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Fuller v. State

Supreme Court of Delaware

October 21, 2014

DANA FULLER, Defendant-Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff-Below, Appellee

Submitted September 17, 2014

Case Closed November 7, 2014.

Court Below: Family Court in the State of Delaware in and for New Castle County. Cr. Nos. 0606013475 and 0405021269.

Dana Fuller, Defendant Below-Appellant, Pro se.

Achille C. Scache, Esquire, Doroshow, Pasquale, Krawitz & Bhaya, Wilmington, Delaware and Kara M. Swasey, Esquire (argued), Wilmington, Delaware, Amicus Curiae by Court Appointment.

Morgan T. Zurn, Esquire, Department of Justice, Wilmington, Delaware, for Appellee.

Before STRINE, Chief Justice, HOLLAND, RIDGELY, and VALIHURA, Justices; and DAVIS, Judge,[*] constituting the Court en Banc. VALIHURA Justice, dissenting, with DAVIS, Judge, joining.

OPINION

STRINE, Chief Justice, for the majority:

Dana Fuller appeals a Family Court decision denying her petition for expungement of her juvenile record because she had committed three traffic violations as an adult. Section 1018 of the Delaware Code allows a court to grant a petition for expungement of a juvenile record " provided the petitioner has no other subsequent adjudication of delinquency or adult conviction." [1] In this case, the Family Court

Page 818

held that Fuller's violations of Title 21, which governs motor vehicles, were " subsequent . . . adult convictions" (" subsequent adult convictions" )[2] within the meaning of § 1018. But the Family Court has reached different conclusions in other cases as to whether a traffic violation under Title 21 of the Delaware Code is a subsequent adult conviction that precludes expungement of a juvenile record.[3] Consistent with a prior Family Court decision, Fuller now argues that Title 21 offenses are not " subsequent adult convictions" under § 1018 and the denial of her expungement was therefore erroneous.

After careful consideration, we hold that a " subsequent adult conviction" is a later conviction only for a crime in violation of Title 4, 7, 11, 16, or 23 of the Delaware Code, and does not include a violation of Title 21. This interpretation is most faithful to the plain language of § 1018, which uses the general term " subsequent" -- i.e., later -- " criminal conviction" in a sentence that earlier refers to crimes set forth in Titles 4, 7, 11, 16, or 23, but not Title 21. Moreover, § 1015, the provision that sets forth a specific application process for expungement, requires the use of a database that does not include Title 21 offenses, but does include offenses under Titles 4, 7, 11, 16, or 23. Our interpretation also best reflects the express statutory purpose of " protect[ing] children and citizens from unwarranted damage which may occur as a result of a juvenile arrest record, even if the arrest resulted in an adjudication of delinquency." [4] Accordingly, we reverse the Family Court's decision and hold that Title 21 motor vehicle violations do not constitute " subsequent adult convictions" for purposes of expungement of a juvenile record.

I. FACTUAL AND PROCEDURAL HISTORY

The relevant facts from the record below are undisputed. Fuller was twice adjudicated delinquent in Family Court. The first offense occurred when Fuller was 12 years old, and she pled delinquent in Family Court to one count of criminal mischief on August 13, 2004.[5] For a second offense committed when she was 14 years old, Fuller pled delinquent to one count of theft on April 29, 2008.[6]

Between the ages of 18 and 21, Fuller committed three motor vehicle violations. First, on November 14, 2009, Fuller received a ticket for lacking headlamps on her car in violation of 21 Del. C. § 4333.[7] Second, Fuller was found guilty of Careless Driving in 2012 for an offense committed in 2010.[8] Finally, Fuller was found guilty of Speeding in Excess of 25 MPH in a Residential District in January 2013.[9]

Page 819

In a petition dated April 15, 2013, Fuller sought discretionary expungement of her juvenile record under 10 Del. C. § 1018.[10] The State did not oppose her petition. But the Family Court denied the petition on June 14, 2013 because Fuller had been convicted of three Title 21 traffic violations as an adult.[11] The Family Court held that these violations were " subsequent adult convictions" within the meaning of § 1018 that precluded expungement.[12] Fuller appealed, arguing that these traffic violations should not have been considered " subsequent adult convictions" under § 1018.

II. THE JUVENILE EXPUNGEMENT STATUTE

The General Assembly has set forth the procedures governing applications for the expungement of a juvenile record in § § 1014-1019 of the Delaware Code. We refer to these sections collectively as the " juvenile expungement statute." A person may seek expungement of her juvenile record under 10 Del. C. § 1017 or 10 Del. C. § 1018, depending on the nature of the juvenile record.[13] Both § 1017 and § 1018 allow the Family Court to grant a petition for expungement provided the petitioner has no " subsequent adjudication of delinquency or adult conviction."

