In Re: Petition of A.N.T. for Expungement of Records

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term FILED
_______________
April 5, 2017
released at 3:00 p.m.
No. 16-0147 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
IN RE: PETITION OF A.N.T. FOR EXPUNGEMENT OF RECORDS
____________________________________________________________
Appeal from the Circuit Court of Ohio County
The Honorable David J. Sims, Judge
Civil Action No. 15-P-161
REVERSED
____________________________________________________________
Submitted: February 28, 2017
Filed: April 5, 2017
Gail W. Kahle, Esq. Joseph J. John, Esq.
Ohio County Assistant Prosecuting John & Werner Law Offices, PLLC
Attorney Wheeling, West Virginia
Wheeling, West Virginia Counsel for the Respondent
Counsel for the Petitioner
Valena Beety, Esq.
Patrick Morrisey, Esq. Lisa Hartline, Rule 10 Student Attorney
Attorney General The West Virginia Innocence Project
Zachary A. Viglianco, Esq. Morgantown, West Virginia
Assistant Attorney General Counsel for Amicus Curiae
Charleston, West Virginia
Counsel for the Petitioner Jamie L. Crofts, Esq.
ACLU of West Virginia Foundation
Charleston, West Virginia
Counsel for Amicus Curiae
Bruce Perrone, Esq.
Legal Aid of West Virginia, Inc.
Charleston, West Virginia
Counsel for Amicus Curiae
Jennifer Oliva, Esq.
West Virginia Veterans Advocacy Clinic
Morgantown, West Virginia
Counsel for Amicus Curiae
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. This Court reviews a circuit court’s order granting or denying
expungement of criminal records for an abuse of discretion.
2. “A circuit court, absent extraordinary circumstances and to protect
constitutional rights or some other compelling public policy imperative, does not in the
absence of statutory authority have the power to order the expungement of criminal
history record information regarding a valid criminal conviction maintained by the State
Police Criminal Investigation Bureau pursuant to W.Va.Code, 15–2–24 [1977].” State ex
rel. Barrick v. Stone, 201 W.Va. 569, 570, 499 S.E.2d 298, 299 (1997).
Justice Ketchum:
In this appeal, we are asked to determine whether the Circuit Court of Ohio
County erred by granting the respondent, A.N.T.’s,1 request to expunge her criminal
records. The State asserts that the circuit court lacked the authority to order
expungement. Upon review, it is clear that the circuit court had no authority, by statute
or its inherent power, to order expungement of A.N.T.’s criminal records. Therefore, we
reverse the circuit court’s order.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from a single incident on the night of August 15, 2014, in
which then thirty-two-year-old A.N.T. illegally discharged a gun in a relatively crowded
neighborhood. A.N.T. alleges she was under severe emotional distress and anxiety
stemming from the death of her son two years before. When her husband, a police
officer, tried to leave their house for work, she tried to keep him from leaving by rushing
to his closet and grabbing his service gun. Despite her husband’s pleas, A.N.T. refused to
give him his service gun. Instead, she rushed out of the house and into the backyard.
There, she discharged a single shot into the ground.
1
See W.Va. R. App. P. 40(e) [2010] (requiring parties to be identified by their
initials in cases involving sensitive matters.); State ex. rel. Barrick v. Stone, 201 W.Va.
569, 570, 499 S.E.2d 298, 299 (1997) (“We refer to R.E.P. by his initials at his request
and in keeping with our practice involving sensitive issues where the disclosure of a
name is not appropriate.”).
1
A.N.T’s four children (all of whom were less than ten years old) were at
home when she discharged the gun. A neighbor heard the gunshot and reported it to the
Wheeling Police Department. Shortly thereafter, A.N.T. was arrested by Wheeling Police
officers and charged with domestic assault against her husband.
Acting on her lawyer’s advice, A.N.T. entered into a plea agreement with
the State pursuant to which the State dropped the domestic assault charge. In exchange,
A.N.T. agreed to plead no contest to discharging a firearm within 500 feet of a dwelling.2
The magistrate court accepted the plea agreement. She was convicted and fined $50.00.
