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Supreme Court
No. 2011-52-C.A.
(P2/03-773A)
State                                                                 :
v.                                                                    :
Eileen Morrice.                                                       :
NOTICE:    This  opinion  is  subject  to  formal  revision  before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
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Supreme Court
No. 2011-52-C.A.
(P2/03-773A)
State                                                                                                       :
v.                                                                                                          :
Eileen Morrice.                                                                                             :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
O P I N I O N
Chief Justice Suttell, for the Court.   The defendant, Eileen Morrice, appeals from the
denial of her motion to seal records pursuant to G.L. 1956 § 12-19-19(c) and G.L. 1956 § 12-1-
12.   Specifically, the defendant asserts that the trial justice erred: (1) in finding that the plain and
ordinary meaning of the statute did not entitle the defendant to relief; by refusing to apply § 12-
19-19(c) retroactively;  (2) in finding that the amended provision violates the separation-of-
powers doctrine; and (3) in declining to sever the “shall be exonerated” portion of the statute
from the “shall be sealed” provision.   In a companion case decided by this Court today, we held
that the amendments to § 12-19-19 enacted by the General Assembly in 2010 (P.L. 2010, ch.
128, § 1 and ch. 256, § 1) do not have retroactive application. See State v. Briggs, No. 2011-47-
C.A. (R.I., filed Jan. 11, 2013) (Briggs II).   For similar reasons set forth in this opinion, we
affirm the judgment of the Superior Court.
I
Facts and Procedural History
The record seemingly indicates that Ms. Morrice is a quintessential candidate for a
deferred sentence and the subsequent sealing of records.   In the spring of 2003, she was charged
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with one count of obtaining money under false pretenses over $500.   The complaint alleged that
she obtained $7,837 by submitting unemployment insurance certification forms containing false
information.1   She accepted responsibility for the crime by entering a plea of nolo contendere to
the single count on April 14, 2003 and by agreeing to pay restitution in installments of $130 per
month.   In light of her plea, her sentencing was deferred for a period of five years.   In addition,
there is no dispute that defendant faithfully complied with all the terms and conditions of her
deferred sentence or that she paid off her restitution seven months early.   However, her hope for
the immediate expungement or sealing of her records, or both, was frustrated when this Court
clarified the law in 2007.
In State v. Briggs, 934 A.2d 811, 815-16 (R.I. 2007) (Briggs I), this Court held that the
Superior Court does not have inherent authority to grant expungement upon the completion of a
deferred sentence; rather, a defendant must satisfy the requirements for statutory expungement
under G.L. 1956 § 12-1.3-2.2   The Court further held that, for purposes of expungement, nolo
contendere pleas followed by deferred sentences constitute convictions. Briggs I, 934 A.2d at
816.   Under § 12-1.3-2(b), a first offender may file a motion for expungement five years after the
completion of his or her sentence  (if a misdemeanor) or ten years after the completion of
sentence (if a felony).
1 In a decision issued on November 12, 2010, the hearing justice stated that “[d]efendant entered
a plea of nolo contendere to one count of conspiracy to violate the Controlled Substances Act
and two counts of obtaining a controlled substance by fraud.”   This would appear to be an error.
The criminal complaint refers only to the charge of obtaining money under false pretenses, and
nothing in the record indicates any other charge.
2 General Laws 1956 § 12-1.3-2(a) states:
“Any person who is a first offender may file a motion for the
expungement of all records and records of conviction for a felony
or misdemeanor by filing a motion in the court in which the
conviction  took  place,  provided  that  no  person  who  has  been
convicted of a crime of violence shall have his or her records and
records of conviction expunged.”
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In 2010, the General Assembly amended § 12-19-193 (the deferred-sentence statute) to
include, inter alia, a new subsection (c), which states:
“If  a  person,  after  the  completion  of  the  five                                             (5)  year
deferment period is determined by the court to have complied with
all of the terms and conditions of the written deferral agreement,
then  the  person  shall  be  exonerated  of  the  charges  for  which
sentence  was  deferred  and  records  relating  to  the  criminal
complaint, information or indictment shall be sealed pursuant to
the provision of § 12-1-12.   Further, if any record of the criminal
complaint,  information  or  indictment  has  been  entered  into  a
docket  or  alphabetical  index,  whether  in  writing  or  electronic
information  storage  or  other  data  compilation  system,  all
references to the identity of the person charged by the complaint
shall be sealed.”   Section 12-19-19, as amended by P.L. 2010, ch.
