                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                     FILED
D.B.,                                                                             June 7, 2019
Respondent Below, Petitioner                                                    EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
vs) No. 18-0176        (Harrison County 04-DV-218-4, 08-DV-112-4,
                       08-DV-241-4, 09-DV-62-4, 09-DV-63-4, 09-
                       DV-318-5, 09-DV-319-4, 09-DV-62-4, 10-DV-
                       26-4)

S.L., et al.,
Petitioners Below, Respondents


                               MEMORANDUM DECISION
        Petitioner D.B., 1 pro se, appeals the February 7, 2018, order of the Circuit Court of
Harrison County denying his motion under West Virginia Code § 48-27-511 to expunge law
enforcement records and seal court records regarding the domestic violence petitions filed against
him from 2004 through 2010. Respondents, the petitioners in the various domestic violence cases,
did not file a response.2

        The Court has considered petitioner’s brief 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, petitioner’s brief, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,


       1
        Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
       2
         Pursuant to Rule 10(d) of the West Virginia Rules of Appellate Procedure, if a respondent
fails to respond to an assignment of error, we will assume that the respondent agrees with
petitioner’s view of the issue. However, we decline to rule in petitioner’s favor simply because
respondents failed to file a response. See Syl. Pt. 8, State v. Julius, 185 W. Va. 422, 408 S.E.2d 1
(1991) (holding that we will accept a party’s concession only after a proper analysis shows that it
is correct).
                                                  1
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

       Petitioner is an inmate in the custody of the West Virginia Division of Corrections and
Rehabilitation. In State v. [D.B.] (“D.B. I”), No. 11-1191, 2012 WL 4054108, at *1-4 (W.Va. Sept.
7, 2012) (memorandum decision), this Court affirmed petitioner’s convictions for kidnapping and
malicious assault as a result of an attack on his former wife. This Court described the attack as
follows:

        According to testimony during petitioner’s jury trial, [Petitioner’s ex-wife] was
        doing laundry at her mother’s house when petitioner arrived in a vehicle. Upon
        approaching petitioner, he called [his ex-wife] a “dirty whore” and began hitting
        her. [Petitioner’s ex-wife] further testified that petitioner told her she was leaving
        the home with him. When she refused, petitioner threatened members of her family,
        and [petitioner’s ex-wife] testified that petitioner had a knife in his possession
        throughout the ordeal. The two left the premises, and petitioner continued to
        physically assault [his ex-wife], telling her how much he hated her and that she
        needed to die. According to her testimony, [petitioner’s ex-wife] attempted to flee
        on one occasion, but petitioner hit her so hard she blacked out. [Petitioner’s ex-
        wife] further testified that petitioner threatened to cut her and throw her in a well
        so as to conceal his crime. Eventually, petitioner returned [his ex-wife] home and
        told her family she had a seizure. Her family called 911, and [Petitioner’s ex-wife]
        told the responding emergency personnel that petitioner caused her injuries.
        [Petitioner’s ex-wife] remained hospitalized for several days, including treatment
        in the intensive care unit.

Id. at *1. In D.B. I, petitioner was also convicted of being a recidivist and, as a result, was sentenced
to a life term of incarceration with the possibility of parole for his kidnapping conviction. Id.3

        On January 31, 2018, petitioner filed a motion pursuant to West Virginia Code § 48-27-
511 in the various cases where women have sought a domestic violence protective order against
him. Consistent with the relief available under West Virginia Code § 48-27-511, petitioner asked
the circuit court to expunge law enforcement records and seal court records regarding the domestic
violence petitions. Petitioner argued that the granting of his motion would serve the ends of justice
because it had been from eight to fourteen years since the domestic violence petitions were filed.
By order entered February 7, 2018, the circuit court denied petitioner’s motion, finding that (1) the
use of the word “may” in West Virginia Code § 48-27-511 signified that it had the discretion to
grant or deny relief under the statute depending on the circumstances of the case; and (2)
“petitioner has a criminal history,” for which he was “serving a significant sentence” of
incarceration.

        3
          Petitioner subsequently filed a petition for a writ of habeas corpus challenging his
kidnapping and malicious assault convictions. In [D.B.] v. Plumley (“D.B. II”), No. 15-0213, 2016
WL 6819044, at *3 (W.Va. Nov. 18, 2016) (memorandum decision), this Court affirmed the denial
of petitioner’s habeas petition.
                                                   2
        Petitioner now appeals the circuit court’s February 7, 2018, order denying his motion to
expunge law enforcement records and seal court records regarding the domestic violence petitions
filed against him from 2004 through 2010. “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, 469 S.E.2d 114 (1996). West Virginia Code § 48-27-511
provides, in full:

       Two years after the entry of a final protective order, the circuit court, may, upon
       motion, order that the protective order and references to the order be purged from
       the file maintained by any law-enforcement agency and may further order that the
       file maintained by the court be sealed and not opened except upon order of the court
       when such is in the interest of justice.

(Emphasis added.). In Syllabus Point 1 of Pioneer Pipe, Inc. v. Swain, 237 W. Va. 722, 791 S.E.2d
168 (2016), we held that: “As a general rule of statutory construction, the word ‘may’ inherently
connotes discretion and should be read as conferring both permission and power. The Legislature’s
use of the word ‘may’ usually renders the referenced act discretionary, rather than mandatory, in
nature.”

         On appeal, petitioner argues that the circuit court did not possess “unfettered” discretion to
deny his motion under West Virginia Code § 48-27-511. Petitioner states that he has no contact
with any of the women who previously filed domestic violence petitions against him, does not
want to interact with them, “and cannot do so, if he wished to, due to his incarceration.” However,
petitioner further notes that he will be eligible for parole beginning in 2023. In Banker v. Banker,
196 W. Va. 535, 548, 474 S.E.2d 465, 478 (1996), we found that an abuse of discretion occurs in
three principal ways: (1) when a relevant factor that should have been given significant weight is
not considered; (2) when all proper factors, and no improper ones, are considered, but the lower
court in weighing those factors commits a clear error of judgment; and (3) when the lower court
fails to exercise any discretion at all in issuing the order. Based on our review of the record, we
find that no abuse of discretion occurred in this case. Rather, the circuit court grounded its denial
of petitioner’s motion in its finding that “petitioner has a criminal history,” for which he was
“serving a significant sentence” of incarceration. As petitioner himself points out, while his
sentence is substantial, he enjoys the possibility of being paroled at some future date once he
becomes eligible. Therefore, we conclude that the circuit court properly denied petitioner’s motion
under West Virginia Code § 48-27-511 to expunge law enforcement records and seal court records
regarding the domestic violence petitions filed against him from 2004 through 2010.

        For the foregoing reasons, we affirm the circuit court’s February 7, 2018, order denying
petitioner’s motion to expunge law enforcement records and seal court records in the various cases
where women have sought a domestic violence protective order against him.

                                                                                           Affirmed.

                                                  3
ISSUED: June 7, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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