Opinion
No. 19-0939
11-18-2020
IN RE: I.S.A.
Mark A. Sadd, Anna G. Casto, Lewis Glasser PLLC, Charleston, West Virginia, Attorneys for the Petitioner, I.S.A. Patrick Morrisey, Attorney General, Scott E. Johnson, Assistant Attorney General, Karen Villanueva-Matkovich, Deputy Attorney General, Charleston, West Virginia, Attorneys for the Respondent, State of West Virginia.
Mark A. Sadd, Anna G. Casto, Lewis Glasser PLLC, Charleston, West Virginia, Attorneys for the Petitioner, I.S.A.
Patrick Morrisey, Attorney General, Scott E. Johnson, Assistant Attorney General, Karen Villanueva-Matkovich, Deputy Attorney General, Charleston, West Virginia, Attorneys for the Respondent, State of West Virginia.
Jenkins, Justice:
In this appeal, we are asked to decide whether the Circuit Court of Kanawha County erred by denying a petition to expunge a criminal record based upon its finding that the petitioner below, I.S.A., who is also the petitioner on appeal, was barred from seeking expungement by operation of West Virginia Code § 61-11-25(a) (eff. 2012) due to a purported plea of guilty entered by I.S.A. in exchange for the dismissal of another charge. We are further asked to determine whether the circuit court erred in rendering its decision in this particular matter without first holding a hearing. Having considered the parties’ briefs, their oral arguments, the appendix record, and the relevant law, we find that the circuit court erred in ruling that I.S.A. was barred from seeking expungement, as there is nothing in the record establishing that he entered a plea of guilty. Furthermore, we find that, due to the circuit court's misapprehension of the record before it, and the lack of evidentiary support for the circuit court's alternate conclusion that it is contrary to the public interest and public safety to grant I.S.A.’s petition for expungement, a hearing in this particular matter was warranted. Accordingly, we vacate the circuit court's order in full and remand this case for additional proceedings consistent with this opinion.
In accordance with West Virginia Rule of Appellate Procedure 40(e)(1), which requires the use of "[i]nitials or a descriptive term ... instead of a full name in ... cases relating to expungements," we refer to the petitioner by his initials.
I.
FACTUAL AND PROCEDURAL HISTORY
On February 25, 2017, I.S.A. was arrested by an officer of the Charleston, West Virginia, Police Department and charged with the felony offense of wanton endangerment involving a firearm in violation of West Virginia Code § 61-7-12 (eff. 1994). I.S.A. worked at a convenience store in the East End of Charleston. The arrest was predicated on the allegation that I.S.A. chased a shoplifter from the store and fired a 9 millimeter handgun in an attempt to get the shoplifter to stop fleeing. The allegations contained in the criminal complaint filed by the officer were based upon video surveillance viewed at the store and a statement given by I.S.A. after he was Mirandized. Neither the video nor the statement is included in the record. Furthermore, according to the complaint, several individuals were outside at the time of the incident, including a KRT bus driver. However, the record does not include a statement from any bystander.
Pursuant to West Virginia Code § 61-7-12 (eff. 1994),
[a]ny person who wantonly performs any act with a firearm which creates a substantial risk of death or serious bodily injury to another shall be guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary for a definite term of years of not less than one year nor more than five years, or, in the discretion of the court, confined in the county jail for not more than one year, or fined not less than two hundred fifty dollars nor more than two thousand five hundred dollars, or both.
The arresting officer averred in the criminal complaint that it was unclear whether I.S.A. fired his weapon into the air, as he claimed, or fired it in the direction of the shoplifter.
Although no written agreement is included in the record, I.S.A. apparently reached some type of pretrial arrangement with the assistant prosecuting attorney ("APA") who was assigned to his case regarding the dismissal of the felony charge. On March 10, 2017, the APA filed in the Magistrate Court of Kanawha County a motion to dismiss the felony charge against I.S.A. The ground given for the motion was "per pretrial agreement." On the same day, the APA filed a criminal complaint charging I.S.A. with the misdemeanor offense of unlawfully discharging a firearm across a public road of this state in violation of West Virginia Code § 20-2-58 (eff. 2016). The magistrate court entered an order, also on March 10, 2017, that granted the APA's motion to dismiss the felony offense charged against I.S.A. The dismissal order contains the notation "[p]lead to misd" and references the case number assigned to the misdemeanor complaint filed against I.S.A. by the APA.
