People v. Sean Daniel Di Asio

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
December 8, 2022

2022COA140

No. 20CA2096, Peo v. Di Asio — Government — Public Records
— Criminal Justice Record Sealing — Sealing of Records — Plea
Agreements — Waiver

As a matter of first impression, a division of the court of

appeals interprets the 2019 amendment to section 24-72-703(11),

C.R.S. 2022, which prohibits requiring a defendant to waive future

sealing as part of a plea agreement, and holds that it applies

prospectively from its effective date of August 2, 2019. Accordingly,

the amendment does not apply to the defendant’s 2008 plea and the

court’s order denying sealing is affirmed.
COLORADO COURT OF APPEALS 2022COA140

Court of Appeals No. 20CA2096
El Paso County District Court No. 08CR2435
Honorable Jill M. Brady, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sean Daniel Di Asio,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE FREYRE
Lipinsky and Lum, JJ., concur

Announced December 8, 2022

Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General
II, Denver, Colorado, for Plaintiff-Appellee

Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Defendant-
Appellant
¶1 In this record-sealing case, defendant, Sean Daniel Di Asio,

appeals the district court’s order denying his motion to seal his

conviction for obtaining drugs by fraud or deceit, a class 5 felony.

As a matter of first impression, we interpret the 2019 amendment

to section 24-72-703(11), C.R.S. 2022, which prohibits requiring a

defendant to waive future sealing as part of a plea agreement. We

conclude the statute applies prospectively from its effective date of

August 2, 2019, rather than retroactively. Accordingly, we conclude

the amendment does not apply to Di Asio’s 2008 plea agreement

and affirm the court’s order.

I. Background

¶2 In 2008, Di Asio was charged with two felony counts for

distributing and selling prescription drugs using a prescription pad

belonging to his father, a retired physician. He pleaded guilty to

one count of obtaining drugs by fraud or deceit in exchange for the

dismissal of a class 3 felony distribution charge. He also stipulated

to probation conditioned upon his completion of substance abuse

treatment and public service. The plea agreement contained a

provision regarding sealing:

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I expressly agree to waive and give up any right
I may have, now or in the future, to request
that any records related to this case be sealed,
or to have the Court order such sealing,
whether provided by §[sic]24-72-308, §[sic]24-
72-308.5, C.R.S., or any other provision of law.
This waiver also applies to the sealing of any of
my cases that have been disposed of or
dismissed as part of this plea agreement.

The court accepted the plea agreement and sentenced Di Asio to

two years of supervised probation, which he successfully completed

in 2010. Di Asio did not incur any additional charges after his

release from supervision.

¶3 In 2020, Di Asio filed a motion to seal his conviction record.

He argued that his record was eligible for sealing under section 24-

72-706(1)(g), C.R.S. 2022. That statute provides:

At any hearing to determine whether records
may be sealed, except for basic identification
information, the court must determine that the
harm to the privacy of the defendant or the
dangers of unwarranted, adverse
consequences to the defendant outweigh the
public interest in retaining public access to the
conviction records. In making this
determination, the court shall, at a minimum,
consider the severity of the offense that is the
basis of the conviction records sought to be
sealed, the criminal history of the defendant,
the number of convictions and dates of the
convictions for which the defendant is seeking

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to have the records sealed, and the need for
the government agency to retain the records.

Di Asio asserted that the harm to his privacy or the danger of

unwarranted, adverse consequences outweighed the public interest

in retaining public access to the record of his conviction.

Specifically, he noted that, because information regarding his

conviction was publicly available, he had been denied employment

and housing, and he had lost his emergency medical technician

license.

¶4 In a letter attached to the motion, Di Asio’s father expressed

his support of Di Asio’s request, attesting that Di Asio felt remorse

for his past behavior and that he had developed into a “responsible

and mature man” since his conviction.

¶5 The People raised three objections to the motion. First, they

argued that Di Asio had waived his right to seal his conviction

record as part of the plea agreement. Second, they argued that the

recent amendments to section 24-72-703(11) prohibiting such a

waiver as part of a plea agreement did not retroactively apply to Di

Asio’s waiver, and that retroactive application would violate the

contracts clause of the Colorado Constitution. Finally, they argued

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that Di Asio did not meet the criteria for sealing under section 24-

72-706(1)(g) considering the severity of his offense and the public’s

need to be aware of his conviction.

