                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

State of West Virginia,
Respondent Below, Respondent                                                     FILED
                                                                                May 29, 2015
vs) No. 14-0988 (Monongalia County l4-P-231)                                RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
T.D.,
Petitioner Below, Petitioner


                               MEMORANDUM DECISION
        Petitioner T.D.,1 appearing pro se, appeals the order of the Circuit Court of Monongalia
County, entered September 8, 2014, that denied his petition to have four misdemeanor convictions
expunged from his record. Respondent State of West Virginia, by counsel Shannon Frederick
Kiser, filed a summary response.

        The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       According to his verified petition of expungement, petitioner was convicted of five
misdemeanor offenses “related to the consumption of alcohol while a freshman at West Virginia
University.” Specifically, in No. 12-M3lM-6104, the Magistrate Court of Monongalia County,
West Virginia, convicted petitioner of the misdemeanor offenses of underage consumption of
alcohol pursuant to West Virginia Code § 11-16-19(a)(1) and of public intoxication pursuant to
West Virginia Code § 60-6-9(a)(1) based on an incident occurring on August 17, 2012. In No.
l3-M31M-1948, the magistrate court convicted petitioner of the misdemeanor offense of underage
consumption of alcohol pursuant to West Virginia Code § 11-16-19(a)(1) based on an incident
occurring on March 18, 2013. In No. 13-M3lM-2517, the magistrate court convicted petitioner of
the misdemeanor offense of underage consumption of alcohol pursuant to West Virginia Code §
11-16-19(a)(1) based on an incident occurring on April 6, 2013.2 Also, petitioner was convicted in

       1
         Because this case relates to an expungement matter, it is confidential pursuant to Rule
40(e)(1) of the West Virginia Rules of Appellate Procedure.
       2
          The magistrate court dismissed a misdemeanor charge of underage possession of
alcohol—also brought under West Virginia Code § 11-16-19(a)(1)—in No. 13-M13M-2517
pursuant to a plea agreement.
                                            1
York County, Pennsylvania, of the summary offense of purchasing of an alcoholic beverage by a
minor pursuant to 18 Pa. Cons. Stat. Ann. § 6308(a) based on an incident occurring on March 27,
2013.

       On June 16, 20l4, petitioner filed his petition in the Circuit Court of Monongalia County,
West Virginia, seeking to have his convictions in this state expunged from the record pursuant to
West Virginia Code § 61-11-26, which provides that a person who, between the ages of eighteen
and twenty-six,3 commits a misdemeanor offense or offenses “arising from the same transaction”
may apply to the circuit court for expungement. See W.Va. Code § 61-11-26(a). The State filed a
response on June 25, 2014, opposing the petition on the ground that expungement “is only
available to persons having no other prior or subsequent convictions[.] See W.Va. Code §
61-11-26(b) (emphasis added).

       At a September 3, 2014 hearing, petitioner’s attorney conceded that West Virginia Code §
61-11-26(b) constrained the circuit court’s ability to expunge petitioner’s convictions. The circuit
court gave its reasons for holding the hearing while making its ruling from the bench:

              . . . [W]henever there’s a denial of expungement, I generally set it down for
       hearing because I think the [p]etitioners deserve a right to know why they’re being
       denied. And[,] it’s not because the Court doesn’t see the harm. The Court does see
       the harm. In fact, the prosecutor sees the harm as well. It’s not that the prosecutor
       wishes to argue against the expungement. It’s that we are charged with following
       the law.

              And, unfortunately, young man—and I don’t even need your—I’ve read
       your argument, and it’s right on[.] . . . But, I don’t have any choice. My job as a
       judge is to follow the law. And, unfortunately, the law is that if you receive a
       subsequent charge, or a prior charge, then you can’t expunge the record. So[,] as
       much as I would like to expunge the record, I can’t do it. So[,] the petition for
       expungement is denied. . . .

        On September 8, 2014, the circuit court entered its written order denying the petition. The
circuit court found that “Petitioner fail[ed] to qualify for expungement pursuant to West Virginia
Code § 6l-1l-26[(b)].”