Thereafter, A.N.T., who was employed by a health-maintenance
organization and possessed a West Virginia teaching certificate, sought to obtain an Ohio
teaching certificate. The Ohio teaching certificate application required her to answer
“yes” or “no” to the following two questions:
[H]ave you ever been convicted of, found guilty of,
pled guilty to, or pled no contest to any misdemeanor other
than a traffic offense?
And . . .
Have you ever had a criminal conviction sealed or
expunged?
A.N.T. alleges that her application for a teaching certificate in Ohio would be denied if
she were required to reveal her misdemeanor conviction. Therefore, she petitioned the
2
Under West Virginia Code § 20-2-58 [1985], it is a misdemeanor to discharge a
firearm within 500 feet of a dwelling. This statute has been amended since A.N.T.’s
conviction in ways that do not affect this appeal.
2
circuit court to order expungement of her criminal records relating to her August 15,
2014, criminal conduct.
The circuit court, though concerned with its lack of statutory authority,
found that extraordinary circumstances justified expunging A.N.T.’s criminal records. In
particular, the circuit court found that A.N.T. was under emotional distress and anxiety
when she illegally shot her husband’s service gun in her relatively crowded neighborhood
and that she had since recovered from her emotional distress. Moreover, the circuit court
stated that expungement would further public policy by allowing A.N.T. to pursue better
employment.3
Accordingly, on February 9, 2016, the circuit court ordered expungement
of all records relating to A.N.T.’s “arrest, charges, or other matters arising out of the
arrest and charges,” including judicial records and “arrest records, fingerprints,
photographs, index references or other data,” relating to the matter held by various law
enforcement agencies. It is from this order that the State appeals.
II.
STANDARD OF REVIEW
In this appeal, we assess a circuit court order directing expungement of
A.N.T.’s criminal records. Under our general expungement statutes, West Virginia Code
§ 61-11-25 [2012] and West Virginia Code § 61-11-26 [2009], a circuit court has
3
We note that A.N.T. already had a West Virginia teaching certificate and was on
the substitute teacher roll for Ohio and Marshall Counties.
3
discretion whether to grant expungement of a petitioner’s criminal records under certain
circumstances.4 Absent statutory authority, other courts have held that a circuit court’s
order granting or denying expungement of criminal records is reviewed for an abuse of
discretion.5 Therefore, we hold that this Court reviews a circuit court’s order granting or
denying expungement of criminal records for an abuse of discretion.
III.
ANALYSIS
There are two bases for judicial expungement of criminal records: statutory
authority and the inherent power of the courts. As we have stated: “Expungement is
principally a creature of statute; [however], this Court has recognized that the inherent
4
W.Va. Code § 61-11-25(d) (“If the court [makes certain findings] relating to the
matter for which the expungement is sought, the court may grant the petition[.]”)
(emphasis added); W.Va. Code § 61-11-26(j) (outlining circuit court’s duties “[i]f the
court grants the petition for expungement[.]”) (emphasis added). See also In re Krein,
2014 WL 1672945 at 1 (W.Va. 2014) (Memorandum Decision) (“[S]ub§ (d) of [West
Virginia Code § 61-11-25], which provides that the court ‘may’ grant the motion for
expungement, clearly signals that expungement is at the court’s discretion.”).
5
See U.S. v. Flowers, 389 F.3d 737, 740 (7th Cir. 2004) (“[W]e find that granting
expungement to [the petitioner] was an abuse of the district court’s discretion.”); Allen v.
Webster, 742 F.2d 153, 155 (4th Cir. 1984) (finding district court did not abuse its
discretion in denying petitioner’s request to expunge his criminal records); U.S. v.
Masciandaro, 648 F. Supp. 2d 779 (E.D. Va. 2009) (holding that magistrate court did not
abuse its discretion in denying petitioner’s motion to expunge his criminal records.);
State v. K.M.M., 721 N.W.2d 330, 332-33 (Minn. Ct. App. 2006) (“Appellate courts
review a district court order granting or denying the expungement of criminal records for
an abuse of discretion.”); George L. Blum, “Judicial Expunction of Criminal Record of
Convicted Adult in Absence of Authorizing Statute,” 68 A.L.R. 6th 1 (2011) (“In many
jurisdictions, the court, on review of a lower tribunal’s order denying a defendant’s
petition to expunge criminal history records, will employ an ‘abuse of discretion’
standard.”).