128, § 1 and ch. 256, § 1.
Section 2 of P.L. 2010, chs. 128 and 256 provides that the act “shall take effect upon passage.”
3
General Laws 1956 § 12-19-19 (a) and (b) provide:
“(a) Whenever any person is arraigned before the superior
court and pleads guilty or nolo contendere, he or she may be at any
time sentenced by the court; provided, that if at any time the court
formally defers sentencing then the person and the attorney general
shall enter into a written deferral agreement to be filed with the
clerk of the court.   When a court formally defers sentence, the
court may only impose sentence within five (5) years from and
after the date of the written deferral agreement, unless during the
five (5) year period, the person shall be declared to have violated
the terms and conditions of the deferment pursuant to subsection
(b) of this section in which event the court may impose sentence.
“(b) It shall be an express condition of any deferment of
sentence in accordance with this section that the person agreeing to
said deferment of sentence shall at all times during the period of
deferment keep the peace and be of good behavior.   A violation of
this express condition or any other condition set forth by either the
court or the written deferral agreement shall violate the terms and
conditions of the deferment of sentence and the court may impose
sentence.   The determination of whether a violation has occurred
shall be made by the court in accordance with procedures relating
to violation of probation §§ 12-19-2 and 12-19-14.”
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In  August                                                                                              2010,  Morrice  filed  a  motion  to  seal  under   §  12-19-19(c).    Although
defendant’s motion was entitled “[m]otion to [e]xpunge and [s]eal,” her memorandum in support
of the motion made clear that she sought only to have her records sealed.4
The defendant argued that under the plain and ordinary language of the newly amended
statute, she was eligible to have her records sealed; thus there was no issue of retroactivity.   The
defendant maintained that if the court found that retroactivity was an issue, as a remedial statute
§ 12-19-19 was entitled to retroactive application, and further, that to hold otherwise would lead
to an absurd result.  Finally, defendant argued that because of her lack of criminal history and her
rehabilitation through the successful completion of her deferment, she was entitled to have her
records sealed and that equity required no less.  The state argued that the amended statute should
not be applied retroactively without clear language indicating such a legislative intent, and that,
if applied retroactively, the statute would “constitute an impermissible exercise of judicial power
by the Legislature” and thereby would violate the separation-of-powers doctrine.
The defendant’s motion was heard on November 5, 2010, along with similar motions
filed by a number of persons who also had successfully completed deferred sentences.   The
hearing justice issued a written  “main decision” in one case  (State v. Warzycha,  2010 WL
4682605 (R.I. Super. Nov. 12, 2010)), which was incorporated by reference in the decisions in
the remaining individual cases.   The court denied all of the motions, finding that § 12-19-19
“does  not  include any  clear,  strong language indicating  an intent  that  it  is  to be applied
retroactively nor does it apply retroactively by necessary implication.”   The hearing justice also
4 Although defendant’s brief states clearly that she neither moved for, nor is she seeking, the
remedy of exoneration, at oral argument, defendant stated that she was seeking both exoneration
and sealing.   Because defendant admits that she did not move for exoneration, we deem that
argument waived.
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concluded that the statute created a substantive right, and that its retroactive application would
violate the doctrine of separation of powers.  On November 29, 2010, defendant filed this appeal.
II
Standard of Review
We review questions of statutory construction and interpretation de novo, and “[w]hen
the language of the statute is clear and unambiguous, it is our responsibility to give the words of
the enactment their plain and ordinary meaning.” Mendes v. Factor, 41 A.3d 994, 1002 (R.I.
