WEST virginia Legislature
2017 regular session
By Delegates Pushkin,
Sponaugle, fluharty, Hornbuckle, Fleischauer and McGeehan
[
to the Committee on Industry and Labor then the Judiciary.
A BILL to amend and
reenact §61-11-26 of the Code of West Virginia, 1931, as amended, relating to
the creation of the West Virginia Second Chance for Employment Act; defining terms; expanding eligibility for criminal
expungement to persons convicted of certain nonviolent felonies; defining
“nonviolent felony;” providing exclusions to eligibility; establishing timing
for filing a petition for expungement; creating petition requirements and court
procedure for evaluating preliminary and final orders of expungement for
nonviolent felonies; providing for preliminary orders of expungement; requiring
a ten-year period under a preliminary order of expungement for a felony before
one may obtain a final order of expungement; clarifying disclosure requirements
with respect to the information sealed pursuant to an order of expungement,
including exemptions; providing standard for inspection of sealed records; and
making technical changes.
Be it enacted by the
Legislature of West Virginia:
That §61-11-26 of the
Code of West Virginia, 1931, as amended, be amended and reenacted to read as
follows:
ARTICLE
11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-26. Expungement of certain criminal convictions;
procedures; effect.
(a) Eligibility for expungements. —
(1) Misdemeanors. — Any person
convicted of a misdemeanor offense or offenses arising from the same
transaction committed while he or she was between the ages of eighteen and
twenty-six, inclusive or series of transactions may, pursuant to the
provisions of this section, petition the circuit court in which the
conviction or convictions occurred for expungement of the conviction or
convictions and the records associated therewith. The clerk of the circuit
court shall charge and collect in advance the same fee as is charged for
instituting a civil action pursuant to subdivision (1), subsection (a), section
eleven, article one, chapter fifty-nine of this code for a petition for
expungement
(2) Nonviolent felonies. — Any
person convicted of a nonviolent felony offense, as defined in subsection (c)
of this section, or nonviolent felony offenses arising from the same
transaction or series of transactions, may, pursuant to this section, petition
the circuit court in which the conviction or convictions occurred for preliminary
order of expungement of the conviction or convictions and the records
associated therewith, and subsequently the final order of expungement of the
conviction or convictions and the records associated therewith.
(b) Expungement shall
not be available for any conviction of an offense listed in subsection (i) of
this section. The relief afforded by this subsection is only available to
persons having no other prior or subsequent convictions other than minor
traffic violations at the time the petition is filed: Provided, That at
the time the petition is filed and during the time the petition is pending,
petitioner may not be the subject of an arrest or any other pending criminal
proceeding. No person shall be eligible for expungement pursuant to the provisions
of subsection (a) of this section until one year after the conviction,
completion of any sentence of incarceration or probation, whichever is later in
time
(b) Fee for filing petition for expungements. — The clerk of the
circuit court shall charge and collect in advance the same fee for a petition
for expungement as is charged for instituting a civil action pursuant to
subdivision (1), subsection (a), section eleven, article one, chapter
fifty-nine of this code.
(c) Limitations on eligibility for expungement. —
(1) Certain convictions excluded. — For the purposes of this section,
the term “nonviolent felony” means any felony offense other than the following:
(A) A “felony
crime of violence against the person” as defined in subsection (o), section
twenty-seven, article five, chapter twenty-eight of this code;
(B) A “felony offense wherein the victim was a minor child”
as defined in subsection (p), section twenty-seven, article five, chapter
twenty-eight of this code;
(C) A felony offense involving the use or exhibition of a
firearm, deadly weapon or dangerous instrument; or
(D) A felony offense involving possession of a controlled
substance with the intent to sell or deliver to a minor child, as set forth in
article four, chapter sixty-a of this code;
(2) Temporal requirements. —
(A) No person shall be eligible for expungement pursuant
to this section until one year after completion of any sentence of
incarceration or completion of any period of supervision, whichever is later in
time.
(B) No person shall be
eligible for permanent expungement pursuant to subdivision (2), subsection (a)
of this section until ten years after an order is entered granting the petition
of that person for preliminary order of expungement.
(3) Other
miscellaneous exclusions. — No person shall be eligible for expungement
under this section if he or she:
(A) Has any prior or subsequent conviction other than
minor traffic violations at the time the petition is filed: Provided, That at the time the petition
is filed and during the time the petition is pending, the petitioner may not be
the subject of arrest or any other pending criminal proceeding;
(B) Has violated the
provisions of subsection (b) or (c), section nine, article two of this chapter
where the victim was a spouse, a person with whom the person seeking
expungement had a child in common or with whom the person seeking expungement
ever cohabitated prior to the offense;
(C) Has violated the
provisions of section twenty-eight, article two of this chapter; or
(D) Has been convicted
of driving under the influence of alcohol or controlled substances or has
violated section three, article four, chapter seventeen-b of this code.
