IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2019 Term
FILED
November 22, 2019
No. 18-0480 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
V.
A.D.,
Defendant Below, Petitioner
________________________________________________________
Appeal from the Circuit Court of Harrison County
The Honorable James A. Matish, Judge
Criminal Action No. 16-P-138-3
REVERSED AND REMANDED
_________________________________________________________
Submitted: October 1, 2019
Filed: November 22, 2019
J. Michael Benninger Patrick Morrisey
Benninger Law PLLC Attorney General
Morgantown, West Virginia Elizabeth Davis Grant
Attorney for Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
JUSTICE JENKINS delivered the Opinion of the Court.
i
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
i
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).
ii
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
1
It is this Court’s customary practice in cases involving sensitive facts to
refer to parties by their initials rather than by their given names. See In re Jeffrey R.L., 190
W. Va. 24, 26 n.1, 435 S.E.2d 162, 164 n.1 (1993).
1
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 marihuana2 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
2
Marihuana is a Schedule I controlled substance. See W. Va. Code § 60A-
2-204(d) (LexisNexis 2014).
3
West Virginia Code § 60A-4-401(a)(ii) (LexisNexis 2014) states:
(a) Except as authorized by this act, it is unlawful for any
person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance.
Any person who violates this subsection with respect to:
....
(ii) Any other controlled substance classified in Schedule I, II,
or III is guilty of a felony and, upon conviction, may be
imprisoned in the state correctional facility for not less than
one year nor more than five years, or fined not more than
fifteen thousand dollars, or both[.]
2
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
4
West Virginia Code § 60A-4-401(c) (LexisNexis 2014) states:
It is unlawful for any person knowingly or intentionally
to possess a controlled substance unless the substance was
obtained directly from, or pursuant to, a valid prescription or
order of a practitioner while acting in the course of his
professional practice, or except as otherwise authorized by this
act. Any person who violates this subsection is guilty of a
misdemeanor, and disposition may be made under section four
hundred seven [§ 60A-4-407] of this article, subject to the
limitations specified in said section, or upon conviction, such
person may be confined in jail not less than ninety days nor
more than six months, or fined not more than one thousand
dollars, or both: Provided, That notwithstanding any other
provision of this act to the contrary, any first offense for
possession of Synthetic Cannabinoids as defined by
subdivision (32) subsection, (d), section 101 [§ 60A-4-101],
article 1 of this chapter; 3,4-methylenedioxypyrovalerone
(MPVD) and 3,4-methylenedioxypyrovalerone and/or
mephedrone as defined in subsection (f), section 101, article 1
of this chapter; or less than 15 grams of marijuana, shall be
disposed of under said section.
5
West Virginia Code § 60A-4-407(a) (LexisNexis 2014) states, in relevant
part:
Whenever any person who has not previously been
convicted of any offense under this chapter or under any statute
3
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
of the United States or of any state relating to narcotic drugs,
marihuana, or stimulant, depressant, or hallucinogenic drugs,
pleads guilty to or is found guilty of possession of a controlled
substance under section 401(c) [§60A-4-401], the court,
without entering a judgment of guilt and with the consent of
the accused, may defer further proceedings and place him or
her on probation upon terms and conditions. Upon violation of
a term or condition, the court may enter an adjudication of guilt
and proceed as otherwise provided. Upon fulfillment of the
terms and conditions, the court shall discharge the person and
dismiss the proceedings against him or her. Discharge and
dismissal under this section shall be without adjudication of
guilt and is not a conviction for purposes of this section or for
purposes of disqualifications or disabilities imposed by law
upon conviction of a crime, including the additional penalties
imposed for second or subsequent convictions under section
408 [§ 60A-4-408]. . . .
4
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 intent behind the distribution statute, Your
Honor.
. . . . Ultimately, it was decided that this was an
inappropriate charge, that this young lady did not deserve to be
saddled with a felony for her actions as far as distribution goes.
....
5
That is the State’s position. I do not have an objection
to expungement of either type[.]
Despite this testimony from the State, the circuit court concluded that it could not expunge
the record of the felony charge, because, contrary to the representations made by the State,
the misdemeanor plea was entered in exchange for the dismissal of the felony. See W. Va.
Code § 61-11-25 (LexisNexis 2014) (prohibiting expungement where charges have been
dismissed in exchange for a plea of guilty to another charge). The circuit court also
summarily rejected A.D.’s expungement argument based on West Virginia Code § 60A-4-
407(b).
On April 15, 2018, the circuit court entered an order expunging the
misdemeanor plea, but denying A.D.’s petition for expungement of the records relating to
her felony arrest. The circuit court found that it had the authority to expunge the
misdemeanor offense pursuant to West Virginia Code § 60A-4-407(b), but declined to
expunge the felony record, finding that West Virginia Code § 61-11-25 does not allow for
the expungement of offenses that are dismissed in exchange for a guilty plea to another
offense. A.D. now appeals the April 15, 2018 order that denied her motion to expunge the
records related to her felony arrest.