2012)  (quoting Generation Realty, LLC v. Catanzaro,  21 A.3d  253,  259  (R.I.  2011)).    In
undertaking this responsibility, we are mindful that “[i]t is generally presumed that the General
Assembly ‘intended every word of a statute to have a useful purpose and to have some force and
effect.’” Curtis v. State,                                                                               996 A.2d  601,  604  (R.I.  2010)  (quoting LaPlante v. Honda North
America, Inc., 697 A.2d 625, 629 (R.I. 1997)).   This Court repeatedly has held that “statutes will
be given prospective application unless otherwise provided.”   In re Alicia S., 763 A.2d 643, 646
(R.I.                                                                                                    2000).    Importantly,                                                    “[o]nly when the Legislature, by express language or necessary
implication, manifests its intent that a statute be given retroactive effect, will the courts apply it
retrospectively.” Id. at                                                                                 646-47.    Further,  “we must  ‘consider the entire statute as a whole;
individual sections must be considered in the context of the entire statutory scheme, not as if
each section were independent of all other sections.’” Mendes,  41 A.3d at  1002  (quoting
Generation Realty, LLC,  21 A.3d at  259).   Lastly, “under no circumstances will this Court
‘construe a statute to reach an absurd result.’” Id. (quoting Generation Realty, LLC, 21 A.3d at
259).
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III
Discussion
On appeal, defendant raises three issues.   First, defendant argues that the hearing justice
erred in finding that the plain and ordinary meaning of the amended statute did not entitle
defendant to benefit from it.   Further, defendant contends that the hearing justice erred in ruling
that the 2010 amendments should not be applied retroactively.  Finally, defendant asserts that the
hearing justice erred in failing to sever the “exoneration” remedy from the “sealing” remedy,
thereby avoiding any separation-of-powers issue.
In  reply,  the  state  argues  that  the  hearing  justice  was  correct  in  finding  that  the
amendments should not be applied retroactively because of the absence of clear language or any
necessary  implication  requiring  retroactivity,  and  because  the  amendments  create  new
substantive rights.   Further, the state argues that retroactive application of the 2010 amendments
would  violate  the  separation-of-powers  doctrine,  and  that  the  exoneration  remedy  is  not
severable from the sealing remedy as the statute now is written.
A
Retroactivity
1
Plain and Ordinary Meaning
The defendant argues that the language of  §  12-19-19 is  “crystal clear and entirely
unambiguous” and that it requires the court to seal the records of those defendants who, like Ms.
Morrice,  have  completed  their  deferred  sentence  period,  regardless  of  when  that  deferred
sentence agreement was executed.   She further argues that the 2010 amendments did not change
the conditions of deferred sentences; rather, they merely require the Superior Court to seal the
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records of a person once it has determined that the person has successfully completed his or her
deferred sentence.    Thus,  she contends, the plain  and  ordinary meaning of                      §  12-19-19(c)
commands the Superior Court to consider her compliance with the terms of her deferred sentence
and, if it finds that she did comply, then to seal her records.
This  Court  consistently  has  held  that                                                          “‘statutes  and  their  amendments  are  applied
prospectively,’ absent ‘clear, strong language, or by necessary implication that the Legislature
intended a statute to have retroactive application * * *.’” Rodrigues v. State, 985 A.2d 311, 318
(R.I. 2009) (quoting Ducally v. State, 809 A.2d 472, 474 (R.I. 2002)).
Based upon our de novo review of § 12-19-19, as amended in 2010, we find no “clear,
strong language” directing that the remedies of exoneration and sealing be applied to deferred
sentences entered into prior to the effective date of the amendments.
Arguably, the 2010 amendments to § 12-19-19 did not radically alter the then-existing
practice concerning the deferment of sentences.   Nevertheless, the amendments create a more
formalized  process.    The  General  Assembly  added  two  new  subsections  to                    §  12-19-19.
Subsection                                                                                          (b)  of                                            §   12-19-19  expressly  conditions  any  deferment  of  sentence  upon  the
defendant’s agreement to keep the peace and be of good behavior and clarifies that the court may
impose sentence upon the defendant’s violation of any of the terms and conditions of the
deferment, such violation to be determined “in accordance with procedures relating to violation
of probation §§ 12-19-2 and 12-19-14.”
