Senate Bill No. 4001
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
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[Introduced November 17, 2009; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §5-1-16a of the Code of West Virginia,
1931, as amended; and to amend and reenact §61-11-26 of said
code, all relating to clarifying that records of the Governor,
the Legislature and the Secretary of State pertaining to a
grant of pardon are not subject to an order of expungement.
Be it enacted by the Legislature of West Virginia:
That §5-1-16a of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §61-11-26 of said code be
amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 1. THE GOVERNOR.
§5-1-16a. Expungement of criminal record upon full and
unconditional pardon.
(a) Any person who has received a full and unconditional
pardon from the Governor, pursuant to the provisions of section
eleven, article VII of the Constitution of West Virginia and
section sixteen of this article, may petition the circuit court in
the county where the conviction was had to have the record of such
conviction expunged. The petition shall be served upon the
prosecuting attorney of the county where the petition was filed.
Any person petitioning the court for an order of expungement shall
publish a notice of the time and place that such petition will be
made, which notice shall be published as a Class I legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area for such
publication shall be the county where the petition is filed. The
circuit court, upon verification of the act of pardon and after a
hearing to determine that good cause exists, may enter an order
directing that all public record of the petitioner's conviction be
expunged.
For the purposes of this section, "public record" or
"record" does 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.
(b) The record expunged pursuant to the provisions of this
section may not be considered in an application to any educational
institution in this state or an application for any licensure
required by any professional organization in this state.
(c) No person shall be eligible for expungement pursuant to
this section until one year after having been pardoned.
(d) No person shall be eligible for expungement pursuant to
this section until five years after the discharge of his or her
sentence upon the conviction for which he or she was pardoned.
(e) No person shall be eligible for expungement of a record of
conviction of first degree murder, as defined in section one,
article two, chapter sixty-one of this code; treason, as defined in
section one, article one of said chapter; kidnapping, as defined in
section fourteen-a, article two of said chapter; or any felony
defined in article eight-b of said chapter.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-26. Expungement of certain criminal convictions;
procedures; effect.
(a) 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 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.
(b) Expungement shall not be available for any conviction of
an offense listed in subsection (j) 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.
(c) 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) A copy of the petition, with any supporting documentation,
shall be served by petitioner pursuant to the rules of the trial
court upon 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;
and 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) 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 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. 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. The petitioner
may file a reply no later than ten days after service of any notice
of opposition to the petition for expungement.
(f) 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) that the requisite time period has passed since
the conviction or convictions or end of the completion of any
sentence of incarceration or probation; (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) Within sixty days of the filing of a petition for
expungement the circuit court shall:
(1) Summarily grant the petition;
(2) Set the matter for hearing; or
(3) 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) 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) 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) Upon expungement, the proceedings in the matter shall be
deemed 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.
(l) 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 the interests of justice will be served by
granting a petition to inspect the sealed record, it may be
granted.
NOTE: The purpose of this bill is to clarify that records of
the Governor, the Legislature and the Secretary of State pertaining
to pardons are not subject to an order of expungement.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.