                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Jeremy Dale Humphrey,                                                              FILED
Petitioner Below, Petitioner                                                   May 29, 2014
                                                                               released at 3:00 p.m.

                                                                             RORY L. PERRY II, CLERK

                                                                           SUPREME COURT OF APPEALS

vs) No. 13-0765 (Kanawha County 13-P-192)                                       OF WEST VIRGINIA


West Virginia Division of Corrections,
Intervenor Below, Respondent


                               MEMORANDUM DECISION
         Petitioner Jeremy Dale Humphrey (“petitioner”), by counsel Richelle K. Garlow and
Michael T. Clifford, appeals the order of the Circuit Court of Kanawha County entered on June
25, 2013. The circuit court set aside its previous order expunging four misdemeanor charges of
battery and found petitioner was not eligible to have his criminal record expunged because a
proceeding was pending relating to the matter for which the expungement was sought.
Respondent West Virginia Division of Corrections (“DOC”), by counsel John H. Boothroyd,
filed a response.

       This Court has considered the parties’ briefs, oral argument, and the record on appeal.
Upon review, this Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under
Rule 21 of the West Virginia Rules of Appellate Procedure.

                                Factual and Procedural History

        On August 3, 2012, the Charleston Police Department investigated four separate
incidents of pedestrians who reported they were pepper sprayed. The victims gave similar
accounts; while walking along city streets, they were approached by two individuals in a blue
Ford Escape and pepper sprayed. Petitioner and another individual were questioned by police.
One of the victims allegedly identified petitioner as the driver of the vehicle. The police arrested
petitioner and he was charged with four counts of misdemeanor battery.

        At the time of the arrest, petitioner was employed as a correctional officer at the Mount
Olive Correctional Center (“Mt. Olive”). After learning of the above incident, his supervisors
questioned petitioner about the matter and reviewed his statement to the police. Following this
investigation, petitioner was terminated from his employment. Thereafter, petitioner filed a
grievance with the West Virginia Public Employees Grievance Board seeking reinstatement.
This grievance remains pending.




                                                 1

        The Kanawha County Magistrate Court dismissed the criminal charges on November 27,
2012.1 On February 9, 2013, petitioner filed a petition for expungement of his criminal records in
circuit court, pursuant to West Virginia Code § 61-11-25 (2013 Supp.). Petitioner indicated there
were “no current charges or proceedings pending” in the matter. Without scheduling a hearing,2
the circuit court entered an order on March 1, 2013, granting expungement of the charges.
Petitioner presented this order to Mt. Olive.

        On April 1, 2013, DOC filed a “Motion to Intervene and to Set Aside Order of
Expungement for the Limited Purpose of the Pending Administrative Grievance Being Heard by
the Public Employee Grievance Board,” pursuant to Rule 24 of the West Virginia Rules of Civil
Procedure. The circuit court held a hearing on this matter on May 28, 2013.3 After hearing oral
arguments on the motion, the circuit court found that petitioner “has a proceeding pending
relating to the matter for which the expungement was sought, which was not disclosed to the
court prior to the expungement initially being ordered.” The circuit court then ordered that its
expungement order be set aside. Petitioner now appeals to this Court.

                                       Standard of Review

        “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). This appeal involves the interpretation of a statute. Statutory
construction is an issue of law and, accordingly, we review the circuit court’s statutory
construction de novo. Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415
(1995).

                                            Discussion

       On appeal, petitioner argues that the circuit court abused its discretion in setting aside the
expungement order. Petitioner raises three assignments of error: 1) he was not required to
disclose an ongoing administrative employment matter because the grievance hearing was not a
“proceeding” as contemplated by the statute; 2) the ruling was contrary to the purposes of
expungement; and 3) DOC had no right to intervene and its action in doing so was untimely.



       1
          The magistrate court entered an order placing petitioner in a pre-trial diversion program
for a period of three months pursuant to West Virginia Code § 61-11-22 (2010). A week later,
the magistrate court granted petitioner’s motion to dismiss the charges based on petitioner’s
assertion he had obtained gainful employment and could not participate in the program.
       2
          West Virginia Code § 61-11-25(c) provides that the circuit court “may set a date for a
hearing” and if it does so, “shall notify the prosecuting attorney and the arresting agency of the
petition and provide an opportunity for a response to the expungement petition.” Id., in part.
       3
         The parties did not include a transcript of this hearing in the appendix record submitted
to this Court.
                                                 2

         Pursuant to West Virginia Code § 61-11-25(a), an individual who has been charged with
a crime and who has been found not guilty, “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[.]” Id., in part. As we
stated in Mullen v. State Division of Motor Vehicles, 216 W.Va. 731, 733, 613 S.E.2d 98, 100
(2005), West Virginia Code § 61-11-25 authorizes discretionary expungement when certain
criteria are met.

        Petitioner met the initial criteria for filing his petition to expunge because the charges
against him were dismissed. W.Va. Code § 61-11-25(a). Additionally, he waited more than sixty
days after the order dismissing the charges was entered before he moved to expunge his records
in this matter, in accord with West Virginia Code § 61-11-25(b). However, the parties disagree
as to whether the circuit court granted the petition to expunge improperly, due to the fact that an
administrative proceeding concerning petitioner’s alleged actions was pending at the time the
circuit court granted the petition.

