People v. Di Asio.

2022 COA 140. No. 20CA2096. Sealing of Criminal Justice Records—Plea Agreements—Waiver.

December 8, 2022

In 2008, Di Asio pleaded guilty to obtaining drugs by fraud or deceit. His plea agreement included a waiver of the right to seal the records related to his case. In 2020, Di Asio moved to seal his conviction record based on a 2019 amendment to CRS § 24-72-703(11), which prohibits requiring defendants to waive future criminal justice records sealing as part of a plea agreement. The district court found that CRS § 24-72-703(11) did not apply retroactively and denied the motion.

On appeal, Di Asio argued that the district court erred in finding that he was ineligible to have his records sealed because it misconstrued CRS § 24- 72-703(11) as applying prospectively only. In 2019, the General Assembly amended Colorado’s criminal record-sealing statutes, CRS §§ 24-72-703 to -710, to, among other things, add subsection -703(11). CRS § 24-72-703(11) only applies prospectively because it contains no retroactivity language; the General Assembly clearly expressed its intent that it apply only prospectively by providing an effective date of August 2, 2019; the General Assembly considered retroactivity by including retroactivity language in CRS §§ 24-72-705 and -706, while excluding it from CRS § 24-72-703, so it could have included similar language in CRS § 24-72-703 had that been its intent; and prospective application does not contravene public policy. Further, under CRS § 13-3-117, the district attorney may object to the state court administrator’s sealing of eligible felony convictions pursuant to CRS §§ 24-72-703 and -706 when sealing was waived as part of a plea agreement. Accordingly, CRS § 24-72-703(11) does not apply retroactively and does not apply to Di Asio’s plea agreement. Therefore, the district court did not err.

The order was affirmed.