(c) (d) Content
of petition for expungements. — Each petition to expunge a conviction
or convictions pursuant to this section shall be verified under oath and
include the following information:
(1) Petitioner’s current
name and all other legal names or aliases by which petitioner has been known at
any time;
(2) All of petitioner’s addresses from the date of the
offense or alleged offense in connection with which an expungement order is
sought to date of the petition;
(3) Petitioner’s date of
birth and social security number;
(4) Petitioner’s date of
arrest, the court of jurisdiction and criminal complaint, indictment, summons
or case number;
(5) The statute or statutes
and offense or offenses for which petitioner was charged and of which
petitioner was convicted;
(6) The names of any victim
or victims, or that there were no identifiable victims;
(7) Whether there is any
current order for restitution, protection, restraining order or other no
contact order prohibiting the petitioner from contacting the victims or whether
there has ever been a prior order for restitution, protection or restraining
order prohibiting the petitioner from contacting the victim. If there is such a
current order, petitioner shall attach a copy of that order to his or her
petition;
(8) The court's disposition of the matter and punishment imposed, if
any;
(9) Why expungement is
sought, such as, but not limited to, employment or licensure purposes, and why
it should be granted;
(10) The steps the
petitioner has taken since the time of the offenses toward personal
rehabilitation, including treatment, work or other personal history that
demonstrates rehabilitation;
(11) Whether petitioner has
ever been granted expungement or similar relief regarding a criminal conviction
by any court in this state, any other state or by any federal court; and
(12) Any supporting documents, sworn statements, affidavits
or other information supporting the petition to expunge.
(d) (e) Service
of petition for expungements. — A
copy of the petition, with any supporting documentation, shall be served by
petitioner pursuant to the rules of the trial court upon the following
persons of entities:
(1) The Superintendent of the State Police;
(2) the The prosecuting attorney of the
county of conviction;
(3) the The chief of police or other
executive head of the municipal police department wherein the offense was
committed;
(4) the The chief law-enforcement officer
of any other law-enforcement agency which participated in the arrest of the
petitioner;
(5) the The superintendent or warden of any
institution in which the petitioner was confined;
(6) the The magistrate court or municipal
court which disposed of the petitioner's
criminal charge; and
(7) all All other state and local government agencies whose
records would be affected by the proposed expungement.
The prosecutorial office
that had jurisdiction over the offense or offenses for which expungement is
sought shall serve by first class mail the petition for expungement,
accompanying documentation and any proposed expungement order to any identified
victims.
(e) (f) Filing
and service of notice of opposition to petition for expungement. — Upon
receipt of a petition for expungement, the superintendent, of the State
Police; the prosecuting attorney of the county of conviction; the chief of
police or other executive head of the municipal police department wherein the
offense was committed; the chief law-enforcement officer of any other law-enforcement
agency which participated in the arrest of the petitioner; the superintendent
or warden of any institution in which the petitioner was confined; the
magistrate court or municipal court which disposed of the petitioner's criminal charge; all other state and local
government agencies whose records would be affected by the proposed expungement persons and entities listed in subsection (e) of
this section and any other interested individual or agency that desires to
oppose the expungement shall, within thirty days of receipt of the petition,
file a notice of opposition with the court with supporting documentation and
sworn statements setting forth the reasons for resisting the petition for
expungement.
(1) A copy of any
notice of opposition with supporting documentation and sworn statements shall
be served upon the petitioner in accordance with trial court rules.
(2) The petitioner may file a reply no later than ten
days after service of any notice of opposition to the petition for expungement.
(f) (g) Burden
of proof. — The burden of proof shall be on the petitioner to prove by
clear and convincing evidence that: (1) The conviction or convictions for which
expungement is sought are the only convictions against petitioner and that the
conviction or convictions are not excluded from expungement by subsection (j)
of this section; (2) the requisite time period has passed since the conviction
or convictions or end of the completion of any sentence of incarceration or probation
period of supervision as set forth in subdivision (2), subsection (c) of
this section; (3) petitioner has no criminal charges pending against him or
her; (4) the expungement is consistent with the public welfare; (5) petitioner
has, by his or her behavior since the conviction or convictions, evidenced that
he or she has been rehabilitated and is law-abiding; and (6) any other matter
deemed appropriate or necessary by the court to make a determination regarding
the petition for expungement.