Section 1016 defines " subsequent adjudication of delinquency or adult conviction" as " an adult conviction resulting from the commission of a separate and distinct offense that occurs after a prior adjudication of delinquency" " unless the context otherwise requires." It does not define " offense" or " adult conviction," nor does it refer to any other part of the Delaware Code. Likewise, § 1016(5) defines a " prior adjudication of delinquency" as " an adjudication of delinquency entered by the Court, that occurs prior to the commission of a separate and distinct offense" without defining " offense" or " adjudication of delinquency" or referring to any other part of the Delaware Code.

Section 1015 of the juvenile expungement statute requires the person seeking expungement to file a petition with the Family Court.[14] The petition must include a copy " of that petitioner's criminal history as maintained by the State Bureau of Identification." [15] If the expungement petition meets the requirements of § 1018(a), the Family Court's inquiry shifts to whether 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." [16] If the Court so finds, it may grant the expungement request. The statute incorporates a rebuttable presumption that " juvenile arrest records cause a manifest injustice for the petitioner." [17] This presumption accords with the Delaware General Assembly's Statement of Policy within the juvenile expungement statute, which reads:

The General Assembly finds that juvenile arrest records are a hindrance to a person's present and future ability to

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obtain employment, obtain an education, or to obtain credit. This subchapter is intended to protect children and citizens from unwarranted damage which may occur as a result of a juvenile arrest record, even if the arrest resulted in an adjudication of delinquency.[18]

That policy presumption may well have influenced the State's position in the case below. The State did not oppose Fuller's petition before the Family Court. But the Family Court nonetheless denied the request, feeling obligated to do so by its reading of the juvenile expungement statute. In its decision to deny Fuller's petition, the Family Court adopted the reasoning of a prior decision of that court in M.S. v. State, which concluded that a motor vehicle offense constitutes a " subsequent adult conviction" precluding expungement under Title 10.[19]

In interpreting the juvenile expungement statute in this way, M.S. v. State relied on a dictionary definition of " conviction," which is a " judgment . . . that a person is guilty of a crime." [20] The Family Court then compared that general definition to the general definition of a criminal conviction found in the Delaware Code, which is set forth in 11 Del. C. § 233. Because § 233 states that a " crime" or " offense" is an act punishable by a fine or imprisonment, and because Title 21 offenses are punishable by a fine or imprisonment, M.S. v. State concluded that Title 21 violations committed after the age of majority are " subsequent adult convictions." [21] The decision also noted that certain violations in Title 21 are explicitly designated as civil, and that the General Assembly's determination that the remainder are criminal under the meaning of § 233 could therefore not be seen as inadvertent.[22]

The Family Court, however, has also reached a different conclusion on this issue. In C.M. v. State, the Family Court held that the petitioner's adult speeding violation did not constitute a " subsequent adult conviction" for purposes of § 1017 because a contrary interpretation would lead to an unreasonable result.[23] In so holding, the Family Court compared § 1017 with the statutes that provide for discretionary expungement of an adult record, all of which allow persons to seek expungement despite having convictions for other criminal offenses.[24] Thus, under the M.S. court's interpretation of the juvenile expungement statute, a person with a traffic violation could have her adult record expunged in the discretion of the Superior Court, but the same traffic violation would serve as a total bar to the expungement of her juvenile record. The Family Court concluded that this reading of the statute was unreasonable in light of the General Assembly's express intent " to treat juveniles and juvenile arrest records

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in a relatively lenient manner for expungement purposes. . . ." [25]

III. TITLE 21 VIOLATIONS ARE NOT " SUBSEQUENT ADULT CONVICTIONS" FOR PURPOSES OF THE JUVENILE EXPUNGEMENT STATUTE

On appeal, the State embraces the reasoning of the M.S. decision and argues that the denial of Fuller's request was correct. Fuller argues that we should instead adopt the contrary position taken in the C.M. case. We, of course, must reach our own de novo determination of which interpretation is correct.[26]

As a practical matter, we do not believe that the bare term " subsequent adult conviction" has only one accepted meaning. As the Family Court did in M.S., it is of course possible to go to Black's Law Dictionary and § 233 of Title 11 and come out with a sensible conclusion that a traffic violation is a " criminal conviction" as a general matter of Delaware law. But we are not called upon to determine whether the term " conviction" in § 233 of Title 11 includes violations of Title 21. Instead, we are asked to determine what a " subsequent adult conviction" means in the context of the juvenile expungement statute.[27] In that regard, it is relevant that most Americans who have gotten a speeding ticket or some other motor vehicle violation at some point in their adult lives -- i.e., most Americans -- would not consider themselves to have suffered an adult conviction. They would not consider themselves " convicts." [28]

