection (e) establishing a special burden of proof and

presumption “for petitions filed pursuant to subdivision (a)(1)(B)(i)(II).” Id. Pursuant to the bill

as introduced, there could be no doubt that it sought to authorize expungement of any convictions

for conduct that was subsequently either decriminalized (even if it remained unlawful) or fully

legalized. The Senate did not change this language before passing the bill. See S.115 (as passed

by Senate, Mar. 18, 2015), https://legislature.vermont.gov/Documents/2016/Docs/BILLS/S-

0115/S-0115%20As%20Passed%20by%20the%20Senate%20Official.pdf [https://perma.cc/

G2UM-3P3S].

¶ 31. In the House, the bill was referred to the House Judiciary Committee, where, guided

by Legislative Counsel, the committee walked section-by-section through S.115 as passed by the

Senate. See Meeting Record of S.115 Walk-through with House Comm. on Judiciary, 2015-2016

Bien. Sess. (Vt. Mar. 24, 2015), https://legislature.vermont.gov/

committee/meeting-detail/2016/18/1397 [https://perma.cc/SBC8-ESZS] (meeting recording

available through Vermont State Archives, CD 15-99). With respect to § 7602(a)(1)(B),

Legislative Counsel explained that the bill expanded the pool of people who could petition for
15
expungement to include people whose underlying conviction is based on conduct that is no longer

criminal, or based on possession of a regulated drug in an amount that is no longer considered

criminal. Id. A committee member asked whether (B)(i)(II) addressed marijuana

decriminalization, and Legislative Counsel confirmed that it did. Id. The member then asked what

other decriminalized conduct the bill addressed pursuant to (B)(i)(I), and Legislative Counsel

indicated that the Legislature had decriminalized some fish-and-game violations; she cited

carrying a firearm during bow season as an example. Id. In the ensuing discussion, some members

questioned why (B)(i)(II) was necessary, and whether it was encompassed within the more general

language of (B)(i)(I). Id. Upon confirmation by Legislative Counsel that (B)(i)(I) would reach

possession of marijuana in an amount less than one ounce, a member suggested that it might make

sense to simply remove (B)(i)(II), and instructed Legislative Counsel to “bookmark” the issue. Id.

Throughout the discussion, Legislative Counsel described the new category of expungeable

offenses as those for conduct that had been “decriminalized.”

¶ 32. Two days later, after the House Judiciary Committee had taken testimony from

various stakeholders, the Committee voted to propose an amended version of S.115. The House

itself ultimately agreed to the Judiciary Committee proposal of the amendment and passed the bill

with the proposed amendments. See H. Jour. 1011, 2015-2016 Gen. Assem., Bien. Sess. (Vt. Apr.

10, 2015). As amended, the relevant section of the bill authorized expungement pursuant to

§ 7602(a)(1)(B) 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.” S.115, § 2 (as passed by House with

proposal of amendment, Apr. 10, 2015), https://legislature.vermont.gov/Documents/2016/Docs

/BILLS/S-0115/S-0115%20House%20Proposal%20of%20Amendment%20Official.pdf [https://

perma.cc/PD6S-CT8N]. In other words, as forecast in the original walk-through, the House

consolidated the two subdivisions into a single, broad provision. It retained language providing

for a special burden of proof and presumption as to the amount of a regulated drug in possession

16
in connection with “petitions filed pursuant to subdivision (a)(1)(B) of this section for a conviction

for possession of a regulated drug . . . in an amount that is no longer prohibited by law or for which

criminal sanctions have been removed.” Id.

¶ 33. Because the Senate did not concur in the House proposal of amendment, the

respective bodies appointed a conference committee. The “side-by-side” comparison of the House

and Senate versions of the bill that was prepared by Legislative Counsel and presented to the House

and Senate Conference Committee noted the respective chambers’ different language in

§ 7602(a)(1) and explained the House amendment as follows: “House version distills (B)(i)(I) and

(II) into (B) and omits (B)(i)(II) as encompassed within (B).” Legislative Counsel, 2015-2016

Gen. Assem., S.115 (expungement) – Comparison of House & Senate Versions (May 2015),

https://legislature.vermont.gov/Documents/2016/WorkGroups/House%20Judiciary/Bills/S.115/C

ommittee%20of%20Conference/S.115~Brynn%20Hare~Side-by-side%20Comparison%20of%

20House%20and%20Senate%20Versions~5-5-2015.pdf [https://perma.cc/AKE4-AT9F]. This

explanation of the significance of the House amendment from Legislative Counsel who advised

both House and Senate Judiciary Committees reinforces that the House amendment reflected a

recognition that the category of convictions for possession of regulated drugs “in an amount that

is no longer prohibited by law or for which criminal sanctions have been repealed” is a subset of

the broader category of convictions “for which the underlying conduct is no longer prohibited by

law or the criminal sanctions have been repealed,” and that the two proposed subdivisions could

be consolidated. The Conference Committee’s final report, passed by both the House and Senate

and enacted into law, left the House amendment of this subdivision intact. There is no hint in the

legislative record of any intent to distinguish the universe of convictions based on possession of

regulated drugs in an amount no longer criminalized and the more general universe of convictions

for conduct no longer criminalized—other than with respect to the burden of proof and

presumption set forth in § 7602(e). And the record refutes the suggestion that the revised language