The absence of a written agreement, or the failure to include in the record any written agreement, that may have been executed between I.S.A. and the APA pertaining to the dismissal of the felony charge could very well have contributed to the confusion in this case as to the nature of that agreement and I.S.A.’s obligations thereunder. While the pretrial diversion order, discussed infra , was entered on the same day and is included in the record, it does not appear to be the agreement referenced in the motion to dismiss insofar as it contains no provision relating to the dismissal of the felony charge or any other charge.
Under the relevant portion of West Virginia Code § 20-2-58 (eff. 2016):
(a) In addition to any other prohibitions which may exist by law, it shall be unlawful for any person to shoot or discharge any firearms:
(1) Across or in any public road in this state, at any time;
....
(b) Any person violating this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail for not more than one hundred days, or both fined and confined.
An additional document that also was entered on March 10, 2017, in the misdemeanor case, and that is the crux of this appeal, is a pretrial diversion order signed by the magistrate judge, the APA, I.S.A., and counsel for I.S.A. Contrary to the magistrate court order granting the APA's motion to dismiss the felony offense, which contained a notation indicating that I.S.A. entered a plea to the misdemeanor charge, there is nothing in the pretrial diversion order indicating that I.S.A. had entered, or would be required to enter, a plea. In fact, the terms of the pretrial diversion order indicate there was no plea. According to the order, "[t]he State of West Virginia along with the Defendant, agree to place the above-listed case[ ] [the misdemeanor case] on a Pre-Trial Diversion Program, in accordance with W. Va. Code § 61-11-22 [.]" The agreement specified that I.S.A. would be required, for a period of six months, to comply with various terms and conditions set out in the order, which included: (1) that he refrain from violating federal, state, or local law; (2) that he notify his counsel if he changed his place of residence or violated the agreement; and (3) that he refrain from socializing with convicted felons. He also agreed to pay $160.25 in court costs within six months of the date the order was entered. Additionally, if I.S.A. violated any of the conditions of the agreement, he could be prosecuted for the misdemeanor. Finally, the agreement provided that
[i]f, upon expiration of the specified period, it is determined that you have complied with all the rules, regulations[,] and conditions heretofore set forth, no prosecution for the violation set forth ... in this agreement of the above-listed case number[ ] will be instituted and the above-listed case number[ ] will be dismissed.
(Emphasis added). Upon completing the terms of the pretrial diversion order, I.S.A. filed, on September 13, 2017, as a self-represented litigant, a form motion to dismiss the misdemeanor charge. Shortly thereafter, on September 27, 2017, a second form motion seeking dismissal of the misdemeanor charge was filed. The "[r]uling" portion of the second form motion was checked "[g]ranted" and signed by the magistrate judge on the same day the motion was filed.
On appeal, I.S.A. describes this motion as a joint motion to dismiss by the Kanawha County Prosecuting Attorney's Office, through its APA, and I.S.A., through his counsel. However, the motion contains only one illegible signature and a box is checked indicating that only the State was making the motion.
Subsequently, I.S.A. filed three separate petitions seeking to have the previously dismissed felony charge expunged from his record. The first two petitions for expungement, which were both denied without a hearing, are not before this Court. On August 20, 2019, I.S.A. filed, as a self-represented litigant, his third petition for expungement of his dismissed felony charge. As with the first two petitions, the third one was denied by the circuit court without a hearing. By order entered on September 13, 2019, the circuit court gave dual grounds for denying the petition. The circuit court first found that "it is clear from the record that [I.S.A.] exchanged an initial and temporary guilty plea to the misdemeanor charge ... in exchange for the dismissal of the felony charge." Accordingly, the circuit court concluded that I.S.A. was statutorily barred from seeking expungement of the felony charge pursuant to West Virginia Code § 61-11-25(a), under which a person can seek expungement for certain charges that have been dismissed when the dismissal was "not in exchange for a guilty plea to another offense." As a second ground for denying the petition, the circuit court found that "[i]t is contrary to the public interest and public safety to grant the Petition for Expungement due to the serious nature of the charged event and the potentially deadly consequences to either the shoplifter, or any innocent bystander, like the KRT bus driver who was nearby." This appeal by I.S.A. followed.