       Pursuant to West Virginia Code § 61-11-25(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.

Id., in part, (emphasis added).

        DOC argues that the petition to expunge should not have been granted because the
administrative proceeding was pending and, pursuant to West Virginia Code § 61-11-25(d),
petitioner was not eligible for expungement. Petitioner, on the other hand, argues that the only
type of pending proceeding that should prohibit the expungement of his criminal record is a
criminal proceeding. Thus, petitioner asserts that the meaning of the term “proceeding” used in
West Virginia Code § 61-11-25(d) should be construed as referring only to criminal proceedings,
not civil or administrative ones. Accordingly, petitioner contends that the pending administrative
proceeding against him was insufficient to prohibit the circuit court from considering his petition
for expungement.

        We reject petitioner’s argument because he is inviting this Court to rewrite the statute to
read “criminal proceedings.”4 We decline this request. “It is not for this Court arbitrarily to read
into [a statute] that which it does not say. Just as courts are not to eliminate through judicial

       4
         Other state legislatures have adopted the language urged by petitioner. For instance, in
Ohio, an individual who was charged with a crime but not convicted, or whose complaint was
dismissed, may apply to the court to have the records sealed if there are “no criminal proceedings
pending.” Ohio. Rev. Code Ann. § 2953.52(B)(2)(b) (West 2003). Our Legislature chose not to
use such restrictive language.


                                                  3

interpretation words that were purposely included, we are obliged not to add to statutes
something the Legislature purposely omitted.” Banker v. Banker, 196 W.Va. 535, 546-47, 474
S.E.2d 465, 476-77 (1996) (citing Bullman v. D & R Lumber Co., 195 W.Va. 129, 464 S.E.2d
771 (1995); Donley v. Bracken, 192 W.Va. 383, 452 S.E.2d 699 (1994)). See also, State ex rel.
Frazier v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994) (“Courts are not free to read
into the language what is not there, but rather should apply the statute as written.”).

        We therefore concur with the circuit court’s finding that petitioner’s records were
expunged improperly in this case. The statute provides that if “there are no current charges or
proceedings pending relating to the matter for which the expungement is sought, the court may
grant the petition[.]” W.Va. Code § 61-11-25(d), in part. The statute does not specify that the
“proceedings” to which it refers need be criminal proceedings, and using the plain meaning of
the word, the term “proceedings” may refer to criminal, civil, or administrative proceedings.5
Therefore, because there was a pending administrative proceeding relating to the matter for
which the expungement was sought at the time petitioner filed the petition, he was not eligible
pursuant to West Virginia Code § 61-11-25(d).

        Because we agree with the circuit court that petitioner was ineligible to petition for
expungement, this Court finds his second assignment of error is now moot. The remaining issue
is whether the circuit court erred in granting DOC’s motion to intervene.6 Petitioner argues: 1)
the motion was untimely; and 2) DOC lacks “standing” because the expungement statute
provides that, if a circuit court sets a hearing on a petition for expungement, notice must be given
to the prosecuting attorney and the arresting agency so they may attend to protect their interests.
Petitioner maintains West Virginia Code § 61-11-25 does not provide that “any interested party
or entity” may attend a hearing regarding expungement. DOC responds that the motion was
timely because it did not know about the petition for expungement until after the order of
expungement was issued. Thereafter, DOC filed its motion to intervene with due diligence. DOC
further argues it has a cognizable interest in petitioner’s expungement sufficient to meet the
standard to intervene.




       5
         In addressing similar language in an expungement statute, Kentucky Revised Statutes
431.076(4) (1996), the Court of Appeals of Kentucky held the phrase “no current charges or
proceedings pending” may refer to either criminal or civil proceedings. Commonwealth v. Davis,
400 S.W.3d 286, 289 (Ky. 2013).
       6
           Rule 24(a) of the West Virginia Rules of Civil Procedure provides, in pertinent part,
that

       [u]pon timely application anyone shall be permitted to intervene in an action . . .
       when the applicant claims an interest relating to the property or transaction which
       is the subject of the action and the applicant is so situated that the disposition of
       the action may as a practical matter impair or impede the applicant’s ability to
       protect that interest, unless the applicant’s interest is adequately represented by
       existing parties.
                                                 4

        “While Rule 24 of the West Virginia Rules of Civil Procedure provides for the
intervention of parties upon a timely application, the timeliness of any intervention is a matter of
discretion with the trial court.” Syl. Pt. 1, Pauley v. Bailey, 171 W.Va. 651, 301 S.E.2d 608
(1983). We find the circuit court did not abuse its discretion in granting DOC’s motion to
intervene in this matter. DOC filed the motion to intervene in a timely manner after learning of
the expungement order. Furthermore, DOC did have an interest in this matter sufficient to
intervene because the order expunging petitioner’s criminal record could impair or impede
DOC’s interest in presenting its case at the grievance proceeding.

                                           Conclusion

      For the foregoing reasons, this Court affirms the order of the Circuit Court of Kanawha
County entered on June 25, 2013.


                                                                                         Affirmed.


ISSUED: May 29, 2014

CONCURRED IN BY:

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




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