4
powers of the Court may permit expungement as a remedy under certain circumstances.”6
As we explain below, neither of these aforementioned bases authorizes expungement of
A.N.T.’s criminal records.
A. The circuit court had no statutory authority to expunge A.N.T.’s criminal records.
There are two West Virginia statutes relating to expungement of criminal
records generally: West Virginia Code § 61-11-25 and West Virginia Code § 61-11-26.7
Under West Virginia Code § 61-11-25, a court may expunge records
relating to certain criminal charges “when [the] criminal charges are dismissed (not as
part of a plea agreement).”8 A.N.T.’s domestic assault charge was dismissed as part of a
plea agreement, pursuant to which she was convicted of another misdemeanor crime, i.e.,
discharging a firearm within 500 feet of a dwelling.
West Virginia Code § 61-11-26 vests courts with discretion to expunge
records relating to certain misdemeanor convictions only if they do not “involve . . . the
use or exhibition of a deadly weapon or dangerous instrument[,]” and were committed
when the petitioner was between the ages of eighteen to twenty-six.9 A.N.T.’s
6
Mullen v. Dep’t of Motor Vehicles, 216 W.Va. 731, 733 n.2, 613 S.E.2d 98, 100
n.2 (2005).
7
At least two other West Virginia statutes permit expungement of records for
specific criminal offenses: (1) West Virginia Code § 60A-4-407(b) [2002] relates to
certain drug possession offenses; and (2) West Virginia Code § 17C-5-2b(h)(1) [2016]
allows for expungement of certain driving under the influence records. This case
implicates neither of these statutes.
8
Mullen, 216 W.Va. at 733, 613 S.E.2d at 100.
9
W.Va. Code § 61-11-26(a) & (i).
5
discharging a firearm conviction involved the use of a deadly weapon, and she committed
the offense when she was more than twenty-six years old. Therefore, A.N.T. is not
entitled to relief under West Virginia Code § 61-11-25 or § 61-11-26.
B. The circuit court did not have inherent power to expunge A.N.T.’s criminal records.
Recognizing the absence of statutory authority to order expungement of
A.N.T.’s criminal records, the circuit court relied on Syllabus Point 1 of State ex rel.
Barrick v. Stone, 201 W.Va. 569, 499 S.E.2d 298 (1997), which provides:
A circuit court, absent extraordinary circumstances and
to protect constitutional rights or some other compelling
public policy imperative, does not in the absence of statutory
authority have the power to order the expungement of
criminal history record information regarding a valid criminal
conviction maintained by the State Police Criminal
Investigation Bureau pursuant to W.Va. Code, 15-2-24
[1977].
To find that “extraordinary circumstances” justified expungement of A.N.T.’s criminal
records, the circuit court cited the following: (1) A.N.T.’s emotional distress at the time
she committed the offense, (2) her purported emotional recovery, and (3) her goal of
improving her employment status by obtaining a teaching certificate in Ohio, which
would be hampered by disclosure of her arrest, charge, and conviction.
The State argues that emotional distress and employment problems are
common amongst people who have been convicted of a crime, and therefore, the
circumstances surrounding A.N.T.’s underlying criminal conduct were not
“extraordinary.” We agree. Virtually every jurisdiction addressing this issue has held
that expungement absent statutory authority is a “narrow” remedy, which is “reserved for
6
the most unusual or extreme case.”10 Put simply, “[E]xpungement is not available to
remedy ‘adverse consequences which attend every arrest and conviction.’”11
A majority of jurisdictions find “extraordinary circumstances” only if the
facts underlying the petitioner’s criminal records were truly unusual or extreme, so as to
cast doubt on the validity of his/her arrest, charge, or conviction.12 For example,
expungement has been ordered where “there has been an unlawful arrest, where an arrest
has been made merely for harassment purposes, or where the statute under which an
individual was prosecuted has subsequently been determined to be unconstitutional.”13
10
See, e.g., U.S. v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977) (“[T]he power to
expunge ‘is a narrow one, . . . [and] should be reserved for the unusual or extreme
case.’”) (quoting U.S. v. Linn, 513 F.2d 925, 927 (10th Cir. 1975)); U.S. v. Smith, 940
F.2d 395, 396 (9th Cir. 1991) (“[Expungement] is a narrow power, appropriately used
only in extreme circumstances.”); Allen v. Webster, 742 F.2d 153, 155 (4th Cir. 1984)
(finding that acquittee seeking expungement was not entitled to it absent “exceptional
circumstances.”); U.S. v. McMains, 540 F.2d 387, 390 (8th Cir. 1976) (providing that
expungement “is not to be routinely used.”); Trisha Zeller, 1 Handbook on West Virginia
Criminal Procedure 3-76 (3d ed. 2016).