After the notice of appeal in this case was filed, but before I.S.A. filed his appellate brief, this Court received a document titled "Response of Judge Tod J. Kaufman, Judge of the Circuit Court of Kanawha County." As the State has noted in its response brief, a response from the circuit court judge who decides a case that is before this Court on appeal is not contemplated by the Rules of Appellate Procedure. Furthermore, such a filing is not proper insofar as it has long been recognized that "a paramount principle of jurisprudence [is] that a court speaks only through its orders." Legg v. Felinton , 219 W. Va. 478, 483, 637 S.E.2d 576, 581 (2006). See also State ex rel. Erlewine v. Thompson , 156 W. Va. 714, 718, 207 S.E.2d 105, 107 (1973) ("A court of record speaks only through its orders."); Worley v. Easley , 123 W. Va. 1, 6, 13 S.E.2d 158, 160 (1941) ("It requires no citation of authority to say that a court speaks only through its orders."). Indeed, "[i]n our adversarial system of jurisprudence, the judge is not a party, he is the referee." State ex rel. Skinner v. Dostert , 166 W. Va. 743, 757-58, 278 S.E.2d 624, 634 (1981). Accordingly, the filing by the circuit court judge was not considered by this Court in deciding this case, and we discourage any such filings in the future.
II.
STANDARD OF REVIEW
When presented with an appeal from an order denying a petition for expungement, we apply an abuse of discretion standard. "This Court reviews a circuit court's order granting or denying expungement of criminal records for an abuse of discretion." Syl. pt. 1, In re A.N.T. , 238 W. Va. 701, 798 S.E.2d 623 (2017). To the extent that we are called to interpret statutory provisions to resolve the issues herein raised, our consideration is plenary. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995). With due regard for these standards, we consider the merits of this appeal.
III.
DISCUSSION
I.S.A. raises three assignments of error. First, he claims that the circuit court plainly erred in finding that his felony charge was dismissed in exchange for his plea of guilty to the misdemeanor charge, which, in turn, barred him from seeking expungement. Next, he argues that the circuit court's refusal to acknowledge that a pretrial diversion agreement is not a plea deal was an abuse of discretion. Finally, he argues that the circuit court abused its discretion in failing to hold a hearing in this matter. We address the first two issues together, as they both relate to the circuit court's ruling that I.S.A. is barred from seeking expungement due to a plea agreement. We will then address the circuit court's failure to conduct a hearing.
A. Existence of a Plea
The statute under which I.S.A. seeks expungement provides, in relevant part, that
[a]ny person who has been charged with a criminal offense under the laws of this state and who has been found not guilty of the offense, or against whom charges have been dismissed, and not in exchange for a guilty plea to another offense , may file a civil petition in the circuit court in which the charges were filed to expunge all records relating to the arrest, charge[,] or other matters arising out of the arrest or charge ....
W. Va. Code § 61-11-25(a) (emphasis added). Based upon this provision, the circuit court concluded that I.S.A. was barred from seeking expungement. I.S.A. first argues that the circuit court abused its direction by finding, in its order of September 13, 2019, that he had exchanged the dismissal of the felony charge against him for a guilty plea to a misdemeanor charge, and by refusing to acknowledge that a pretrial diversion agreement is not a plea deal. Additionally, I.S.A. contends that these are not only errors of material fact, but they also leave permanent inaccuracies in his public record. The State does not address this issue.
Instead, the State argues that, because the circuit court gave alternate grounds for denying expungement, and I.S.A. has appealed only one of those grounds, this case should be dismissed. We address this issue in our discussion of whether the circuit court erred in failing to conduct a hearing. In addition, citing cases from other jurisdictions, the State alternatively contends that we should dismiss this appeal as barred by res judicata, even though res judicata was not raised below. It does not appear that this Court has ever applied res judicata in the first instance on appeal, and we decline to do so in this case. See , Syl. pt. 2, Sands v. Sec. Tr. Co. , 143 W. Va. 522, 102 S.E.2d 733 (1958) ("This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.").
We agree that the circuit court erred and abused its discretion in this case. First, we find nothing in the relevant diversion statute, West Virginia Code § 61-11-22 (eff. 2010), that mandates a guilty plea. When this Court examines a statutory provision, we are mindful that "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r , 159 W. Va. 108, 219 S.E.2d 361 (1975). Thus, "[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syl. pt. 2, State v. Epperly , 135 W. Va. 877, 65 S.E.2d 488 (1951). Nonetheless, "[a] statute that is ambiguous must be construed before it can be applied." Syl. pt. 1, Farley v. Buckalew , 186 W. Va. 693, 414 S.E.2d 454 (1992).
According to West Virginia Code § 61-11-22(a),
[a] prosecuting attorney of any county of this state or a person acting as a special
prosecutor may enter into a pretrial diversion agreement with a person under investigation or charged with an offense against the state of West Virginia, when he or she considers it to be in the interests of justice.