        Petitioner now appeals the circuit court’s September 8, 2014, order denying his petition to
have his misdemeanor convictions expunged from the record. “This Court reviews the circuit
court’s final order and ultimate disposition under an abuse of discretion standard. We review
challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed
de novo.” Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 179, 469 S.E.2d 114, 115 (1996).



       3
          Petitioner was born on May 3, 1994; therefore, he was eighteen-years-old at the time of
his offenses.
                                                2
        On appeal, petitioner assigns two errors to the circuit court’s denial of his petition: (1) the
circuit court erred in not taking his testimony at the September 8, 2014, hearing because West
Virginia Code § 61-11-26(c)(10) provided him with the opportunity to explain in person the steps
he had taken toward rehabilitation; and (2) West Virginia Code § 61-11-26(b) is ambiguous as to
whether a person with prior or subsequent convictions may apply for expungement because West
Virginia Code § 61-11-26(c) notes that a petition may be made with regard to multiple convictions.
The State counters that petitioner’s arguments based on West Virginia Code § 61-11-26(c) lack
merit. We agree with the State.

        First, we reject petitioner’s argument that West Virginia Code § 61-11-26(c) afforded him
an opportunity to explain his efforts at rehabilitation in person.4 We note that West Virginia Code
§ 61-11-26(c) requires that a petition for expungement be verified under oath and lists the subjects
that the verified petition must address.5 West Virginia Code § 61-11-26(c) does not provide that
live testimony must be taken on any of the topics it delineates. Rather, we determine that West
Virginia Code § 61-11-26(g) answers whether the circuit court was compelled to hear petitioner’s
testimony in support of the petition to have his convictions expunged. Pursuant to West Virginia
Code § 61-11-26(g), the circuit court had three options once petitioner filed his petition: (1)
summarily grant the petition; (2) set a hearing; or (3) summarily deny the petition because it is
insufficient or because petitioner was not eligible to apply for expungement “as a matter of law.”
In this case, as reflected by the hearing transcript, the circuit court concluded that petitioner was
ineligible to apply as a matter of law, but felt that petitioner deserved to be informed of the same in
person.

        We consequently find that this case turns on petitioner’s second assignment of error:
whether the circuit court correctly determined that petitioner was ineligible to apply to have his
convictions expunged pursuant to West Virginia Code § 61-11-26(b). West Virginia Code §
61-11-26(b) provides, in pertinent part, that expungement is “only available to persons having no
other prior or subsequent convictions.” (emphasis added). Petitioner contends that West Virginia
Code § 61-11-26(c) interjects some ambiguity into the matter because it refers to “conviction or
convictions.” However, we determine that West Virginia Code § 61-11-26(c)’s reference to more
than one conviction is explained by West Virginia Code § 61-1-26(a) permitting a person to
petition to have multiple misdemeanor convictions expunged provided that those “offenses [arise]
from the same transaction.” Also, by requiring that convictions eligible for expungement must
arise from the same transaction—or incident—West Virginia Code § 61-11-26(a) reinforces West

       4
          We note that the hearing transcript reflects that the circuit court thoroughly reviewed
petitioner’s petition because the court stated that it read petitioner’s “argument” and indicated that
it sympathized with petitioner’s plight of having a criminal record.
       5
          For example, West Virginia Code § 61-11-26(c)(l0) provides that the petition must set
forth the steps a petitioner has taken toward rehabilitation. In his petition, petitioner stated that he
was working toward his career goal of becoming a police officer and that “I do not want these
stupid mistakes that I made freshman year of college to have a negative effect[.]” Petitioner
concluded by stating that “I am not the same crazy kid . . . because I believe I have grown up and I
am now making good decisions.”
                                                  3
Virginia Code § 61-11-26(b)’s bar against persons with other prior or subsequent convictions from
applying. In the instant case, petitioner does not dispute that the convictions which he sought to
have expunged arose from three different incidents, occurring on three different dates: August 17,
2012, March 18, 2013, and April 6, 2013. Because his convictions did not arise out of the same
transaction, we conclude that the circuit court correctly found that petitioner was ineligible for
expungement pursuant to West Virginia Code § 61-11-26(b) and, therefore, did not err in denying
the petition.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: May 29, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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