17
in the consolidated provision—referencing “an offense for which the underlying conduct is no

longer prohibited by law or designated as a criminal offense”—was intended to have any different

meaning from the clearer initial wording—“an offense for which the underlying conduct is no

longer prohibited by law or the criminal sanctions have been repealed.”

¶ 34. This legislative history reinforces what is apparent from the text itself—the drafting

of § 7602(a)(1)(B) may be inelegant, but its purpose was to ensure that the expungement statute

would reach both convictions for conduct that has been decriminalized, and convictions for

conduct that has been legalized. Significantly, this historical analysis does not rely on assertions

by advocates or stakeholders in the context of their testimony before a legislative committee. It is

based on the neutral oral and written explanations presented to the House Judiciary Committee

and the House and Senate Conference Committee by their counsel relating to the specific drafting

question that now confounds this Court, and it offers direct evidence of the reason the House

amended the original, and undisputedly clear, language of the original Senate bill. See In re Dep’t

of Bldgs. & Gen. Servs., 2003 VT 92, ¶ 14, 176 Vt. 41, 838 A.2d 78 (“In relying upon legislative

history . . . we must be cognizant of the quality of the evidence of legislative intent.”).

¶ 35. Against this compelling textual, structural, and historical evidence, the majority’s

reasoning is unpersuasive. The upshot of the majority’s grammatical deconstruction is that

sometimes “or” can mean “and.” That may be correct. But usually “or” means “or.” To determine

which meaning applies in a given context, we have to take a broader look at the text, structure, and

history of the statute, as set forth above. Likewise, as noted above, the majority’s attempt to

reconcile the very clear language of § 7602(e) with its divergent construction of § 7602(a)(1)(B)

doesn’t jibe with the statutory structure and language that require that the universe of expungeable

convictions described in the two subsections be the same. Finally, the majority’s emphasis on the

social harms of absconding from furlough is misplaced. Pursuant to the majority’s reasoning,

expungement is unavailable for the entire gamut of convictions based on conduct now

18
decriminalized but not legalized. For example, a past conviction for operating a motor vehicle

with a suspended license after the suspension period expired and prior to the reinstatement of the

license would not be expungeable because, even though that conduct is no longer a crime, it is still

a civil violation. See State v. Flagg, 160 Vt. 141, 142, 624 A.2d 864, 865 (1993) (recognizing that

new legislation reclassified defendant’s offense of operating motor vehicle with suspended license

after his suspension period had expired and prior to reinstatement of his license from criminal

misdemeanor to a civil traffic violation by enacting amendment to 23 V.S.A § 674 and new section,

§ 676). The fact is, for a period of eighteen months, the Legislature viewed absconding as conduct

unworthy of criminal penalties, even though it remained unlawful, much like possession of one

ounce or less of marijuana from July 1, 2013, to July 1, 2018. See 2013, No. 76, § 13 (establishing

effective date for relevant sections of Act); 2017, No. 86 (Adj. Sess.), § 18 (same).

¶ 36. For these reasons, I part ways with the majority’s construction of the statute. I

would remand for the trial court to determine whether “expungement of the criminal history record

serves the interests of justice.” 13 V.S.A. § 7602(b)(1)(D).5

Associate Justice

5
The State’s suggestion that petitioner is ineligible for expungement because he has not
“completed supervision” for the offenses he seeks to have expunged is unpersuasive. The State
analogizes this circumstance to a petition for post-conviction relief, and argues that because
petitioner is now being held without bail on account of this prior conviction, he has not “completed
any sentence or supervision for the offense” as required by the expungement statute. 13 V.S.A.
§ 7602(d)(1). The analogy is misplaced. Whether someone has “completed any sentence or
supervision” for an offense for purposes of the expungement statute is an entirely different
question from whether the person is “in custody under sentence” for purposes of the post-
conviction relief statute. Compare 13 V.S.A. § 7602(d)(1) with § 7131.

Likewise, petitioner’s argument that this court should find as a matter of law that
expungement of petitioner’s criminal history would serve the interests of justice—a required
finding for an expungement determination—is unpersuasive. This is a determination for the trial
court to make in the first instance.
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