While this statute allows for a plea to be part of a pretrial diversion agreement, it does not require that the agreement include a plea:
A person who has entered into an agreement for pretrial diversion with a prosecuting attorney and who has successfully complied with the terms of the agreement is not subject to prosecution for the offense or offenses described in the agreement or for the underlying conduct or transaction constituting the offense or offenses described in the agreement, unless the agreement includes a provision that upon compliance the person agrees to plead guilty or nolo contendere to a specific related offense , with or without a specific sentencing recommendation by the prosecuting attorney.
W. Va. Code § 61-11-22(c) (emphasis added). This language contains no ambiguity, and there is nothing therein requiring a person who has entered into a pretrial diversion agreement to plead guilty or nolo contendere to the offense that is the subject of the agreement, or to any related offense. In fact, this Court has previously recognized that, unlike a plea of guilty, a pretrial diversion agreement, in general, is not a conviction:
As one legal treatise noted, pretrial diversion agreements, also known as deferred adjudication agreements, are not convictions:
Deferred adjudication is not a conviction or a finding or verdict of guilt, but is a type of community supervision. A deferred judgment is akin to a sentence of probation .... In granting deferred adjudication the court defers further proceedings and places the defendant on community supervision without entering an adjudication of guilt. The purpose of statutory authority to withhold judgment and ultimately to dismiss a charge is to provide an opportunity for rehabilitation and to spare the defendant, particularly a first offender, the burden of a criminal record.
22A C.J.S. Criminal Law § 558 (2015) (internal footnotes omitted).
State v. Williams , 236 W. Va. 130, 136-37, 778 S.E.2d 579, 585-86 (2015). See also Tomashek v. Raleigh Cty. Emergency Operating Ctr. , 344 F. Supp. 3d 869, 874-75 (S.D. W. Va. 2018) (commenting that "a pretrial diversion agreement under West Virginia law is a means of avoiding a judgment of criminal guilt—the opposite of a conviction in a criminal action."); Parrish v. Auto Detailing by Me, LLC , No. 5:12-cv-03759, 2014 WL 1153735, at *3 n.7 (S.D. W. Va. Mar. 20, 2014) ("[P]retrial diversion does not involve an adjudication of guilt; charges are dismissed after a period of time if a defendant successfully completes a period of supervision."). Accordingly, we now hold that, the mere existence of a pretrial diversion agreement between (1) a prosecuting attorney of any county of this state or a person acting as a special prosecutor and (2) a person under investigation or charged with an offense against the State of West Virginia, entered into in accordance with West Virginia Code § 61-11-22, is not evidence that a plea of guilty or nolo contendere has been entered by the person who was under investigation or charged with an offense. The agreement is evidence of the entry of such a plea only where it includes a provision requiring a plea of guilty or nolo contendere.
I.S.A.’s pretrial diversion order contained no requirement that he enter a plea of guilty. In fact, the terms of the pretrial diversion order reflect that no plea was entered. One term provided that, should I.S.A. "violate the condition [sic] of this agreement during the specified time period, the Kanawha County Prosecuting Attorney may void this agreement and proceed to prosecute you in the [the misdemeanor case]." (Emphasis added). Under another term, "[n]either this agreement nor any other document filed with the Kanawha County Prosecutor's Office, as a result of this agreement, will be used against you, except for impeachment purposes, in connection with any prosecution for [the misdemeanor case]." (Emphasis added). Finally, according to I.S.A.’s pretrial diversion order,
[i]f, upon expiration of the specified period, it is determined that you have complied
with all the rules, regulations[,] and conditions heretofore set forth, no prosecution for the violation set forth herein in this agreement [sic] of the [misdemeanor case] will be instituted and [the misdemeanor case] will be dismissed.
These terms simply make no sense if I.S.A. had entered a plea of guilty. Therefore, the circuit court's finding that I.S.A. pled guilty to the misdemeanor in exchange for the dismissal of the felony charge is plainly wrong absent other evidence in the record demonstrating the existence of such a plea.
We have closely examined the joint appendix record submitted in this case and have found no clear evidence that I.S.A. entered a guilty plea to the misdemeanor charge that was the subject of the pretrial diversion agreement. For example, before a magistrate judge may accept a plea of guilty or no contest from a defendant, the judge must receive a form signed by the defendant containing certain information. No such form is in the record in this case. We observe that the magistrate court's criminal judgment order that dismissed the felony charge against I.S.A. does contain the notation "[p]lead to misd" along with the case number for the misdemeanor charge against I.S.A. However, without any other evidence of record that such a plea was entered, we must assume this notation was in error.