11
U.S. v. Rowlands, 451 F.3d 173, 179 (3d Cir. 2006) (quoting Flowers, 389 F.3d
at 739).
12
Zeller, 1 Handbook on West Virginia Criminal Procedure 3-76.
13
Farmer v. Dep’t of Law, Office of Att. Gen., 235 P.3d 1012, 1014 (Alaska 2010)
(citing Menard v. Saxbe, 498 F.2d 1017 (D.D.C. 1973) (where arrest was shown to never
to have been made); Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir. 1973) (where arrests
were unconstitutional for lack of probable cause); U.S. v. McLeod, 385 F.2d 734 (5th Cir.
1967) (where law enforcement arrested petitioners solely as a means of intimidating them
from assisting voter registration for minorities)).
7
In addition, courts universally hold that employment problems resulting
from a criminal record do not qualify as an “extraordinary” circumstance justifying
expungement absent statutory authority.14 As it has been noted:
It is possible, even likely, that any person with an
arrest or criminal record may well be impeded in finding
employment. . . . [However], if employment problems
resulting from a criminal record were sufficient to outweigh
the government’s interest in maintaining records, expunction
would no longer be the narrow extraordinary exception, but a
generally available remedy.15
Likewise, a petitioner’s mental health ordinarily is not an “extraordinary circumstance,”
which justifies expungement of criminal records.16
Here, the circumstances surrounding A.N.T.’s arrest, charge, and
conviction were not “extraordinary.” The grounds the circuit court relied upon to find
14
See Barrick, 201 W.Va. 569, 499 S.E.2d 298 (finding no extraordinary
circumstances where Petitioner graduated from college since his criminal conviction and
desired to become a teacher); U.S. v. Sumner, 226 F.3d 1005, 1008 (9th Cir. 2000)
(providing there were no extraordinary circumstances regarding California petitioner’s
twenty-six year old conviction based on his desire to become a teacher in Nevada.); Moss
v. U.S., 2011 WL 1706548 at 1 (E.D.N.Y. 2011) (holding that there were no
extraordinary circumstances when “the charges would disqualify [petitioner] from
employment as a home tutor and substitute teacher.”); Syllabus, State v. M.L.A., 785
N.W.2d 763 (Minn. 2010) (“A district court may not order the expungement of records . .
. when the sole basis for doing so is to help an individual achieve his or her employment
goals.”).
15
Flowers, 389 F.3d at 739, overruled on other grounds by U.S. v. Wahi, 850 F.3d
296 (7th Cir. 2017).
16
See In re Petition of Reid, 593 F. Supp. 2d 233, 234-35 (D.D.C. 2009) (holding
that petitioner’s bipolar disorder was not an extraordinary circumstance justifying
expungement of her assault with a dangerous weapon charge, even though her criminal
records hampered her employment prospects upon her graduation from veterinary
school).
8
otherwise, i.e., A.N.T.’s emotional distress, her purported recovery, and her employment
issues, are simply not grounds to expunge her criminal records absent statutory authority.
Moreover, A.N.T.’s criminal conviction for discharging a firearm within 500 feet of a
dwelling was a valid conviction, and she does not deny that she indeed shot a gun within
five-hundred feet of several residences in her neighborhood. Therefore, the circuit court
erred by finding it had the inherent power to expunge A.N.T.’s criminal records.
IV.
CONCLUSION
The circuit court had no authority, by statute or its inherent power, to order
expungement of A.N.T.’s criminal records. Therefore, we reverse the circuit court’s
order.
Reversed.
9