Opinion
C.A. No. 09X-07-004 WLW.
Submitted: February 26, 2010.
Decided: May 5, 2010.
Upon Petitioner's Motion for Reconsideration of Commissioner's Order. Granted.
Andre M. Beauregard, Esquire of Brown Shiels O'Brien, LLC, Dover, Delaware; attorneys for Petitioner.
Daniel M. Stevenson, Esquire, Department of Justice, Dover, Delaware; attorneys for the Respondent.
ORDER
Upon consideration of Petitioner Jason L. Harvey's ("Harvey") Motion for Reconsideration of Commissioner's Order, it appears to the Court that:
1. Harvey entered into a Probation Before Judgment ("PBJ") Agreement on April 10, 2006. At that time, 11 Del. C. § 4378 ("Section 4378") did not exist. Harvey was, therefore, permitted to seek to have his record expunged at any time after completing the requirements of his PBJ Agreement.
Pursuant to 11 Del. C. § 4378, "the police records and court records relating to any charge resolved by probation before judgment . . . shall not be expunged unless at least 5 years have elapsed from the date on which the defendant was discharged from probation." This statutory section became effective October 15, 2008.
2. Harvey filed a petition to expunge his record on May 6, 2009. On September 10, 2009, a Hearing before the Commissioner was scheduled to determine whether Harvey's record could be expunged. On October 15, 2008, the Commissioner held that, pursuant to Section 4378, Harvey was barred from filing for an expungement until after five years from the date he entered into his PBJ Agreement. The Commissioner allegedly noted that Harvey's petition would have been granted had he submitted it before October 15, 2008.
For Harvey, this will be April 10, 2011.
3. Harvey filed this Motion for Reconsideration of Commissioner's Order on September 29, 2009. Harvey maintains that he was grandfathered into the previous statute which did not have any time limitations for expungement. Harvey further asserts that applying Section 4378 to his situation would make it an impermissible ex post facto law.
4. The State of Delaware (the "State") contends that Section 4378 applies to all PBJ Agreements unless the State Legislature expressly provides otherwise. The State further advances that Section 4378 is not an ex post facto law because it is procedural in nature.
5. Superior Court Civil Rule 132 ("Rule 132") provides, in pertinent part, that, "any party may serve and file written objections to the Commissioner's order which set forth with particularity the basis for the objections." Rule 132 further provides that, "[a] judge may reconsider any hearing or pretrial matter . . . only where it has been shown on the record that the Commissioner's order is based upon findings of fact that are clearly erroneous, or is contrary to law, or is an abuse of discretion."
Super. Ct. Civ. R. 132(a)(3)(ii).
Super. Ct. Civ. R. 132(a)(3)(iv).
6. A statute will not be applied retroactively absent a clear legislative intent to do so. When applying a statute, "the fundamental rule is to ascertain and give effect to the intent of the legislature." Consequently, even where a statute is silent on the issue of retroactive application, it may still be applied retroactively when it is clear that the Legislature intended such an application.
Chrysler Corp. v. State, 457 A.2d 345, 351 (Del. 1983) (noting "to give an act a retrospective operation would be contrary to well settled principles of law applicable to the construction of statutes unless it be plainly and unmistakably so provided by the statute"); see also, Hubbard v. Hibbard Brown Co., 633 A.2d 345, 354 (Del. 1993) ("Delaware courts have recognized the general principle that statutes will not be retroactively applied unless there is a clear legislative intent to do so"); State v. Paten, 1999 WL 1227612, at *2 (Del. Super.) ("[g]enerally a statute will not be applied retroactively unless it appears that the General Assembly clearly intended that it be so applied").
Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1246 (Del. 1985).
See Marcucilli v. Boardwalk Builders, Inc., 2000 WL 703333, at *5-6 (Del. Super.); but see, Transamerica Corp. v. Reliance Ins. Co., Del. Super. C.A. No. 94C-10-221, Cooch, J. (Aug. 30, 1995) (Mem. Op.) (holding that the Court will not look beyond the clear language of the statute where the statute itself is silent on the issue of retroactive application).
7. The State acknowledges that Section 4378 is silent on the issue of retroactive application. Therefore, absent a clear legislative intent to apply the statute retroactively, it must be applied prospectively. According to the court in Cortese v. State, the purpose of the five year waiting period in Section 4378 is to prevent individuals from abusing the PBJ process.
See Resp't Reply Mem. ("Respondent contents [sic] that it would be wrong to assume that the Legislature intended [retroactive application] when the statute is silent on the matter").
2009 WL 3531852, at *3 (Del. Super.); see also, 11 Del. C. § 4218(d) (providing that an individual may not take advantage of the PBJ section when that individual "has previously been admitted to probation before judgment for any offense within 5 years of the current offense").
8. The Court is not convinced that this legislative purpose and the language of Section 4378 clearly indicate that it must be applied retroactively. The Court, therefore, interprets Section 4378 as applying to PBJ Agreements occurring on or after October 15, 2008. Because Harvey entered into a PBJ Agreement on April 10, 2006, he is not required to wait five years to have his record expunged, pursuant to Section 4378.
9. Because this Court has concluded that Section 4378 does not apply retroactively, Harvey's contention that a retroactive application of Section 4378 would constitute an ex post facto law is moot.
10. For the foregoing reasons, Petitioner Harvey's Motion to Reconsider the Commissioner's Order is GRANTED. Petitioner may file for expungement.
IT IS SO ORDERED.