According to Rule 10(d) of the Rules of Criminal Procedure for the Magistrate Courts of West Virginia, "[b]efore accepting a plea of guilty or no contest, the magistrate shall receive from the defendant, on a form provided by the magistrate, a statement signed by the defendant acknowledging that the magistrate has addressed the matters set forth in sections (b) and (c) of this rule." (Emphasis added). Under subsections (b) and (c) of this rule:
(b) Advice to Defendant. — Before accepting a plea of guilty or no contest, the magistrate must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and
(2) If the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant; and
(3) That the defendant has the right to plead not guilty or to persist in that plea if it has already been made, and that the defendant has the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, the right against compelled self-incrimination, and the right to call witnesses; and
(4) That if a plea of guilty or no contest is accepted by the magistrate there will not be a further trial of any kind, so that by pleading guilty or no contest the defendant waives the right to a trial; and
(5) That upon a plea of guilty or no contest, the magistrate may question the defendant under oath, on the record, about the offense to which he or she has pleaded, and that the defendant's answers may later be used against him or her in a prosecution for false swearing.
(c) Ensuring That the Plea Is Voluntary. — The magistrate shall not accept a plea of guilty or no contest without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The magistrate shall also inquire as to whether the defendant's willingness to plead guilty or no contest results from prior discussions between the attorney for the state and the defendant or the defendant's attorney.
W. Va. R. Crim. P. Mag. Cts. 10(b) & (c). Moreover, I.S.A. could not have withdrawn a guilty plea entered in the magistrate court insofar as "[a] magistrate may neither entertain nor grant a motion to withdraw a plea of guilty or no contest." W. Va. R. Crim. P. Mag. Cts. 10(e).
This Court has recognized that "[a] trial court abuses its discretion if its ruling is based on an erroneous assessment of the evidence or the law." Bartles v. Hinkle , 196 W. Va. 381, 389, 472 S.E.2d 827, 835 (1996). See also Gentry v. Mangum , 195 W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995) ("In general, an abuse of discretion occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed but the circuit court makes a serious mistake in weighing them."). Because neither the pretrial diversion agreement nor the joint appendix record in this case reflect that I.S.A. entered a plea of guilty in relation to the misdemeanor charge, we find that the circuit court plainly erred and abused its discretion by finding that such a plea existed and barred I.S.A. from seeking expungement under West Virginia Code § 61-11-25(a). We next address whether the circuit court erred in failing to conduct a hearing to consider I.S.A.’s petition to expunge the dismissed felony charge from his public record.
B. Hearing
I.S.A.’s final assignment of error is that the circuit court abused its discretion by refusing to conduct a hearing before denying the petition for expungement. I.S.A. contends that, given the circuit court's erroneous factual findings, he was never afforded the chance to create a proper record. We agree that I.S.A. is entitled to a hearing in this case, but for a different reason.
In addition to finding I.S.A. was barred from seeking expungement based upon its erroneous finding that a guilty plea had been entered, the circuit court additionally found that "[i]t is contrary to the public interest and public safety to grant the Petition for Expungement due to the serious nature of the charged event and the potentially deadly consequences to either the shoplifter, or any innocent bystander, like the KRT bus driver who was nearby." The State argues that, because I.S.A. did not appeal this alternate ground, this case should be dismissed. However, we disagree insofar as there is inadequate evidentiary support for this conclusion in the current record. When the circuit court entered this ruling, it was under the misapprehension that I.S.A. had entered a plea of guilty and thereby had admitted his guilt. Because, as we establish above, this ruling was erroneous, there are no established facts on the record to support a finding that I.S.A. committed the acts as alleged and that granting his request for expungement would, therefore, be contrary to the public interest and public safety. Due to the absence of evidentiary support for the circuit court's alternate ground for denying expungement, we find this ruling, too, "is based on an erroneous assessment of the evidence," Bartles , 196 W. Va. at 389, 472 S.E.2d at 835, and, therefore, was an abuse of the circuit court's discretion. Due to the lack of evidentiary support for the circuit court's ruling, we find that, under the particular circumstances presented in this case, a hearing is warranted.
Our ruling is based upon the particular facts of this case, including the erroneous and factually unsupported findings of the circuit court. This case should not be interpreted as requiring a hearing with respect to all petitions seeking expungement.
IV.
CONCLUSION
Based upon our conclusions that the circuit court abused its discretion in finding that I.S.A. entered a plea of guilty and was, therefore, barred from seeking expungement; in finding, without evidentiary support, that granting I.S.A.’s request for expungement is contrary to the public interest and public safety; and in failing to hold a hearing under the particular circumstances presented by this case, we vacate the circuit court's order of September 13, 2019, in its entirety and remand this case for additional proceedings consistent with this opinion.