Section 12-19-19(c) provides for the exoneration of the charges and the sealing of the
records upon successful compliance with all the terms and conditions of the “written deferral
agreement.”    We note that the  2010 amendments revised the term  “written agreement” to
“written deferral agreement.”   Although this change seemingly is minor and technical in nature,
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the fact that the remedies of exoneration and sealing are specifically contingent upon compliance
with  the                                                                                                “written  deferral  agreement”  suggests  that  such  remedies  apply only to  deferred
sentences imposed after the date of amendment.   We reject, therefore, defendant’s contention
that  the  plain  language  of  the  amended  statute  compels  the  sealing  of  her  records—and
presumably the records of all others who have complied with the terms and conditions of
agreements entered into before the 2010 amendments were enacted.
Nor do we discern a need for retrospective application of § 12-19-19(c) by necessary
implication.   On the contrary, the only temporal mandate given by the General Assembly is § 2
of the enacting legislation, which states, “[t]his act shall take effect upon passage.”  As this Court
has previously held, such language,  “[i]n the absence of any express language or implicit
indication that the statutory amendment should be applied retroactively,” indicates an intent
toward prospective application only. In re Alicia S., 763 A.2d at 647.   See also Rodrigues, 985
A.2d at 318 (stating that the Court had previously held that a statute did not apply retroactively
when the statute provided that it did not take effect until its date of passage).   We are satisfied,
therefore, that the plain language of § 12-19-19 as amended in 2010 does not necessarily imply
that the General Assembly intended for subsection (c) to apply retroactively.
2
Legislative Intent
The defendant argues alternatively that the 2010 amendments evince a legislative intent
that they be applied retroactively.   To support this argument, defendant first contends that the
amendments to § 12-19-19 were enacted in direct response to our holding in Briggs I that the
expungement statute was the only available recourse for the expungement of records after the
successful completion of a deferred sentence.   According to defendant, the amendments were
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enacted “to provide an additional avenue of recourse by granting the Superior Court the authority
and jurisdiction to seal deferred sentences under * * * § 12-19-19.”   She also posits that the
General  Assembly was  reacting to  a letter from  the then-Attorney General  Patrick  Lynch
supporting the proposed amendments.   In that letter, Attorney General Lynch wrote that  “a
deferred  sentence  is  a  contractual  agreement  that  the                                          [s]tate  and  the  defendant  enter  into
voluntarily and knowingly.”  From this assertion, defendant draws the conclusion that “the intent
of the legislature was to provide [her] with the benefit of the Attorney General’s promise in order
to wipe her record clean.”
Not surprisingly, the state reads the Attorney General’s letter in an entirely different light,
interpreting his endorsement of the proposed amendments as a way to make “deferred sentences
a more ‘palatable’ sentencing option going forward.”   Although it is quite possible that Attorney
General Lynch’s support of the subject legislation may well have been helpful to its passage, we
decline to place any significance on his letter as an indicator of legislative intent. See State v.
Santos, 870 A.2d 1029, 1032 (R.I. 2005) (“The plain statutory language is the best indicator of
legislative intent.”).
The  defendant  next  contends  that                                                                  §                                                          12-19-19  applies  retroactively  because  it  is
ameliorative and remedial in nature.   This assertion requires us to examine whether the statute is
substantive in nature, or remedial or procedural. See Direct Action for Rights and Equality v.
Gannon, 819 A.2d 651, 658 (R.I. 2003).                                                                “Substantive statutes, which create, define, or regulate
substantive legal rights, must be applied prospectively. * * * In contrast, remedial and procedural
statutes, which do not impair or increase substantive rights but rather prescribe methods for
enforcing such rights, may be construed to operate retroactively.” Id. (quoting Pion v. Bess Eaton
Donuts Flour Co., 637 A.2d 367, 371 (R.I. 1994)).