(g) (h) Court
procedure for petition for expungement. — Within sixty days of the
filing of a petition for expungement the circuit court shall:
(1) For persons eligible pursuant to subdivision
(1), subsection (a) of this section:
(A) Summarily grant the petition;
(2) (B) Set the matter for hearing; or
(3) (C) Summarily deny the petition if the court
determines that the petition is insufficient or, based upon supporting
documentation and sworn statements filed in opposition to the petition, the
court determines that the petitioner, as a matter of law, is not entitled to
expungement.
(2) For persons eligible
pursuant to subdivision (2), subsection (a) of this section:
(A) Summarily and preliminarily grant the petition
subject to the provisions of subsection (j) of this section;
(B) Set the matter for
hearing; or
(C) Summarily deny the
petition if the court determines that the petition is insufficient or, based
upon supporting documentation and sworn statements filed in opposition to the
petition, the court determines that the petitioner, as a matter of law, is not
entitled to expungement.
(h) (i) Hearing
on petition for expungement. — If the court sets the matter for
hearing, all interested parties who have filed a notice of opposition shall be
notified. At the hearing, the court may
inquire into the background of the petitioner and shall have access to any
reports or records relating to the petitioner that are on file with any
law-enforcement authority, the institution of confinement, if any, and parole
authority or other agency which was in any way involved with the petitioner's arrest, conviction, sentence and post-conviction supervision,
including any record of arrest or conviction in any other state or federal
court. The court may hear testimony of witnesses and any other matter the court
deems proper and relevant to its determination regarding the petition. The
court shall enter an order reflecting its ruling on the petition for
expungement with appropriate findings of fact and conclusions of law.
(i) No person shall be
eligible for expungement of a conviction and the records associated therewith
pursuant to the provisions of subsection (a) of this section for any violation
involving the infliction of serious physical injury; involving the provisions
of article eight-b of this chapter where the petitioner was eighteen years old,
or older, at the time the violation occurred and the victim was twelve years of
age, or younger, at the time the violation occurred; involving the use or
exhibition of a deadly weapon or dangerous instrument; of the provisions of
subsection (b) or (c), section nine, article two of this chapter where the
victim was a spouse, a person with whom the person seeking expungement had a
child in common or with whom the person seeking expungement ever cohabitated
prior to the offense; any violation of the provisions of section twenty-eight
of said article; a conviction for driving under the influence of alcohol,
controlled substances or a conviction for a violation of section three, article
four, chapter seventeen-b of this code or section nineteen, article eight of
this chapter.
(j) Preliminary and final orders of expungement for nonviolent felonies.
— If the court grants the petition for expungement pursuant to subdivision (2),
subsection (a) of this section, the court’s order shall be preliminary and
subject to a motion by the petitioner to make the order a final order of
expungement.
(1) Preliminary order of expungements. — A preliminary order of expungement shall order the
sealing of all court records and other records pursuant to subsection (k) of
this section related to the nonviolent felony or felonies that are the subject
of the petition. The preliminary order of expungement is subject to the
following limitations:
(A) Notwithstanding subsection (m) of this section, the
custodians of records subject to sealing pursuant to subsection (k) of this
section may inspect the sealed records without obtaining an order of the court
if inspection is made for a legitimate law enforcement purpose; and
(B) A preliminary order of expungement shall be vacated if
the petitioner is convicted of a felony or misdemeanor offense other than a
minor traffic violation subsequent to the entry of the order.
(2) Motion for final order of expungement. — A motion to make the preliminary order of expungement a
final order of expungement may not be made until five years after the
preliminary order of expungement was entered by the court.
(A) A
motion filed under this subdivision shall be verified under oath and include
information evidencing whether the petitioner:
(i) Has any felony or
misdemeanor convictions other than a minor traffic violation since entry of the
preliminary order of expungement;
(ii) Has outstanding
restitution orders or civil judgements representing amounts ordered for
restitution against the petitioner since the entry of the preliminary order of
expungement; or
(iii) Is subject of any
outstanding warrants or is currently the subject of a pending criminal
proceeding.
(B) Within sixty days of
the filing of a motion for a final order of expungement, the circuit court
shall:
(i) Summarily grant the
motion;
(ii) Set the matter for
hearing; or
(iii) Summarily deny the
petition if the court determines that the motion is insufficient or, based upon
supporting documentation and sworn statements filed in opposition to the
motion, the court determines that the petitioner, as a matter of law, is not
entitled to expungement. If the court determines that the petitioner is not
entitled to expungement as a matter of law, the court shall also vacate the
preliminary order of expungement.