Vacated and Remanded.
JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
CHIEF JUSTICE ARMSTEAD dissents and reserves the right to file a dissenting opinion.
Workman, Justice, concurring:
I concur with the majority on both issues presented, but write separately to agree with the dissent to this extent: In the absence of a conviction, if evidence had been presented to the circuit court that the petitioner shot a firearm on a public street during busy daylight hours (even if the shooter did so in an attempt to apprehend a shoplifter), the circuit court would have been justified in finding that such conduct was "contrary to public interest and public safety" and in denying expungement of the charge on that basis. However, the petitioner was not convicted of the charge nor was there any presentation of evidence of the alleged conduct upon which the circuit court could have made the necessary finding of fact to support the denial of expungement. In short, if on remand the evidence presented at a hearing shows that such conduct occurred, even though the petitioner was not convicted of the charge, the circuit can make findings of fact and enter a conclusion of law regarding whether the conduct was sufficient for such finding and the consequent denial of expungement of the charge. However, because there was no such evidence presented, I must concur with the majority on this issue.
Notwithstanding the lack of any evidentiary proof of the allegations in the criminal complaint, the dissent contends that the record contains two evidentiary bases on which this Court could affirm the circuit court's ruling: the information contained in the complaint, upon which "the magistrate assigned to the matter found probable cause existed," and a statement made by the petitioner's counsel in his appellate brief, which the dissent apparently deems to be some sort of admission by the petitioner. First, a magistrate's finding of probable cause is not a finding that the information contained in a complaint is true; rather, it is a finding that allegations in the complaint are sufficient to charge a criminal offense and sufficient to support the issuance of an arrest warrant or summons. See W. Va. R. Crim. P. Mag. Cts. 3 & 4. It is a basic tenet of law that the charging instrument in a criminal case is not evidence of the crime. Second, with respect to the so-called admission of the petitioner's counsel in his appellate brief, the statements of counsel are also not evidence. It must also be noted that counsel's appellate brief is not a part of the lower court's record, and nothing contained therein was before the circuit court at the time it denied the petitioner's motion for expungement.
Defense counsel stated in his brief that the petitioner "gave chase to a fleeing shoplifter, raised his pistol to the sky and discharged the gun in a foolish attempt to scare the man to stop."
There is evidence in the record that I.S.A.’s decision to enter into a deferral agreement as to the misdemeanor charge played a role in the court's dismissal of the felony charge in Case No. 17-M20F-00458. Indeed, the Criminal Judgment Order entered on March 10, 2017, dismissing the charges in Case No. 17-M20F-00458 includes the notation "Plead to misd 17M-2134". J.A. 7. However, it appears from the pleadings in this matter that at least one of I.S.A.’s chief concerns is that the circuit court found that he had pled "guilty" to the misdemeanor charge in Case No. 17-M20M-02134. I agree with the majority that the record does not contain any document whereby I.S.A. specifically pled "guilty" to this charge. To the extent it is important to I.S.A. that the record should reflect that there is no such document, I do not disagree with the majority's specific finding in this regard.
Nonetheless, as set forth herein, even if the circuit court erred in finding that the dismissal of the felony charge of wanton endangerment involving a firearm was in exchange for a plea of guilty to the misdemeanor charge, it did not err in denying I.S.A.’s petition based upon it's discretionary finding that an expungement in this case was "contrary to public interest and public safety."
In summary, because of the lack of evidence before the circuit court on which it could make any findings of fact as to the truth of the allegations in the complaint, there was no basis upon which it could make any conclusions of law as to whether expungement would be contrary to public interest and public safety.
Accordingly, I concur.
Armstead, C.J., dissenting:
In this appeal in which the Petitioner, I.S.A., seeks expungement of his criminal record, the majority has found that the circuit court abused its discretion in finding that I.S.A. entered a plea of guilty and in finding, "without evidentiary support" that I.S.A.’s alleged actions were contrary to the interests of public safety. The majority also has found that the circuit court abused its discretion "in failing to hold a hearing under the particular circumstances presented by this case." Because I believe that the circuit court acted well within the discretion granted it by West Virginia Code § 61-11-25 (2012) when it denied I.S.A.’s request for expungement as "contrary to the interests of public safety," I respectfully dissent.
