                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                                  FILED
In Re: Petition of W.P. for Expungement of Record                            February 2, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Case No. 17-0318 (Kanawha County 17-P-49 and 50)                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION
       Petitioner W.P.,1 pro se, appeals two orders of the Circuit Court of Kanawha County,
entered on March 2, 2017, denying his petitions for expungement of the record in related
misdemeanor cases. Respondent State of West Virginia, by counsel Benjamin F. Yancey, III, filed
a summary response in support of the circuit court’s order. Petitioner filed a reply.

        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.

       On June 29, 2011, petitioner was involved in an altercation with his sister and another
woman. According to the resulting criminal complaints, petitioner was charged with misdemeanor
domestic battery pursuant to West Virginia Code § 61-2-28(a) for grabbing his sister “by the throat
and push[ing] her down” onto a lounge chair and misdemeanor battery pursuant to West Virginia
Code § 61-2-9(c) for shoving the other woman “with an open hand in the chest while she was
holding a 9[-]month[-]old baby in a baby carrier.”

        Petitioner and the State entered into a pretrial diversion agreement pursuant to West
Virginia Code § 61-11-22. The parties agreed that each misdemeanor charge would be dismissed if
petitioner successfully completed the pretrial diversion program, which was to last six months.
The Magistrate Court of Kanawha County accepted the parties’ agreement and placed petitioner in
the pretrial diversion program by order entered on November 15, 2011. The magistrate court’s
order was entered in Case No. 11-M-6104 regarding the battery charge, but reflected that the State
also agreed “to dismiss [Case No.] 11-M-6041,” the case regarding the domestic battery charge, at
the end of the pretrial diversion program.

       1
        By scheduling order entered on April 21, 2017, this Court deemed this case confidential
pursuant to Rule 40(e) of the West Virginia Rules of Appellate Procedure.

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        Following petitioner’s successful completion of the pretrial diversion program, the
magistrate court dismissed the charges in separate orders entered on May 22, 2012. In Case No.
11-M-6041, the magistrate court dismissed the domestic battery charge, noting that it was “per
plea” in the related Case No. 11-M-6104. In No.11-M-6104, the magistrate court dismissed the
battery charge, noting that the pretrial diversion program was successfully completed.

        On February 17, 2017, petitioner filed a petition for expungement of the record in the
Circuit Court of Kanawha County with regard to the domestic battery charge. On February 21,
2017, petitioner filed a similar petition with regard to the battery charge. By separate orders
entered on March 2, 2017, the circuit court denied the petitions. In each order, the circuit court
noted that it “review[ed] the official court file” and found that “good cause” existed for denying
petitioner’s request for expungement.

       Petitioner now appeals the circuit court’s March 2, 2017, orders denying his petitions for
expungement of the record.2 “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).

        On appeal, petitioner states that he seeks expungement of the record pursuant to West
Virginia Code § 61-11-25, under which “a court may expunge records relating to certain criminal
charges ‘when [the] criminal charges are dismissed (not as part of a plea agreement).’” A.N.T., 238
W.Va. at 704, 798 S.E.2d at 626 (quoting Mullen v. State, Div. of Motor Vehicles, 216 W.Va. 731,
733, 613 S.E.2d 98, 100 (2005)). The State counters that the circuit court properly denied the
petitions. We agree with the State.

       Petitioner does not dispute that he was charged with domestic battery pursuant to West
Virginia Code § 61-2-28, which prohibits acts of domestic violence. West Virginia Code
61-11-22(e) provides, in pertinent part, that West Virginia Code § 61-11-25 is “inapplicable to
defendants participating in pretrial diversion programs who are charged with a violation of [West
Virginia Code § 61-2-28].” Therefore, we find that petitioner is not eligible to seek expungement
       2
         Although not recognized by the modern Rules of Civil Procedure, petitioner also filed
motions asking the circuit court “to reconsider” its March 2, 2017, orders. On appeal, petitioner
describes those motions seeking to alter or amend the judgment pursuant to Rule 59(e). We note
that a timely filed Rule 59(e) motion “suspends the finality of the judgment and makes the
judgment unripe for appeal.” Syl. Pt. 7, in part, James M.B. v. Carolyn M., 193 W.Va. 289, 456
S.E.2d 16 (1995). However, upon our review of the record, petitioner did not file his “motions to
reconsider” the March 2, 2017, orders until March 20, 2017. Therefore, we find that the motions
were not timely filed under Rule 59(e), but are instead motions for relief from judgment pursuant
to Rule 60(b). Rule 60(b) provides that “[a] motion under this subdivision (b) does not affect the
finality of a judgment or suspend its operation.” See also Syl. Pt. 1, Toler v. Shelton, 157 W.Va.
778, 204 S.E.2d 85 (1974). Accordingly, we consider petitioner’s appeal in this posture.


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of the record under West Virginia Code § 61-11-25.

        In syllabus point 2 of A.N.T., we reiterated that the circuit court has the inherent power to
expunge the record in “extraordinary circumstances.” 238 W.Va. at 702, 798 S.E.2d at 624
(quoting Syl. Pt. 1, State ex rel. Barrick v. Stone, 201 W.Va. 569, 499 S.E.2d 298 (1997)). We find
that incidents of domestic violence are not extraordinary, but all too common. We agree with the
State that the circumstances of this case provided the circuit court with sufficient cause to deny
petitioner’s requests for the expungement of the record. See A.N.T., 238 W.Va. at 702-3, 798
S.E.2d at 624-5 (reversing an order of expungement where the petitioner was charged with
domestic assault arising out of an altercation with her husband). Therefore, we conclude that the
circuit court properly denied petitioner’s petitions for expungement.

        For the foregoing reasons, we affirm the circuit court’s March 2, 2017, orders denying
petitioner’s petitions for expungement of the record.

                                                                                          Affirmed.

ISSUED: February 2, 2018

CONCURRED IN BY:

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




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