6
II.
STANDARD OF REVIEW
On appeal, “[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). To resolve the instant matter, “[w]here the issue on
an appeal from the circuit court is clearly a question of law or involving an interpretation
of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie
A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we now
address the issue presented.
III.
DISCUSSION
The parties agree that A.D.’s felony arrest was based upon her circulation of
a cigarette containing less than fifteen grams of marihuana and that she received no
remuneration. A.D. contends that the circuit court abused its discretion and erred when it
wrongly applied West Virginia Code § 61-11-25 and refused to expunge the record of her
first-offense felony arrest for possession of marihuana with intent to deliver. She also
argues that, the circuit court abused its discretion when it refused to expunge her felony
record under West Virginia Code § 60A-4-407(b) after she pled guilty to misdemeanor
possession under § 401(c), complied with the terms of her probation granted under
§ 407(a), and satisfied all of the requirements under § 407(b). The State argues that West
7
Virginia Code § 60A-4-407(b) applies only to first offense possession, a misdemeanor;
therefore, it cannot apply to A.D. insofar as she was arrested for distribution, a felony. We
agree with A.D.’s interpretation of the relevant statutes.
At issue in this case are two distinct expungement statutes, West Virginia
Code § 61-11-25, which is the general expungement statute, and West Virginia Code
§ 60A-4-407(b), which applies to certain specific first-time offenders. We find West
Virginia Code § 60A-4-407(b) is the provision that should have been applied to A.D. by
the circuit court.
A.D. was originally charged under West Virginia Code § 60A-4-401(a)(ii),
which is a provision of the Uniform Controlled Substances Act. This was A.D.’s first drug-
related offense, and it involved less than fifteen grams of marihuana.6 The fact that A.D.’s
charge involved a first-offense of distributing less than fifteen grams of marihuana, gives
rise to another provision of the Act, West Virginia Code § 60A-4-402(c). West Virginia
Code § 60A-4-402(c) expressly states that, “[n]otwithstanding any other provision of this
chapter to the contrary, any first offense for distributing less than 15 grams of marihuana
without any remuneration shall be disposed of under section 407 [§ 60A-4-407].”
(Emphasis added). The foregoing language is plain and mandatory. See, e.g., Syl. pt. 2,
6
The parties do not dispute that the offense involved less than fifteen grams
of marihuana. The parties also do not dispute that the original charge—under West
Virginia Code § 60A-4-401(a)(ii)—was not the appropriate charge. See supra Part I, at 5-
6.
8
State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951) (“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.”). See also Syl. pt. 1, Nelson v. W. Va.
Pub. Emp.s Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982) (“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.”). Therefore, because
A.D.’s felony case concerned a “first offense for distributing less than 15 grams of
marihuana without any remuneration,” West Virginia Code § 60A-4-402(c) requires that
the matter be disposed of under West Virginia Code § 60A-4-407.
The provision of West Virginia Code § 60A-4-407 applicable to the instant
matter is found in subsection (b), which clearly and unambiguously mandates expungement
upon the fulfillment of certain conditions:
After a period of not less than six months which shall
begin to run immediately upon the expiration of a term of
probation imposed upon any person under this chapter, the
person may apply to the court for an order to expunge from all
official records all recordations of his or her arrest, trial, and
conviction, pursuant to this section. If the court determines
after a hearing that the person during the period of his or her
probation and during the period of time prior to his or her
application to the court under this section has not been guilty
of any serious or repeated violation of the conditions of his or
her probation, it shall order the expungement.
W. Va. Code § 60A-4-407(b) (emphasis added). Under the language of § 60A-4-407(b),
once a term of probation “imposed upon any person” under Chapter 60A has ended, that
9
person may then apply for expungement. (Emphasis added). After such an application has
been made, the lower court must then hold a hearing in order to determine whether, “during
the period of time prior to his or her application to the court under this section [the
appellant] has [ ] been guilty of any serious or repeated violation of the conditions of his
or her probation.” Id. If no such violation is found, the lower court “shall order the
expungement.” Id. A.D. satisfied each of these requirements.
We find further support for our application of the foregoing statutes in this
Court’s decision in State v. Carper, 176 W. Va. 309, 342 S.E.2d 277 (1986). In Carper,
the defendant pleaded guilty to the delivery of less than fifteen grams of marihuana without
remuneration. After pleading guilty, the defendant’s counsel argued that, under West
Virginia Code § 60A-4-402(c), his client was entitled to mandatory probation pursuant to
West Virginia Code § 60A-4-407. The circuit court disagreed, and found that under its
interpretation of the law, West Virginia Code § 60A-4-402(c) did not apply to the
defendant. As such, the defendant did not receive probation, and he was sentenced.