In reaching its decision to reverse the circuit court, I believe the majority has undermined the inherent discretion contained in West Virginia Code § 61-11-25. In addition, while it attempts to limit its holding that I.S.A. was entitled to a hearing to the specific facts in this case, the majority ignores the clear language of the statute that expressly states that the circuit court "may" hold such a hearing. By requiring a hearing in this case, the majority acted contrary to the statute. Moreover, without any specific guidance as to the circumstances which require such a hearing, the majority has substituted its judgement for that of the Legislature and muddied the water as to the process to be followed in expungement matters.
West Virginia Code § 61-11-25 provides in relevant part:
(a) Any person who has been charged with a criminal offense under the laws of this state and who has been found not guilty of the offense, or against whom charges have been dismissed, and not in exchange for a guilty plea to another offense, may file a civil petition in the circuit court in which the charges were filed to expunge all records relating to the arrest, charge or other
matters arising out of the arrest or charge ....
....
(c) Following the filing of the petition, the court may set a date for a hearing. If the court does so , it shall notify the prosecuting attorney and the arresting agency of the petition and provide an opportunity for a response to the expungement petition.
(d) If the court finds that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court may grant the petition and order the sealing of all records in the custody of the court and expungement of any records in the custody of any other agency or official including law enforcement records....
(emphasis added). This statute does not provide an applicant with an automatic right to an expungement or to the right to have a hearing on his or her application. In enacting the expungement statute, the Legislature has clearly guarded the circuit judge's discretion to consider the facts of the case and determine if the expungement is appropriate.
Had the Legislature intended to limit such discretion, it certainly could have expressly done so by outlining the specific outcomes available for the court to impose and the specific findings the court would be required to make when denying an application for expungement. Indeed, unlike the language of West Virginia Code § 61-11-25, the Legislature provided such a framework in relation to expungements for criminal convictions in West Virginia Code § 61-11-26(i) (2020), in which the Legislature set forth a specific procedure for determining whether applications should be granted pursuant to that statute:
(i) Court procedure for petition for expungement. — Within 60 days of the filing of a petition for expungement the circuit court shall:
(1) Summarily grant the petition;
(2) Return the petition to the petitioner to supply incomplete information or correct obvious errors in order to permit consideration of the petition on its merits;
(3) Set the matter for hearing; or
(4) Summarily deny the petition if the court determines the petition discloses on its face or, based upon supporting documentation and sworn statements filed in opposition to the petition, discloses that the petitioner, as a matter of law, is not entitled to expungement.
It is significant that West Virginia Code § 61-11-25, at issue in this case, contains no such framework.
The majority opinion focuses primarily upon the circuit court's finding, which the majority concludes was erroneous, that the dismissal of I.S.A.’s felony charge was in exchange for a plea of guilty to the misdemeanor offense in Case No. 17-M20M-02134. Having rejected the circuit court's finding regarding the dismissal of the felony charge as being in exchange for a guilty plea, the majority gives little weight to, and provides little discussion of, the circuit court's alternative ruling that the "serious nature" of the charged offense rendered granting the expungement "contrary to public interest and public safety." Indeed this finding by the circuit court is essentially disregarded by the majority and dismissed with the cursory statement that because the circuit court erred in finding the dismissal was in exchange for a plea of guilty, "there are no established facts on the record to support the circuit court's conclusion that I.S.A.’s actions were contrary to the interest of public safety."
However, the fact that the circuit court may have erred when it found that I.S.A. pled guilty to the misdemeanor charge does not undermine its alternative discretionary finding that an expungement is contrary to public interest and public safety. Affirming the circuit court's denial of I.S.A.’s petition on the this alternative ground is consistent with our prior holding that "[t]his Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." See Syl. Pt. 8, State v. Payne , 225 W.Va. 602, 694 S.E.2d 935 (2010) (citing Syl. Pt. 3, Barnett v. Wolfolk , 149 W.Va. 246, 140 S.E.2d 466 (1965) ). Here, the circuit court exercised its discretion pursuant to the statute and specifically found, in Paragraph 6 of the Conclusions of Law contained in its order, that:
It is contrary to public interest and public safety to grant the Petition for Expungement due to the serious nature of the charged event and the potentially deadly consequences to either the shoplifter, or any innocent bystander, like the KRT bus driver who was nearby, that comes with discharging a firearm under the circumstances herein, as alleged in the criminal complaint that forms the genesis for these proceedings.
