WEST virginia
legislature
2017 regular session
By
[
to the Committee on 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 Act; defining terms; expanding eligibility for expungement to
persons convicted of nonviolent felonies; defining “nonviolent felony”;
providing exceptions to eligibility and timing of filing a petition for
expungement; creating petition requirements and court procedure for evaluating
preliminary and final orders of expungement for nonviolent felonies; providing
limitations on preliminary orders 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 expungement.
(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 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, 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 expungement – 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 where 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;
(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; or
(E) A prior
conviction in this state or another state for a crime that requires
registration as a sex offender pursuant to article twelve, chapter fifteen of
this code.
(2) Temporal
requirements –
(A) No person shall
be eligible for expungement pursuant to subdivision (1) of subsection (a) of
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 preliminary
order of expungement pursuant to subdivision (2) of subsection (a) of this
section until five years after completion of any sentence of incarceration or
completion of any period of supervision, whichever is later in time.
(C) No person shall be eligible for
permanent expungement pursuant to subdivision (2) of subsection (a) of this
section until five years after an order is entered granting the person’s petition
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 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, the
petitioner may not be the subject of arrest or any other pending criminal
proceeding;
(B) Has violated the provisions of section
twenty-eight, article two of this chapter;
(C) 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; or
(D) Conviction of any offense which
disqualifies such person of forever holding any office of honor, trust or
profit in this state.
(c) (d) Content of petition for expungement
- 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 expungement -
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 or entities:
(1) The Superintendent
of the State Police;
(2) The
prosecuting attorney of the county of conviction;
(3) The chief of
police or other executive head of the municipal police department wherein the
offense was committed;
(4) The chief
law-enforcement officer of any other law-enforcement agency which participated
in the arrest of the petitioner;
(5) The
superintendent or warden of any institution in which the petitioner was
confined;
(6) The
magistrate court or municipal court which disposed of the petitioner's criminal charge; and
(7) 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 subdivision (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) (c) of this
section; (2) that 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) of 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; or
(2) For persons eligible pursuant to
subdivision (2) of 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 expungement – 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 judgments 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. This subsection
shall not apply to the Department of Justice for DNA records and samples stored in the State DNA Database and the State DNA Databank or to fingerprint records. 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 pursing certification under the provisions of article twenty-nine,
chapter thirty of this code or employment as a law-enforcement officer by a
West Virginia law-enforcement agency or a state institution of higher education
or the Public Service Commission of West Virginia, shall disclose any and all
convictions for the purpose of certification or seeking employment, regardless
of whether the convictions were expunged pursuant to this section.
(2) No person 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 of 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 judgment.
(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.
(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 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.
(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
Act.”
NOTE: The purpose of this bill is
to expand eligibility for expungement to persons convicted of nonviolent
felonies; define nonviolent felony, providing exceptions to eligibility and
timing of filing a petition for expungement; create petition requirements and
court procedure for evaluating preliminary and final orders of expungement for
nonviolent felonies; provide limitations on preliminary orders of expungement;
clarify disclosure requirements with respect to the information sealed pursuant
to an order of expungement, including exemptions; and provide standard for
inspection of sealed records.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.