T.R.W., by counsel Rachel L. Fetty, appeals the Circuit Court
of Upshur County's August 23, 2016, order denying his
petition for expungement. Respondent State of West Virginia, by
counsel Zachary Aaron Viglianco, filed a summary response in
support of the circuit court's order. Petitioner argues
that the circuit court erred in finding that the requested
expungement was inconsistent with the public welfare.
Further, petitioner argues that the circuit court's
denial of his petition for expungement was a violation of his
substantive due process rights.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21(d) of the Rules of Appellate Procedure.
of 2000, the parents of two Upshur County teenage girls made
complaints to law enforcement officers that petitioner, the
then nineteen-year-old boyfriend of their sixteen-year-old
daughter, had sexually abused their fourteen-year-old
daughter. Law enforcement officers and a DHHR representative
subsequently interviewed the fourteen-year-old victim, who
described four separate instances in which she had sexual
contact with petitioner. First, the victim described that
petitioner was driving her home from a movie, when he pulled
his vehicle over alongside the roadway, and began kissing
her. Ultimately, petitioner inserted his finger into the
victim's sex organ. The victim described a second
incident wherein she and petitioner were at her home, with
her mother and sister in a nearby room, and petitioner
performed oral sex upon her.
third occasion, the victim described that petitioner was
driving her home from a track meet when he again pulled his
vehicle over alongside the roadway. The victim alleged that
she and petitioner began kissing and that he unzipped his
pants and she performed oral sex upon him after he stated
that it was "his turn." The final incident
described by the victim occurred at her residence, following
petitioner and the victim's sister's return to the
victim's home after a party. After arriving at the home,
the victim's sister went to her room and petitioner sat
down on the living room couch with the victim. Ultimately,
petitioner and the victim, then sharing a blanket, began to
touch one another under the blanket and petitioner inserted
his finger into the victim's sex organ.
the statement of the victim, law enforcement officers
contacted petitioner. Petitioner initially denied the
victim's allegations and opined that the victim
fabricated the allegations because she had "a crush on
him" and was "jealous" of the relationship
petitioner had with her older sister. On May 15, 2001, a
four-count indictment was returned against petitioner
charging him with violations of West Virginia Code §
61-8B-5, with each count relating to one of the four
instances of sexual contact described by the victim. On April
1, 2002, petitioner entered a guilty plea to three counts of
sexual abuse in the third degree, pursuant to West Virginia
Code § 61-8B-9. On May 15, 2002, petitioner was
sentenced to two ninety-day terms at Central Regional Jail.
However, these sentences were suspended and petitioner was
placed on probation for five years.
time of his sentence, petitioner acknowledged receipt of a
notice of sexual offender registration requirements.
Petitioner endorsed the notice, which explicitly advised that
petitioner's sex offender registration "must
continue for ten years from today or ten years following . .
. completion of your sentence, whichever is later."
Prior to petitioner's receipt of this notice, the West
Virginia Sex Offender Act, West Virginia Code § 15-12-1
through -10, was amended to require lifetime registration of
persons convicted of a qualifying offense if the victim was a
of 2005, petitioner was granted early release from probation.
In 2015, at the close of what petitioner believed to be his
ten-year sex offender registration requirement, he
"began to look into discharging from the registry."
Petitioner was then advised that he had to register for life,
as his offenses had involved a minor. On June 8, 2016,
petitioner filed a petition for expungement of his criminal
record under West Virginia Code § 61-11-26. The State
responded to the petition, on June 14, 2016, and noted that
while it could not "see any impediment to the
expungement sought[, ]" it requested that any order
issued make clear that expungement did not change
petitioner's lifetime sex offender registration
order entered August 23, 2016, the circuit court denied the
petition for expungement. The court found that petitioner
failed to establish, by clear and convincing evidence, that
the requested expungement was consistent with the public
welfare. The court further found that, in fact, expungement
of a lifetime reporter on the sex offender registry was
inconsistent with the public welfare. It is from the circuit
court's August 23, 2016, order that petitioner now
appeal, petitioner asserts four assignments of error. In his
first three assignments of error, he argues that the circuit
court abused its discretion and clearly erred in denying his
petition for expungement. In his fourth assignment of error,
petitioner argues that the profound burden of lifetime
registration for persons convicted of misdemeanor sex
offenses is not a rational mechanism for protection of the
community and, thus, violated petitioner's substantive
due process rights.
begin our analysis by noting that "[t]his Court reviews
a circuit court's order granting or denying expungement
of criminal records for an abuse of discretion." Syl.
Pt. 1, In re A.N.T., 238 W.Va. 701, 798 S.E.2d 623
(2017). Petitioner argues that the circuit court erred in
denying his petition for expungement as the expungement
statute, West Virginia Code § 61-11-26, "clearly
anticipated" expungement for youth offenders, such as
petitioner, who were convicted of misdemeanor sexual offenses
requiring lifetime sex offender registration.
argues that expungement of his record was proper as the
offenses of which he was convicted were not among those
barred from expungement by subsection (i) of West Virginia
Code § 61-11-26. Because West Virginia Code §
61-11-26 "do[es] not bar expungement based on
registration status or the offenses, " the circuit
court's determination that expungement was improper,
based simply upon petitioner's status as a lifetime
reporter, was error.
respondent argues that the language of West Virginia Code
§ 61-11-26 signifies that expungement is discretionary
in nature, given the consistent use of the word
"may" throughout the statute. Respondent also cites
to West Virginia Code § 15-12-1a(b), wherein the West
Virginia Legislature specifically noted that "there is a
compelling and necessary public interest that the public have
information concerning persons convicted of sexual offenses
in order to allow members of the public to adequately protect
themselves and their children from these persons."
upon our review of the record herein, we find that the
circuit court did not abuse its discretion or otherwise err
in denying petitioner's request for expungement.
Petitioner readily acknowledges that he was four years and
ten months older than the victim and that he had sexual
contact with the victim as described. Nonetheless, petitioner
characterizes the sexual contact between them as
"inappropriate contact between two adolescents."
Petitioner further describes his behavior as "not so
outside predictable adolescent behavior that it reflects or
predicts pedophilia or the potential" for him to
"re-offend or pose an ongoing danger to the
community." Like respondent, we find the facts of
petitioner's underlying convictions to be troubling and
agree that the evidence below establishes that petitioner
isolated the victim on multiple occasions and initiated the
inappropriate conduct. Given the particular ...