¶6 Di Asio responded that section 24-72-703(11) applied

retroactively to his plea agreement because the retroactivity

language from sections 24-72-705 and 24-72-706, C.R.S. 2022, was

incorporated into section 24-72-703(11) pursuant to the

applicability provision in section 24-72-703(1). He further argued

that applying section 24-72-703(11) retroactively did not violate the

Colorado Constitution.

¶7 At the hearing, Di Asio described the hardships he had

encountered and continued to experience as a result of public

access to the record of his conviction. His father also addressed the

court in support of the motion, and Di Asio provided a letter

supporting sealing from his treating physician. For the first time,

Di Asio also asserted that the People lacked standing to challenge

the constitutionality of the statute. At the court’s request, the

parties filed supplemental briefs addressing the constitutionality of

retroactive application of section 24-72-703(11) and the People’s

standing to assert the same.

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¶8 In a thorough written order, the district court denied Di Asio’s

motion and found that section 24-72-703(11) did not apply

retroactively to invalidate his waiver of the right to seal in his plea

agreement. The court noted that the language of section 24-72-

703(11) “is silent as to retroactivity.” In addition to this silence, the

court observed that two other sections of the criminal justice

record-sealing statutes — sections 24-72-705(1)(c) and 24-72-

706(3) — contain “unequivocal language mandating retroactive

application.” Applying statutory interpretation principles, the court

found that section 24-72-703(11) applied prospectively only and

that if the General Assembly had intended for it to apply

retroactively, “it certainly could have, and would have, said so, as it

did with Sections 705 and 706.” For the same reasons, it rejected

Di Asio’s argument that that the retroactivity language in sections

24-72-705 and 24-72-706 was incorporated into section 24-72-

703(11).

¶9 Further, the court explained that section 24-72-703(11)

“prohibits defendants from being required to waive their right to

request sealing as a condition of a plea agreement for all plea

agreements entered on or after the effective date of the statute; i.e.,

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August 2, 2019.” By contrast, the court explained that sections 24-

72-705(1)(c) and 24-72-706(3) permit sealing “in eligible cases (not

all cases) before the effective date of the amendments.” Thus, the

court reasoned that a plea agreement containing a waiver provision

entered before August 2, 2019, is not an eligible case under

sections 24-72-705 and 24-72-706. The court denied the motion

and declined to address whether Di Asio satisfied the criteria for

sealing under section 24-72-706(1)(g) or whether section 24-72-

703(11) violated the contracts clause of the Colorado Constitution.

II. Record Sealing

¶ 10 Di Asio contends the district court misconstrued section 24-

72-703(11) as applying prospectively only and, thus, erroneously

found he was ineligible for sealing under section 24-72-706(1)(b)(III)

because he waived the right to seal as part of the plea agreement.

He also contends that there is no constitutional problem with

retroactive application of section 24-72-703(11), and that the People

lack standing to assert their constitutional argument.

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¶ 11 We conclude that section 24-72-703(11) applies prospectively

only. Therefore, we do not address Di Asio’s other contentions.1

Developmental Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008)

(“[T]he principle of judicial restraint requires us to ‘avoid reaching

constitutional questions in advance of the necessity of deciding

them.’” (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485

U.S. 439, 445 (1988))).

A. Standard of Review and Applicable Law

¶ 12 Statutory interpretation is a question of law that we review de

novo. Finney v. People, 2014 CO 38, ¶ 12. In interpreting a

statute, “our focus is on legislative intent, and we construe the

statute as a whole, giving consistent, harmonious, and sensible

effect to all of its parts.” City & Cnty. of Denver v. Dennis, 2018 CO

37, ¶ 12. Our statutory interpretation jurisprudence requires that

we reach a “reasonable result consistent with the General

Assembly’s intent,” Sky Fun 1 v. Schuttloffel, 27 P.3d 361, 370

(Colo. 2001), and that, when possible, we interpret “a provision

1 We note that the People’s constitutional arguments were not
included as a basis for the district court’s order, nor did the People
renew those arguments on appeal.

