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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN THE PEOPLE OF THE VIRGIN ISLANDS oe CASE NO. ST-09-CR-0000168 Plaintiff ) ) ACTION FOR: 14 V.I.C. 296 Vs. ) ) ) ) DENISE C. SMITH Defendant NOTICE OF ENTRY OF MEMORANDUM OPINION AND ORDER To: VINCENT A. FULLER, JR., ESQ., DEFENSE ATTORNEY * VENETIA H. VELASQUEZ, ESQ., CLERK OF THE COURT SUPERVISORS, CIVIL/CRIMINAL LOFTON P. HOLDER, ESQ., ASSISTANT ATTORNEY GENERAL LAW LIBRARY JUDGES & MAGISTRATES OF THE SUPERIOR COURT - STX JUDGES & MAGISTRATES OF THE SUPERIOR COURT - STT /iT DIVISION Please take notice that on August 12, 2010 a(n) MEMORANDUM OPINION AND ORDER dated August 09, 2010 was entered by the Clerk in the above-entitled matter. Dated: August 12, 2010 Venetia H. Velazquez. Esa. CLERK OF THE SUPERIOR COURT Cab lion al L COLLEEN SALEM COURT CLERK SUPERVISOR IN THE SUPERIOR COURT THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, ) CASE NO. ST-09-CR-168 ) ) Plaintiff, ) ) vs. ) ) DENISE SMITH ) ) Defendant. ) ) ) MEMORANDUM OPINION This matter is before the Court on Defendant’s pro se July 1, 2010, Petition for Expungement. The Department of Justice has not filed a Response.! FACTS AND PROCEDURAL HISTORY Defendant was arrested on March 30, 2009, after being identified by, Margaret Richardson as the person who entered a class room at Bertha C. Boschulte Middle School in St. Thomas and sprayed Richardson’s face with pepper spray. As aresult, an April 14, 2009, Information was filed that charged Defendant with second degree assault and disturbance of the peace. Subsequently, on June 12, 2009, the People filed a Motion to Amend the Information, which was granted by the Court on June 16, 2009, reducing the charges against Defendant to simple assault and disturbance of the peace. On June 24, 2009, at the People’s request, the Court directed Defendant to enter 15 V.L.C. § 3735(c) requires the Petitioner to serve her Petition for Expungement on the Department of Justice. Petitioner’s pro se Petition did not provide proof of service. However, because Petitioner is appearing pro se, the Court will still consider the Petition. People of the Virgin Islands v. Denise Smith Case No. ST-09-CR-168 Memorandum Opinion the Pretrial Diversion Program (“the PIP”) and continued the case until September 14, 2009. After Defendant’s successful completion of the PIP, the Court dismissed the charges against Defendant with prejudice through a September 17, 2009, Order. STANDARD OF REVIEW The Virgin Islands legislature adopted Act No. 7136, on November 25, 2009, permitting expungement of criminal records in certain circumstances. Title 5 of the Virgin Islands Code was amended by adding chapter 314 containing 5 V.LC. § 3732(1), which delineates instances in which the Court may expunge a record upon Petition to the Court and provides, for the first time that arrest records may be expunged when “[a] personal successfully completes the Pretrial Intervention Program under Title 5 V.I.C., Section 4611 et seq.” Prior to Act No. 7136 no provision of Virgin Islands law provided for expungement following completion of PIP. DISCUSSION If the statute were applicable, Defendant would meet the requirements of 5 V.LC. § 3732(1) because she successfully completed the PIP. However, Defendant’s case was dismissed on September 17, 2009, and 5 V.I.C. § 3732(1) had not been enacted at that time. In Gov't of the V.I v. Robinson, Case No. ST-95-CR-0121, Memorandum Opinion at *6 (V.I. Super Ct. March 26, 2010), the court held that Act No. 7136 is not to be applied retroactively and reasoned that “it can be inferred from the ‘clear and unambiguous language’ of the statute and other expungement statutes within Chapter 314 that the legislature intended the statute to give effect prospectively.” Consequently, this Court finds that Defendant is ineligible for expungement under the Act. People of the Virgin Islands v. Denise Smith Case No. ST-09-CR-168 Memorandum Opinion Even assuming arguendo that Act No. 7136 is to be applied retroactively, the determination of whether expungement in this matter is warranted would be a matter subject to the Court’s discretion. See 5 V.LC. § 3732(1). “Retaining and preserving arrest records serves the important function of promoting effective law enforcement. Such records help to meet the ‘compelling public need for an effective and workable criminal identification procedure.” Gov't of V.I. v. Richardson, 45 V.1. 