County District Court Nos. 16CV30753, 16CV30754 &
16CV30755 Honorable William Trujillo, Magistrate
Sherman & Howard, L.L.C., Richard Bednarski, Colorado
Springs, Colorado, for Petitioner-Appellee
H. May, District Attorney, Doyle Baker, Senior Deputy
District Attorney, Emily Young, Deputy District Attorney,
Colorado Springs, Colorado, for Respondent-Appellant
1 The prosecution appeals the district court's orders in
three El Paso County cases in which the court granted Charles
Alexander Robertson's requests to seal criminal records.
We consolidated the cases for purposes of appeal.
2 We address a novel question: Where a statute prohibits a
court from sealing criminal records until ten years have
passed since the disposition of the criminal proceedings, may
the parties waive this requirement and thereby authorize the
court to seal the records earlier? Our answer is
"no." As a result, we vacate the orders in case
numbers 16CV30755 and 16CV30753. Additionally, because the
existing record is not sufficient to support the order in
case number 16CV30754, we reverse that order and remand that
case for further proceedings.
Factual and Procedural History
3 In 2014, Robertson was charged in three separate cases with
(1)misdemeanor menacing (case number 14CR4601);
(2)consumption of marijuana and possession of drug
paraphernalia (case number 14M6691); and (3) consumption and
possession of alcohol by a person under twenty-one (case
number 14M6040). The prosecution offered Robertson a global
plea agreement to resolve all three cases. Under the
agreement, he would plead guilty to the menacing charge and
receive a deferred judgment lasting one year. The drug and
alcohol cases would be dismissed. The agreement also
specified that he could seal the records of all three cases.
A boilerplate clause waiving his right to seal the menacing
case was crossed out and, under each clause dismissing the
drug and alcohol cases, the prosecutor handwrote, "The
Defendant can petition to seal this case, " followed by
the prosecutor's initials.
4 Robertson accepted the agreement and pleaded guilty to the
menacing charge. The district court accepted his plea and the
deferred judgment in the menacing case, and the court
dismissed the other cases.
5 After Robertson completed the deferred judgment in the
menacing case, his guilty plea was withdrawn, and the case
was dismissed. He then petitioned to seal the records in all
three cases under section 24-72-702, C.R.S.
6 The district court, through its magistrate, held a hearing.
Robertson did not testify, but the prosecutor who drafted the
plea agreement did testify (though she had left the district
attorney's office by that time). The former prosecutor
explained that she had intended the agreement to permit
Robertson to seek sealing of the records in all three cases
upon his completion of the deferred judgment in the menacing
case. The court credited her testimony and ultimately found
that the harm to Robertson from not sealing the records
outweighed the public interest in keeping the records open.
The court thus granted his petitions to seal the records in
all three cases.
Drug and Alcohol Cases
7 Robertson's drug and alcohol cases - case numbers
14M6691 and 14M6040 - were dismissed under the global plea
agreement.The prosecution contends that the district
court could not grant Robertson's petitions to seal the
records in those cases because section
24-72-702(1)(a)(III)(A) prohibits such sealing until at least
ten years have passed. Robertson acknowledges that the
statute imposes a ten-year waiting period applicable to the
drug and alcohol cases and that the requisite ten years had
not yet elapsed at the time of his petitions. He argues,
however, that the parties waived this statutory requirement
in the plea agreement.
8 The prosecution denies that it intended to waive this
statutory requirement. The prosecution also maintains that
this requirement cannot be waived in any event. Because we
agree with the prosecution's second point, we need not
resolve the parties' dispute about the meaning of the
Standard of Review
9 We review for an abuse of discretion a district court's
order sealing a criminal record. R.J.Z. v. People,
104 P.3d 278, 280 (Colo.App. 2004). A district court abuses
its discretion if its findings and conclusions are "so
manifestly against the weight of evidence in the record as to
compel a contrary result, " or when the court applies an
inappropriate legal standard. Id. (quoting
Hytken v. Wake, 68 P.3d 508, 510 (Colo.App. 2002)).
10 Section 24-72-702(1)(a)(I) provides that, where a criminal
case was "completely dismissed, " a person may
petition to seal records in that case. But this permission
comes with qualifications. As relevant here, the records
"may not be sealed" if the dismissal
"occur[red] as part of a plea agreement in a separate
case, " unless (1) ten years or more have passed since
the final disposition of all criminal proceedings against the
person and (2) the person has not ...