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existing as part of a comprehensive statutory scheme . . . to

harmonize the whole,” Frank M. Hall & Co. v. Newsom, 125 P.3d

444, 448 (Colo. 2005).

¶ 13 To determine the legislature’s intent, we look first to the plain

language of the statute. Huffman v. City & Cnty. of Denver, 2020

COA 59, ¶ 6. We give statutory language its ordinary meaning

according to the rules of grammar and common usage, id. at ¶ 8,

and where the statutory language is clear and unambiguous, we

apply the plain and ordinary meaning of the provision, Trujillo v.

Colo. Div. of Ins., 2014 CO 17, ¶ 12. “We do not add or subtract

words from the statute, and if the language is unambiguous, we

‘give effect to its plain and ordinary meaning and look no further.’”

Dennis, ¶ 12 (quoting Smokebrush Found. v. City of Colorado

Springs, 2018 CO 10, ¶ 18). Furthermore, “[w]e avoid

interpretations that ‘defeat the obvious intent of the legislature,’ as

well as interpretations that lead to illogical or absurd results.”

Huffman, ¶ 8 (quoting Klinger v. Adams Cnty. Sch. Dist. No. 50, 130

P.3d 1027, 1031 (Colo. 2006)).

¶ 14 “Statutory language is unambiguous if it is susceptible of only

one reasonable interpretation.” Montezuma Valley Irrigation Co. v.

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Bd. of Cnty. Comm’rs, 2020 COA 161, ¶ 20. “The plainness or

ambiguity of statutory language is determined by reference to the

language itself, the specific context in which that language is used,

and the broader context of the statute as a whole.” People v. Diaz,

2015 CO 28, ¶ 13 (citation omitted).

¶ 15 Absent express legislative intent to the contrary, we presume a

statute only operates prospectively, meaning it solely applies to

events occurring after its effective date. § 2-4-202, C.R.S. 2022; In

re Estate of DeWitt, 54 P.3d 849, 854 (Colo. 2002). To overcome

this presumption, a statute must reveal a clear legislative intent

that it be applied retroactively. Pollock v. Highlands Ranch Cmty.

Ass’n, 140 P.3d 351, 354 (Colo. App. 2006).

¶ 16 Colorado’s criminal record-sealing statutes are contained in

sections 24-72-703 to 24-72-710, C.R.S. 2022. Section 24-72-703

contains general provisions that apply to “sealing of arrest and

criminal justice records pursuant to sections 24-72-704 to 24-72-

710[, C.R.S. 2022].” § 24-72-703(1). Sections 24-72-704 through

24-72-710 apply to sealing of various categories of criminal records.

¶ 17 The General Assembly amended the criminal record-sealing

statutes in 2019 and added subsection (11). Ch. 295, sec. 1, § 24-

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72-703(11), 2019 Colo. Sess. Laws 2737-38. As relevant here,

section 24-72-703(11) provides: “A defendant shall not be required

to waive his or her right to file a motion to seal pursuant to the

provisions of this section as a condition of a plea agreement in any

case.” This provision became effective on August 2, 2019. Sec. 8,

2019 Colo. Sess. Laws at 2748.

¶ 18 Additionally, section 24-72-706(1)(b)(III) provides:

If the offense is a class 4, class 5, or class 6
felony, a level 3 or level 4 drug felony except a
level 4 drug felony for a conviction pursuant to
section 18-18-403.5(2.5), or a class 1
misdemeanor, the motion [for the sealing of
the conviction records] may be filed three years
after the later of the date of the final
disposition of all criminal proceedings against
the defendant or the release of the defendant
from supervision concerning a criminal
conviction.

“Motions filed pursuant to this section are procedural in nature,

and sealing pursuant to this section applies retroactively to all

eligible cases.” § 24-72-706(3).

