In Re: Petition of W.P. for Expungement of Record
County 17-P-49 and 50
W.P.,  pro se, appeals two orders of the Circuit
Court of Kanawha County, entered on March 2, 2017, denying
his petitions for expungement of the record in related
misdemeanor cases. Respondent State of West Virginia, by
counsel Benjamin F. Yancey, III, filed a summary response in
support of the circuit court's order. Petitioner filed a
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 of the Rules of Appellate Procedure.
29, 2011, petitioner was involved in an altercation with his
sister and another woman. According to the resulting criminal
complaints, petitioner was charged with misdemeanor domestic
battery pursuant to West Virginia Code § 61-2-28(a) for
grabbing his sister "by the throat and push[ing] her
down" onto a lounge chair and misdemeanor battery
pursuant to West Virginia Code § 61-2-9(c) for shoving
the other woman "with an open hand in the chest while
she was holding a 9[-]month[-]old baby in a baby
and the State entered into a pretrial diversion agreement
pursuant to West Virginia Code § 61-11-22. The parties
agreed that each misdemeanor charge would be dismissed if
petitioner successfully completed the pretrial diversion
program, which was to last six months. The Magistrate Court
of Kanawha County accepted the parties' agreement and
placed petitioner in the pretrial diversion program by order
entered on November 15, 2011. The magistrate court's
order was entered in Case No. 11-M-6104 regarding the battery
charge, but reflected that the State also agreed "to
dismiss [Case No.] 11-M-6041, " the case regarding the
domestic battery charge, at the end of the pretrial diversion
petitioner's successful completion of the pretrial
diversion program, the magistrate court dismissed the charges
in separate orders entered on May 22, 2012. In Case No.
11-M-6041, the magistrate court dismissed the domestic
battery charge, noting that it was "per plea" in
the related Case No. 11-M-6104. In No.11-M-6104, the
magistrate court dismissed the battery charge, noting that
the pretrial diversion program was successfully completed.
February 17, 2017, petitioner filed a petition for
expungement of the record in the Circuit Court of Kanawha
County with regard to the domestic battery charge. On
February 21, 2017, petitioner filed a similar petition with
regard to the battery charge. By separate orders entered on
March 2, 2017, the circuit court denied the petitions. In
each order, the circuit court noted that it "review[ed]
the official court file" and found that "good
cause" existed for denying petitioner's request for
now appeals the circuit court's March 2, 2017, orders
denying his petitions for expungement of the
record. "This 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).
appeal, petitioner states that he seeks expungement of the
record pursuant to West Virginia Code § 61-11-25, under
which "a court may expunge records relating to certain
criminal charges 'when [the] criminal charges are
dismissed (not as part of a plea agreement).'"
A.N.T., 238 W.Va. at 704, 798 S.E.2d at 626 (quoting
Mullen v. State, Div. of Motor Vehicles, 216 W.Va.
731, 733, 613 S.E.2d 98, 100 (2005)). The State counters that
the circuit court properly denied the petitions. We agree
with the State.
does not dispute that he was charged with domestic battery
pursuant to West Virginia Code § 61-2-28, which
prohibits acts of domestic violence. West Virginia Code
61-11-22(e) provides, in pertinent part, that West Virginia
Code § 61-11-25 is "inapplicable to defendants
participating in pretrial diversion programs who are charged
with a violation of [West Virginia Code §
61-2-28]." Therefore, we find that petitioner is not
eligible to seek expungement of the record under West
Virginia Code § 61-11-25.
syllabus point 2 of A.N.T., we reiterated that the
circuit court has the inherent power to expunge the record in
"extraordinary circumstances." 238 W.Va. at 702,
798 S.E.2d at 624 (quoting Syl. Pt. 1, State ex rel.
Barrick v. Stone, 201 W.Va. 569, 499 S.E.2d 298 (1997)).
We find that incidents of domestic violence are not
extraordinary, but all too common. We agree with the State
that the circumstances of this case provided the circuit
court with sufficient cause to deny petitioner's requests
for the expungement of the record. See A.N.T., 238
W.Va. at 702-3, 798 S.E.2d at 624-5 (reversing an order of
expungement where the petitioner was charged with domestic
assault arising out of an altercation with her husband).
Therefore, we conclude that the circuit court properly denied
petitioner's petitions for expungement.
foregoing reasons, we affirm the circuit court's March 2,
2017, orders denying petitioner's petitions for
expungement of the record.
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin Jean Davis Justice Margaret L. Workman Justice Menis ...