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In re Petition of A.N.T. For Expungement of Records

Supreme Court of West Virginia

April 5, 2017

IN RE: PETITION OF A.N.T. FOR EXPUNGEMENT OF RECORDS

          Submitted: February 28, 2017

         Appeal from the Circuit Court of Ohio County The Honorable David J. Sims, Judge Civil Action No. 15-P-161

          Gail W. Kahle, Esq. Ohio County Assistant Prosecuting Attorney Wheeling, West Virginia Counsel for the Petitioner

          Patrick Morrisey, Esq. Attorney General Zachary A. Viglianco, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Petitioner

          Joseph J. John, Esq. John & Werner Law Offices, PLLC Wheeling, West Virginia Counsel for the Respondent

          Valena Beety, Esq. Lisa Hartline, Rule 10 Student Attorney The West Virginia Innocence Project Morgantown, West Virginia Counsel for Amicus Curiae

          Jamie L. Crofts, Esq. ACLU of West Virginia Foundation Charleston, West Virginia Counsel for Amicus Curiae

          Bruce Perrone, Esq. Legal Aid of West Virginia, Inc. Charleston, West Virginia Counsel for Amicus Curiae

          Jennifer Oliva, Esq. West Virginia Veterans Advocacy Clinic Morgantown, West Virginia Counsel for Amicus Curiae

          SYLLABUS

         1. This Court reviews a circuit court's order granting or denying expungement of criminal records for an abuse of discretion.

         2. "A circuit court, absent extraordinary circumstances and to protect constitutional rights or some other compelling public policy imperative, does not in the absence of statutory authority have the power to order the expungement of criminal history record information regarding a valid criminal conviction maintained by the State Police Criminal Investigation Bureau pursuant to W.Va.Code, 15-2-24 [1977]." State ex rel. Barrick v. Stone, 201 W.Va. 569, 570, 499 S.E.2d 298, 299 (1997).

          KETCHUM JUSTICE.

In this appeal, we are asked to determine whether the Circuit Court of Ohio County erred by granting the respondent, A.N.T. s, [1] request to expunge her criminal records. The State asserts that the circuit court lacked the authority to order expungement. Upon review, it is clear that the circuit court had no authority, by statute or its inherent power, to order expungement of A.N.T.'s criminal records. Therefore, we reverse the circuit court's order.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This case arises from a single incident on the night of August 15, 2014, in which then thirty-two-year-old A.N.T. illegally discharged a gun in a relatively crowded neighborhood. A.N.T. alleges she was under severe emotional distress and anxiety stemming from the death of her son two years before. When her husband, a police officer, tried to leave their house for work, she tried to keep him from leaving by rushing to his closet and grabbing his service gun. Despite her husband's pleas, A.N.T. refused to give him his service gun. Instead, she rushed out of the house and into the backyard. There, she discharged a single shot into the ground.

          A.N.T's four children (all of whom were less than ten years old) were at home when she discharged the gun. A neighbor heard the gunshot and reported it to the Wheeling Police Department. Shortly thereafter, A.N.T. was arrested by Wheeling Police officers and charged with domestic assault against her husband.

         Acting on her lawyer's advice, A.N.T. entered into a plea agreement with the State pursuant to which the State dropped the domestic assault charge. In exchange, A.N.T. agreed to plead no contest to discharging a firearm within 500 feet of a dwelling.[2]The magistrate court accepted the plea agreement. She was convicted and fined $50.00.

         Thereafter, A.N.T., who was employed by a health-maintenance organization and possessed a West Virginia teaching certificate, sought to obtain an Ohio teaching certificate. The Ohio teaching certificate application required her to answer ...


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