326, 328 (Terr. Ct. 2004) (quoting United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977)) (citations omitted). Therefore, “(t]he government’s need to maintain arrest records must be balanced against the harm that the maintenance of arrest records can cause citizens.” Id. As a result, there is a presumption in favor of the government maintaining arrest records and the petitioner seeking expungement must overcome this presumption. Jd. (citing Sealed Appellant v. Sealed Appellee, 130 F.3d 695 (5" Cir. 1997)) (citations omitted). Expungement is within the Court’s discretion and is reserved for only extreme cases. Id., at 329. “Legal precedent instructs that absent extraordinary circumstances, the prosecutor aborting an action is not a basis for expungement.” Santiago v. People of the VI, 51 V1. 283, 295 (V.1. 2009). In Gov't of V.L v. Nugent, 48 V.1. 257,262 (V.I. Super Ct. 2007), the court determined that defendant’s argument that his arrest may impede his plans of joining the U.S. Marines did not qualify as “extraordinary circumstances nor [did] it outweigh the Government’s interests.” Moreover, in U.S. v. Schnitzer, supra at 540, the defendant moved to have his arrest record expunged because it would create problems for him as a rabbinical student. People of the Virgin Islands v. Denise Smith Case No. ST-09-CR-168 Memorandum Opinion The court refused to expunge defendant’s arrest record because “the situation [was] not harsh or unique. Such an explanation may be expected from those about to enter a profession, such as a religious or legal profession.” Jd. The court further reasoned that “(t]he harm, if any, which may result does not fall within the narrow bounds of the class of cases where expungement has been declared appropriate.” Id. The Court notes that the P.I.P. Statute, 5 V.LC. § 4611, does not contain a provision authorizing expungement after completion of the program. Therefore, even were the Act applicable, Defendant still would not qualify for expungement because she has not provided the Court with an extraordinary reason why her record should be expunged. As a result, Defendant’s Motion will be denied. A separate Order shall follow. Dated: August : 2010 a CS “ HON. MICHAEL C. DUNSTON JUDGE OF THE SUPERIOR COURT OF THE VIRGIN ISLANDS Attest: Venetia H. Velazquez, Esq. Clerk of the Court / / by: [hun al Colleen Salem Chief Deputy Clerk £/ /0) CERTIFIER A TRUE COPY Date: 7/7, o./2070 Venetia 13. Velazquez, Esq. Cierk of the Court Py Court Clerk IN THE SUPERIOR COURT THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, _ ) CASE NO. ST-09-CR-168 ) ) Plaintiff, ) ) VS. ) ) DENISE SMITH ) ) Defendant. ) ) _) ORDER The Court having rendered a Memorandum Opinion this date, in accordance with that opinion it is ORDERED that Defendant’s Petition for Expungement is DENIED; and it is ORDERED that a copy of this Order shall be personally served on the Defendant Denise Smith, and that a copy thereof shall be directed to Counsel of Record. Dated: August g. 2010 ig aay oe st HON. MICHAEL C. DUNSTON JUDGE OF THE SUPERIOR COURT OF THE VIRGIN ISLANDS Attest: Date: August , 2010 cai i> ; Venetia H. Velasquez, Esq. CERTIFIED A TRUE COPY Court Clerk Supervisor___/ / Date: Se? 7 oN /- 20/0 é. a Venera 4. Velazquez, Esq. [Other Cterk of the Court by: J a, Colleen Salem ‘ By: e Chief Deputy Clerk 9 1 /W) /G- , Court Clérk