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State v. A.D.

Supreme Court of Appeals of West Virginia

November 22, 2019

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
v.
A.D., Defendant Below, Petitioner

          Submitted: October 1, 2019

          Appeal from the Circuit Court of Harrison County The Honorable James A. Matish, Judge Criminal Action No. 16-P-138-3

          J. Michael Benninger Benninger Law PLLC Attorney for Petitioner

          Patrick Morrisey, Elizabeth Davis Grant, Attorneys for Respondent

         SYLLABUS BY THE COURT

         1. "This Court reviews a circuit court's order granting or denying expungement of criminal records for an abuse of discretion." Syllabus point 1, In re A.N.T., 238 W.Va. 701, 798 S.E.2d 623 (2017).

         2. "A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syllabus point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).

         3. "It is well established that the word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syllabus point 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).

         4. "Penal statutes must be strictly construed against the State and in favor of the defendant." Syllabus point 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).

         5. West Virginia Code § 60A-4-402(c) (2014) mandates that if a defendant who has been found guilty of a first offense for distributing less than fifteen grams of marihuana without any remuneration, and satisfies the conditions of West Virginia Code § 60A-4-407 (2014), then the defendant is entitled to expungement of any record of his or her arrest directly connected to the offense as required by West Virginia Code § 60A-4-407(b).

          OPINION

          JENKINS JUSTICE

         Petitioner A.D. [1] herein appeals from the April 15, 2018 order of the Circuit Court of Harrison County that denied her petition for expungement of her felony charge. A.D. contends that the circuit court erred when it denied her petition for expungement of a felony charge under West Virginia Code §§ 60A-4-407(a) and (b) (LexisNexis 2014) after she had pleaded guilty to a related misdemeanor charge subsequently filed under § 60A-4-401(c) (LexisNexis 2014); served a term of probation, and fully satisfied all requirements of West Virginia Code § 60A-4-407(b), and the case against her had been dismissed. Having considered the briefs submitted on appeal, the appendix record, the parties' oral arguments, and the applicable legal authority, we find that the circuit court erred in denying A.D.'s petition for expungement of her felony charge. Accordingly, we reverse the circuit court's final order and remand this case with instructions to expunge the records of A.D.'s felony charge pursuant to West Virginia Code § 60A-4-407(b).

         I.

         FACTUAL AND PROCEDURAL HISTORY

         On December 22, 2013, A.D. was involved in a car accident in Harrison County, West Virginia. Passengers in A.D.'s vehicle gave statements to law enforcement that, while driving, she was smoking a marihuana cigarette with them. Following an investigation, Trooper First Class Joseph M. Bush ("Trooper Bush"), of the West Virginia State Police obtained an arrest warrant in magistrate court nine months later, on September 2, 2014, and arrested A.D. for the felony offense of possession of marihuana[2] with intent to deliver, pursuant to West Virginia Code § 60A-4-401(a)(ii).[3] On September 16, 2014, A.D. appeared with her counsel, and she was given a personal recognizance bond. The same day, she waived her preliminary hearing, and the felony matter was placed in bound-over status in the circuit court.

         On October 9, 2015, nearly twenty-two months after the automobile accident, the Harrison County Prosecutor's Office ("the State") filed a criminal complaint, charging A.D. with the misdemeanor offense of unlawful possession of marihuana based upon the same conduct underlying the felony arrest warrant filed by Trooper Bush on September 2, 2014. A.D. pleaded guilty to the misdemeanor offense of possession of less than fifteen grams of marihuana without remuneration, as set out in West Virginia Code § 60A-4-401(c), [4] and was sentenced to six months of unsupervised probation. Because she was a first-time offender for possession of marihuana, the matter was held open, pending the completion of her probation, at which time the matter would be dismissed pursuant to West Virginia Code § 60A-4-407(a).[5]

         On October 13, 2015, the State and A.D. filed a joint motion in circuit court to dismiss with prejudice her felony case for possession of marihuana with intent to distribute. The judge entered an agreed order dismissing the felony case, with prejudice. Following the expiration of A.D.'s unsupervised probation, the misdemeanor offense was dismissed in magistrate court on April 19, 2016.

         With both matters having been dismissed, A.D. filed a petition for the expungement of her criminal record-both the felony charge and the misdemeanor offense-on August 16, 2016, and she subsequently filed an amended petition for expungement on October 27, 2016. The circuit court held a hearing on A.D.'s amended petition for expungement on November 3, 2016. A.D.'s counsel argued that her entire criminal record should be expunged under West Virginia Code § 60A-4-401(c) and West Virginia Code §§ 60A-4-407(a) and (b) because "the amount [of marihuana in A.D.'s possession] was so small that it clearly, factually qualified for a less than 15 grams under 401(c)." At the hearing, the State did not object to the expungement of either the felony or the misdemeanor records. The State further averred:

There was at no point in time that [the former prosecuting attorney], myself, or the office believed that the charge was appropriate or fair when it was charged as a delivery of a controlled substance when you have 20 year old children, for lack of a better word, or young adults passing around a marijuana cigarette.
Your Honor, and I by no stretch of the imagination am trying to disparage Trooper Bush's name, but the appropriate charge out of this would have potentially been a DUI or a DUI with injury. Both of these would be misdemeanor offenses. For whatever reason, [Trooper Bush] did not file his charges within a year of this accident. In fact, this felony charge was filed well after the year of this accident. The only thing he had left following a year was a felony charge.
The appropriate charge probably could have been a DUI, which would've been a misdemeanor, but Trooper Bush did not meet his statute of limitations, and I'm not really sure if he felt that it was better to throw something at [A.D.] as opposed to nothing, but he came up with this felony charge.
Never, in the history of my tenure as a prosecutor, have I seen a young adult charged with delivery of a controlled substance for smoking a joint with her friends. Yes, it's illegal, but that is not the ...

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