(C) The provisions of
subsections (f), (g) and (h) of this section apply to a motion filed under this
subsection.
(j) (k) Sealing
of records. — If the court grants the petition for expungement, it
shall 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. Every agency with records relating to the
arrest, charge or other matters arising out of the arrest or conviction that is
ordered to expunge records shall certify to the court within sixty days of the
entry of the expungement order that the required expungement has been
completed. All orders enforcing the
expungement procedure shall also be sealed. For the purposes of this
section, "records" do not include the records of the Governor, the
Legislature or the Secretary of State that pertain to a grant of pardon. Such
records that pertain to a grant of pardon are not subject to an order of
expungement. The amendment to this section during the fourth extraordinary
session of the Legislature in the year 2009 is not for the purpose of changing
existing law, but is intended to clarify the intent of the Legislature as to
existing law regarding expungement.
(k) (l) Disclosure
of expunged proceedings. —
(1) Upon expungement, the proceedings in the matter shall
be deemed are considered never to have occurred. The court and other
agencies shall reply to any inquiry that no record exists on the matter. The
person whose record is expunged shall not have to disclose the fact of the
record or any matter relating thereto on an application for employment, credit
or other type of application: Provided,
That any person applying for a position in which he or she would be
engaging in the prevention, detection, investigation, prosecution or
incarceration of persons for violations of the law shall disclose any and all
convictions to his or her prospective employer regardless of whether the conviction
or convictions had been expunged pursuant to this section.
(2) No persons for whom
an order of expungement has been entered pursuant to this section may be found
guilty of perjury or otherwise giving a false statement, under any provision of
this code, because of that person’s failure to recite or acknowledge the
arrest, indictment, information, trial or conviction: Provided, That the person is in compliance with subdivision (1),
subsection (l) of this section.
(3) Persons required by
state law to obtain a criminal history record check on a prospective employee
are not considered to have knowledge of any convictions expunged under this
section.
(l) (m) Inspection
of sealed records. — Inspection of the sealed records in the court’s
possession may thereafter be permitted by the court only upon a motion by the
person who is the subject of the records or upon a petition filed by a
prosecuting attorney that inspection and possible use of the records in
question are necessary to the investigation or prosecution of a crime in this
state or another jurisdiction. If the court finds that there is a legitimate
reason for access and the interests of justice will be served by granting a
petition to inspect the sealed record, it may be granted under the terms and
conditions that the court determines.
(n) For the purposes of
this section:
(1) “Court record” means
an official record of a court about a proceeding that the clerk of the court or
other court personnel keeps. “Court record” includes an index, a docket entry,
a petition or other pleading, a memorandum, a transcription of proceedings, an
electronic recording, an order and a judgement;
(2) “Records” do not
include the records of the Governor, the Legislature or the Secretary of State
that pertain to a grant of pardon. Such records that pertain to a grant of
pardon are not subject to an order of expungement;
(3) “Seal” means to
remove information from public inspection in accordance with this section; and
(4) “Sealing” means:
(A) For a record kept in
a courthouse, removing to a separate, secure area to which persons who do not
have a legitimate reason for access are denied access;
(B) For electronic
information about a proceeding on the website maintained by the magistrate
court, circuit court or the Supreme Court of Appeals, removing the information
from the public website; and
(C) For a record
maintained by any law-enforcement agency, by removing to a separate, secure
area to which persons who do not have a legitimate reason for access are denied
access.
(o) The amendment to
this section during the fourth extraordinary session of the Legislature in 2009
is not for the purpose of changing existing law, but is intended to clarify the
intent of the Legislature as to existing law regarding expungement.
(p) The amendments made
to this section during the regular session of the Legislature in 2017 may be
known and cited as the Second Chance for Employment Act.
NOTE: The purpose of this bill is
to create the Second Chance for Employment Act. The bill defining terms. The
bill expands eligibility for criminal expungement to persons convicted of
certain nonviolent felonies. The bill defines “nonviolent felony”. The bill
provides exclusions to eligibility. The bill establishes timing for filing a
petition for expungement. The bill creates petition requirements and court
procedure for evaluates preliminary and final orders of expungement for
nonviolent felonies.
Strike-throughs indicate language
that would be stricken from a heading or the present law, and underscoring
indicates new language that would be added.