Our starting point in statutory interpretation is the language of the statute itself.[29] The juvenile expungement statute does not define " subsequent adult conviction" beyond stating that " unless the context otherwise requires," it is an " adult conviction resulting from the commission of a separate and distinct offense. . . ." [30] Notably, " adult conviction" is not a criminal law term of art with a precise meaning. It is in fact a rather loose usage. Moreover, the statute specifically requires a consideration of the context. Thus, to determine what the General Assembly meant when it used the term " subsequent adult conviction" in the juvenile expungement statute, it is critical to examine how it is used in the context in which it was to be given meaning, i.e., within § 1018 itself.[31]

Section 1018(a) provides:

Page 822

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 child 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.[32]

Section 1018 thus delineates the types of offenses that count as " adjudications of delinquency" for purposes of the statute; these include misdemeanors or violations of " Title 4, 7, 11, 16 or 23" or equivalent violations of local ordinances. Importantly, Title 21 violations are not included in the list of offenses that constitute " adjudications of delinquency."

Section 1018 then states that the petition may be granted " provided that the petitioner has no other subsequent adjudication of delinquency or adult conviction. . . ." " [O]ther subsequent adjudication . . . or adult conviction" should not be read in isolation from the first part of the sentence.[33] The words " other" and " subsequent" indicate that the reader should refer back to the types of offenses identified earlier in the sentence. The statute thus limits the types of " adjudications of delinquency" and " adult convictions" that are relevant for juvenile expungement to those offenses that were previously delineated. Put simply, a " subsequent adult conviction" is best read as referring to a later conviction for a crime in violation of Title 4, 7, 11, 16, or 23. This conclusion is strengthened by the reality that § 1018 also uses the term " prior adjudication of delinquency" and that reference back is also to a category of offenses not including Title 21 violations.

Furthermore, § 1018 does not permit Title 21 offenses to be expunged at all.[34] The legislative choice to carve out Title 21 offenses from § 1018 strongly supports our interpretation. Under the maxim of statutory interpretation " expression of the one is exclusion of the other" (in Latin, expressio unius est exclusio alterius ), we must honor the express legislative decision to omit specific crimes from a comprehensive list.[35] The statute's categorical exclusion of Title 21 offenses thus supports the inference that the relevant meaning of " subsequent adult conviction" was intended to encompass only the crimes set forth in the titles mentioned in § 1018. That inference is bolstered in another important way by the specific procedure the juvenile expungement statute sets up for applications.

Page 823

Section 1015(b) requires a juvenile petitioner to attach " a copy of that petitioner's criminal history as maintained by the State Bureau of Identification" to her petition for expungement.[36] Section 1015 then directs the Family Court to consider the petition on the basis of the criminal history required to be filed with the petition. Title 21 violations are not listed on these records.[37] For example, Fuller's criminal history as maintained by the State Bureau of Identification only lists her juvenile charges for theft and criminal mischief, both of which are Title 11 offenses, but does not include her adult violations of Title 21.[38]

The General Assembly's decision to require State Bureau of Identification records as part of the juvenile expungement petition makes sense if " subsequent adult convictions" mean only crimes set forth in Titles 4, 7, 11, 16, and 23. Title 21 violations cannot be expunged under § 1018. If these violations were relevant to the Family Court's decision to grant an expungement request, the court would need to consider a criminal record database other than the database selected by the legislature in the juvenile expungement statute. If Title 21 violations were not disqualifying " subsequent adult convictions," however, the Family Court would only need to consider the petitioner's criminal history as maintained by the State Bureau of Identification, the only record database identified in the statute.[39]

In so interpreting the juvenile expungement statute, we recognize that other of its subsections use the terms " subsequent" and " prior" in sentences that have a narrower category of offenses than are covered in § 1018.[40] By reading the term " subsequent adult convictions" to cover the broadest possible category of offenses specifically identified in the juvenile expungement statute, which are also those that are listed on the State Bureau of Identification report required to be submitted by the petitioner when seeking expungement, we give the term " subsequent adult conviction" the most expansive definition consistent with the express terms of the juvenile

Page 824

expungement statute. As to this point, it bears emphasis that the juvenile expungement statute only mentions Title 21 offenses in one section, § 1018(g), where it emphasizes that such offenses cannot be expunged under the statute.

Lastly, this interpretation is most consistent with the policy expressly stated within the statute itself: " protect[ing] children and citizens from unwarranted damage which may occur as a result of a juvenile arrest record, even if the arrest resulted in an adjudication of delinquency." [41] Reading " subsequent adult conviction" to only encompass convictions for crimes in violation of Titles 4, 7, 11, 16, and 23 is the interpretation most faithful to this statutory purpose.[42] And as the Family Court found in C.M. v. State, this interpretation also avoids an anomaly that would allow a person who committed crimes as an adult to get a discretionary expungement of prior criminal convictions even if she had subsequent Title 21 motor vehicle violations, but deny an expungement in identical circumstances to someone who sought to expunge crimes committed while still not of the age when society permits her to vote.