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The hearing justice found that the amended statute expanded “the universe of people who
are afforded the right to have their criminal records shielded from the public,” and thus created a
substantive right that otherwise was not available.   We agree.   Prior to the 2010 amendments,
expungement was not available to individuals who had committed a crime of violence or who
were repeat offenders. See §  12-1.3-2.   Moreover, § 12-19-19(c) purports to exonerate5 any
person who successfully complies with the terms and conditions of a written deferral agreement
“of the charges for which sentence was deferred.”    Before such amendment was enacted,
however, an individual who had been granted an expungement under § 12-1.3-2 nevertheless
was required to disclose the conviction in application “for a law enforcement agency position,
for admission to the bar of any court * * * for a teaching certificate, * * * or [to be] the operator
or employee of an early childhood education facility * * *.” Section 12-1.3-4(b).   Section 12-19-
19(c), by contrast, contains no such limitation about disclosure and seemingly would make
exoneration and sealing available to those who are not first-time offenders, as well as to those
who have committed a crime of violence.   We conclude, therefore, that although the deferred-
sentence statute  is  remedial  in  nature,  see  Briggs  I,                                            934  A.2d  at  816-17, the addition of
subsection  (c) to                                                                                      §  12-19-19 was a substantive amendment and not entitled to retroactive
application.
3
Absurd Result
Finally, defendant argues that the statute should be interpreted to apply retroactively
because an alternate construction would produce an absurd result. The defendant points to her
5 As the hearing justice noted, “‘[e]xonerate’ has been defined as to ‘clear from accusation or
blame: exculpate.’” State v. Warzycha, 2010 WL 4682605 (R.I. Super. Nov. 12, 2010) (quoting
Webster’s Third New International Dictionary 797 (1961)).
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status as a first-time offender and her compliance with the terms of her deferred sentence
(including, she states, paying off her restitution seven months early) as reasons why she is “the
type of defendant that the [s]tate determined deserves a second chance.”   The defendant asserts
that it would be “illogical” for the General Assembly to have intended the amended statute to
apply to those entering deferred sentence agreements after  2010, but not to those who had
entered agreements prior to the amendment.   The defendant also points to the apparent pre-
Briggs I practice of granting immediate expungement to some individuals upon completion of
their deferred sentences as further proof that to deny her request to seal would be illogical.
Although the state does not disagree that some individuals were in fact granted expungement
pre-Briggs I, it correctly points out that given this Court’s decision in Briggs I, those individuals
might not have been entitled to that relief.
The defendant asserts that if relief is not granted to her under § 12-19-19(c), she will not
receive  the  benefit  of  the  bargain  she  made  when  she  entered  into  the  deferred-sentence
agreement and that she would have “no ability to receive the relief” promised.   We reject this
argument for two reasons.   First, an amendment drafted in 2010 could not serve as the basis of a
bargain entered into in  2003, and the relief offered by §  12-19-19(c) is a different remedy
(exoneration and sealing) from that available in 2003.   Second, defendant may still receive the
relief allegedly promised, albeit in 2018 rather than 2012.   Accordingly, we do not find that
declining to apply § 12-19-19(c) retroactively would reach an absurd result.
B
Separation of Powers
Having determined that the statute may not be applied retroactively, this Court need not
reach the question of whether retroactive application would violate the doctrine of separation of
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powers.  In State v. Warzycha, 2010 WL 4682605, incorporated by reference in the lower court’s
decision in this case, the hearing justice stated, and we agree, that it is unnecessary at this time to
determine whether prospective application would be unconstitutional.   Because no defendant
who entered a deferred-sentence agreement subsequent to the enactment of § 12-19-19(c) will
yet have completed his or her five-year deferment, this issue is not yet ripe for review.   For these
reasons, we will not reach the question of whether the exoneration clause of § 12-19-19(c) is, as
the defendant urges, severable from the sealing clause.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
The record of this case shall be remanded to the Superior Court.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:                                          State v. Eileen Morrice.
CASE NO:                                                No. 2011-52-C.A.
                                                        (P2/03-773A)
COURT:                                                  Supreme Court
DATE OPINION FILED:   January 11, 2013
JUSTICES:                                               Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ.
WRITTEN BY:                                             Chief Justice Paul A. Suttell
SOURCE OF APPEAL:    Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Kristin E. Rodgers
ATTORNEYS ON APPEAL:
For State:  Christopher R. Bush
Department of Attorney General
For Defendant:    Priya N. Lakhi
Director & Supervising Attorney
Criminal Defense Clinic
Juliana McKittrick
Rule 9 Student Attorney

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