The record certainly supports this finding. The Criminal Complaint in the misdemeanor case for which the Petitioner seeks expungement, Case No. 17-M20M-02134, alleges the following conduct:
On the above date the above defendant did commit the above offense by firing a single round from his handgun, a Taurus 9mm, while outside of the Shop and Go located at, [sic]1503 Washington Street East. The defendant was chasing a shoplifter at the time and stated he was attempting to get him to stop, when he fired the shot. This complaint is based on video surveillance viewed at the store, as well as a statement provided by defendant after he was mirandized. It is uncertain at this time if the shot was fired into the air as the defendant said, or in the direction of the shoplifter. There were several individuals outside at the time of the incident, as well as a KRT Bus Driver Krystal Honaker. This offense occurred in the City of Charleston, in Kanawha County, West Virginia.
J.A. 9. Based on such complaint, the magistrate assigned to the matter found probable cause existed, as indicated on the Criminal Complaint form. J.A. 8.
While certain specific facts may be in dispute, the relevant facts and the general nature of the Petitioner's actions are not. Indeed, even the Petitioner, in his Appellant's Brief filed with this Court, admitted through his counsel to "foolishly" firing his pistol while giving chase to a shoplifter on the night in question. Specifically, the Appellant's Brief states that "[t]he relevant procedural history establishes that on February 27, 2017, [I.S.A.], then-general manager of a convenience store in Charleston's East End, gave chase to a fleeing shoplifter, raised his pistol to the sky and discharged the gun in a foolish attempt to scare the man to stop." Appellant's Br. 2.
The record before the circuit court was certainly sufficient for the court to conclude, as it did, that it was "contrary to public interest and public safety" to grant the petition for expungement. More importantly, it was fully within the circuit court's discretion, pursuant to West Virginia Code § 61-11-25, to make such finding based on the record before it.
The circuit court also had the discretion pursuant to West Virginia Code § 61-11-25 to determine whether a hearing was necessary for it to make such ruling. The majority, ignoring the discretionary language of West Virginia Code § 61-11-25, erroneously determined that the circuit court was required to hold a hearing. The majority's reasoning on this point is sparse. It appears to find that, because the circuit court erred in its determination that I.S.A. had entered a plea of guilty to the misdemeanor charge, it somehow lacked an evidentiary basis for its discretionary finding that the facts of the case did not warrant expungement.1 The court then proceeded to find that "[d]ue to the lack of evidentiary support for the circuit court's ruling, we find that, under the particular circumstances presented in this case, a hearing is warranted." The majority's analysis ignores the fact that the circuit court's findings related to the purported guilty plea and its findings that an expungement was "contrary to public interest and public safety" were two entirely separate and independent grounds for its holding. Indeed, the circuit court expressly found, in Paragraph 9 of its Conclusions of Law, that:
The fact that the Petitioner entered into a plea agreement with the State and that said plea agreement was accepted by the Magistrate has no effect or implication upon the statutory discretion granted to and exercised by this Court in reviewing petitions for expungement.
The majority, perhaps recognizing the potential impact of its holding requiring a hearing in this case, inserted a footnote stating, "[o]ur ruling is based upon the particular facts of this case, including the erroneous and factually unsupported findings of the circuit court. This case should not be interpreted as requiring a hearing with respect to all petitions seeking expungement." (see Majority's Op., n.10). Other than the circuit court's finding that the Petitioner pled guilty to the misdemeanor charge, which is irrelevant to the circuit court's discretionary finding that an expungement was contrary to the public interest and public safety, the majority does not elaborate on what findings it believes were "erroneous and factually unsupported." In fact, it would be difficult to identify such findings in light of the fact that I.S.A.’s own brief filed in this Court acknowledges that he "gave chase to a fleeing shoplifter, raised his pistol to the sky and discharged the gun in a foolish attempt to scare the man to stop."
What is even more troubling is the fact that the majority's determination that a hearing was required in this case is not only inconsistent with the discretion granted to the circuit court, it provides circuit courts little guidance as to when such hearings are, in fact, required. I can envision future applicants for expungement arguing that the majority's opinion should be read as requiring the circuit court to essentially try the criminal case that has been dismissed in order to determine if the evidence rises to the level of rejecting an expungement request. That is clearly not what the expungement statute requires. The majority has interjected a new requirement not contained in West Virginia Code § 61-11-25, and has failed to clearly outline when such new requirement applies.
I believe that the circuit court properly exercised the discretion granted to it by the expungement statute, and found, based on the complaint and the supporting evidence before it (the primary and relevant portions of which are unrefuted by I.S.A.), that I.S.A.’s conduct was "contrary to public interest and public safety." Accordingly, I respectfully dissent from the majority's holding and would affirm the circuit court's denial of I.S.A.’s expungement petition.