B. Analysis

¶ 19 Di Asio does not dispute that he waived his right to seal his

record as part of the plea agreement. Nor do the parties disagree

that Di Asio’s class 5 felony conviction is the type of conviction

10
eligible for sealing. The question is whether the 2019 amendment

to section 24-72-703(11), which prohibits requiring a defendant to

waive sealing as part of a plea agreement, applies retroactively to

invalidate Di Asio’s waiver. We conclude that it does not for four

reasons.

¶ 20 First, we observe that section 24-72-703(11) contains no

retroactivity language. Thus, the statute’s plain language does not

support its retroactive application.

¶ 21 Second, we reject Di Asio’s argument that the phrase “in any

case” in section 24-72-703(11) reflects the General Assembly’s

intent to apply the statute retroactively. While we agree that “any”

is synonymous with “all” and “each and every,” we disagree that it

has any temporal meaning or reflects an intent to apply

retroactively. And, contrary to Di Asio’s argument, the General

Assembly clearly expressed its intent that the provision apply only

prospectively by providing an effective date of August 2, 2019.

See People v Stellabotte, 2018 CO 66, ¶ 3; People v. Hamm, 2019

COA 90, ¶ 27 (“Statutes that, by their terms, are effective ‘on or

after’ a specified date do not apply retroactively.”). We must give

11
effect to all parts of the statute, including its effective date. People

v. Harrison, 2020 CO 57, ¶ 17.

¶ 22 Third, the General Assembly specifically included retroactivity

language in sections 24-72-705 and -706, while excluding it from

section 24-72-703. See § 24-72-705(1)(c) (permitting retroactive

sealing of all eligible cases where a case has been completely

dismissed or a defendant has been acquitted of all counts in a state

or a municipal criminal case); § 24-72-706(3) (permitting retroactive

sealing of criminal conviction records in all eligible cases). This

shows that the General Assembly considered retroactivity when

enacting the 2019 amendments and that it could have included

similar language in section 24-72-703 had that been its intent.

People v. J.J.H., 17 P.3d 159, 162 (Colo. 2001) (“Courts should not

presume that the legislature used language ‘idly and with no intent

that meaning should be given to its language.’” (quoting McMillin v.

State, 158 Colo. 183, 188, 405 P.2d 672, 674 (1965))). Moreover,

we note that the General Assembly adopted the three sections as

part of the same bill, H.B. 19-1275, and we are required to interpret

“a provision existing as part of a comprehensive statutory scheme”

in harmony with the whole. Frank M. Hall & Co., 125 P.3d at 448.

12
¶ 23 When considering the statute as a whole, giving all parts of the

statute a “consistent, harmonious, and sensible effect,” Dennis,

¶ 12, we conclude the General Assembly intended that section 24-

72-703(11) apply prospectively only.

¶ 24 Furthermore, we are not convinced that applying section 24-

72-703(11) prospectively only contravenes a public policy against

requiring defendants to waive their right to seal their conviction

records as part of a plea agreement. Indeed, we agree with Di Asio

that the General Assembly is the final authority concerning the

state’s public policy. But, for the reasons described above, the

General Assembly chose to institute the public policy reflected in

section 24-72-703(11) prospectively only.

¶ 25 Finally, and relatedly, the enactment of section 13-3-117,

C.R.S. 2022, further supports our conclusion that subsection

703(11) only applies prospectively. Under section 13-3-117, the

state court administrator is required to compile a list of felony drug

convictions that are eligible for sealing pursuant to sections 24-72-

703 and 24-72-706 and to seal the records of those convictions

automatically in 2024. Section 13-3-117(3)(a) permits the district

attorney to object to the inclusion of a conviction where “a condition

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of the plea was that the defendant agreed to not have the conviction

record sealed.” This ability to object to sealing convictions when

sealing was waived as part of a plea agreement is consistent with

our conclusion that the 2019 amendments did not affect waivers

occurring before the effective date of section 24-72-703(11) (August

2, 2019) and that the General Assembly intended that subsection

703(11) only apply prospectively.

¶ 26 Accordingly, we conclude that section 24-72-703(11) does not

apply retroactively to invalidate Di Asio’s waiver of his right to seal

his conviction record for a plea agreement entered in 2018.

III. Conclusion

¶ 27 The order is affirmed.

JUDGE LIPINSKY and JUDGE LUM concur.

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