In so holding, we note that we are not suggesting that Title 21 violations are irrelevant to the expungement process. As with other legitimate factors bearing on the decision to expunge, the Family Court may consider Title 21 traffic violations as evidence that the continued existence of the juvenile arrest record does not constitute a manifest injustice to the petitioner,[43] and thus retains the discretion to decide whether a violation of Title 21 is sufficiently serious to bar expungement. But the existence of a Title 21 motor vehicle violation is not a " subsequent adult conviction" that acts as a total bar to a grant of expungement.

* * *

Our esteemed colleagues have crafted a thoughtful dissent that asserts that we have strained to interpret the juvenile expungement statute to avoid what the dissent admits is the " harsh" consequence of its own contrary interpretation of the statute. We respectfully disagree.

Going further, the dissent argues that our interpretation renders the juvenile expungement statute absurd. The reason for that is that the dissent believes that there are some offenses within Titles 4, 7, 11, 16, and 23 that are as unworthy as speeding tickets of acting as a total bar to expungement, such as the boat ramp violation under 23 Del. C. § 2125(b) the dissent unearthed in the Code. But reading the juvenile statute to bar expungement for youth offenders who as adults get a speeding

Page 825

ticket or another similar violation in Title 21 -- something that eventually happens to most adult drivers -- does not diminish the absurd result that the dissent conjures up, involving the undoubtedly much rarer boat ramp violation. Rather, accepting the dissent's interpretation would expand the impact of that result on youth offenders.

At the same time, the dissent voices a concern about our interpretation that comes from a different direction. The dissent argues that our interpretation would permit a discretionary expungement if a petitioner had committed an offense outside of Titles 4, 7, 11, 16, or 23 that the dissent believes to be as serious as those covered by those Titles. But, there is nothing absurd about excluding non-Title 4, 7, 11, 16, and 23 offenses from categorically barring a juvenile expungement. That is the reading most consistent with § 1014, which expressly describes the legislative purpose behind the juvenile expungement statute. Such offenses can still act as a barrier to expungement based on a case-specific judgment by the Family Court.

Therefore, rather than " straining," our interpretation: (i) is rooted in the text of the juvenile expungement statute itself, which never hints that Title 21 violations have any relevance to the statute and which uses an application process requiring a report that omits such violations; [44] (ii) considers the context in which that text is used, which is what the statute requires us to consider; and (iii) is most faithful to the statute's own stated purpose. By contrast, the dissent itself strains to read the juvenile expungement statute to generate the harsh result about which it complains.

Traditionally, we show respect to the General Assembly and the difficult job it has to do in crafting a complex code of law by endeavoring to interpret its legislation in a reasonable manner that best advances its evident purposes.[45] Courts have long sought to avoid interpretations that produce inequitable results when there is another reasonable reading of the statute.[46] We adhere to that traditional approach.

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Although we conclude that Title 21 offenses do not constitute " subsequent adult convictions" for purposes of the juvenile expungement statute, the good faith disagreement between ourselves and our respected colleagues in dissent highlights the reasons why our trial judge colleagues have struggled to reach agreement on the question before us. It may be that there is more work for our General Assembly to do to make the law clearer,[47] or to make the opportunity to receive an expungement more expansive or restrictive.[48] But giving the law as it is written the most reasonable reading consistent with its express purpose is the duty we owe to the General Assembly as the Branch of government charged with the difficult task of crafting our statutory laws in real time, with limited resources.

IV. CONCLUSION

For these reasons, we reverse the Family Court's decision and hold that Title 21 traffic violations do not constitute " subsequent adult convictions" for purposes of the juvenile expungement statute. Because there was no other basis for denying Fuller's request, her expungement motion should be granted on remand. Accordingly, the judgment of the Family Court is REVERSED.

DISSENT

VALIHURA, Justice, dissenting, with DAVIS, Judge, joining:

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

" [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]

The 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

Page 827

child 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]

Here, 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:
. . . .
(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]

Title 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]

Title 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 expungement.

I 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]

Page 828

The 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.

First, 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]

Second, 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]

Page 829

Third, 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 expungement, 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 21[18] that results in an accident[19] 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.

Fourth, 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

Page 830

the 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]

Fifth, the majority reaches the conclusion that only violations under the titles enumerated in the language of Section 1018(a)(3) should constitute a bar on expungement, 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 redundancy and violate the canon against surplusage[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."

Sixth, 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

Page 831

vehicle 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]

Additionally, 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.

The 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 a 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" under its plain meaning and found that Title 21 traffic violations were " adult convictions." [32] 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 expungement statutes[34] 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

Page 832

reached 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 C.M. 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.

Apart 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]

Section 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 conclusion,

Page 833

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]

Finally, 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.


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