On appeal, the defendant argued that §§ 60A-4-402(c) and 60A-4-407 of the
West Virginia Code should be read together, and therefore, probation should be mandatory.
This Court agreed with the defendant’s argument, and commented that “[t]his result is
reached because W. Va. Code, 60A-4-402(c), states that a person whose first drug-related
offense is distributing less than fifteen grams of marihuana without remuneration ‘shall be
10
disposed of under’ W. Va. Code, 60A-4-407.” State v. Carper, 176 W. Va. 309 at 311,
342 S.E.2d 277 at 279. The Carper Court explained that,
the actual language of W. Va. Code, 60A-4-402(c), is not
confined to W. Va. Code, 60A-4-402[] offenses, as it is
prefaced with the following language: “Notwithstanding any
other provision of this chapter [Chapter 60A] to the contrary.”
(Emphasis added). We cannot ignore this language. Under our
customary rules of statutory construction, we have often held
that the legislature is presumed to intend that every word used
in a statute has a specific purpose. State ex rel. Johnson v.
Robinson, 162 W. Va. 579, 251 S.E.2d 505 (1979); Wooddell
v. Dailey, 160 W. Va. 65, 230 S.E.2d 466 (1976).
Carper, 176 W. Va. 309 at 312, 342 S.E.2d 277 at 280.
Furthermore, as Carper recognized, the Uniform Controlled Substances Act,
in particular § 60A-4-407(b), identifies the consequences of drug-related charges among
young adults and, thus, provides for remedial efforts, such as probation, when only a small
amount of marihuana is involved:
This Court takes notice of the pervasive abuse of controlled
drugs among adolescents and young adults too inexperienced
to be aware of the dangers of narcotics. The Uniform
Controlled Substances Act, W. Va. Code, 60A-4-401(c) and
60A-4-407 [1971] recognize[s] this problem by making first
offense possession of under 15 grams of marihuana a
misdemeanor with mandatory probation.
Carper, 176 W. Va. at 311, 342 S.E.2d at 279 (1986) (quoting State v. Dudick, 158 W. Va.
629, 213 S.E.2d 458, 467 (1975)). The Carper Court noted further, that
Dudick’s comment on mandatory probation was
reinforced when we spoke to the interaction between W. Va.
Code, 60A-4-401, and W. Va. Code, 60A-4-407, in State v.
11
Barnett, 161 W. Va. 6, 240 S.E.2d 540 (1977). In Barnett, the
defendant had a previous drug-related offense and we said that
in this situation a court “is under no mandatory duty to dispose
of the case in accordance with the provisions of W. Va. Code,
1931, 60A-4-407, as amended.” Syllabus Point 1, in part, State
v. Barnett, supra. The clear implication of Barnett is that if the
defendant had not had a prior drug-related offense, probation
would have been mandated under W. Va. Code, 60A-4-407.
Carper, 176 W. Va. at 311, 342 S.E.2d at 279-80. Finally, the Carper Court explained that
The implicit point made in Dudick is that where the
legislature has mandated probation treatment in one section of
the Uniform Controlled Substances Act, the section dealing
with probation, W. Va. Code, 60A-4-407, [it] must be treated
as mandatory. This is precisely the point in this case, with
W. Va. Code, 60A-4-402(c), mandating treatment under the
probation section, W. Va. Code, 60A-4-407.
The underlying premise of Dudick was that the
legislature intended that less than fifteen grams of marihuana
might be possessed by young adults who were unaware of its
dangers. The same may be said of an unremunerative delivery
of less than fifteen grams of marihuana between friends.
Carper, 176 W. Va. 309 at 312, 342 S.E.2d 277 at 281.
The foregoing reasoning applies not only to probation under West Virginia
Code § 60A-4-407(a), but applies with equal strength to the expungement provision found
in West Virginia Code § 60A-4-407(b). This is particularly true in light of the fact that
“[p]enal statutes must be strictly construed against the State and in favor of the defendant.”
Syl. pt. 3, State ex rel. Carson v. Wood, 154 W. Va. 397, 175 S.E.2d 482 (1970). Indeed,
the case at hand perfectly illustrates the legislature’s intent and policy considerations in
12
allowing remedial measures under § 60A-4-407: a young woman was wrongly charged
with a felony and she does not deserve to be burdened with a felony arrest record for the
rest of her life.7 Accordingly, based upon the foregoing analysis, we hold that 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).
Applying this holding to the instant case, we find that A.D. is entitled to
mandatory expungement of her felony record under West Virginia Code § 60A-4-407(b).8
A.D. is a first-time offender whose drug-related offense involved distributing less than
fifteen grams of marihuana without remuneration. Therefore, pursuant to West Virginia
Code § 60A-4-402(c), she was entitled to apply for expungement under West Virginia
7
West Virginia’s Uniform Controlled Substances Act is based upon a model
act adopted by the National Conference of Commissioners on Uniform State Laws in 1970,
and West Virginia Code § 60A-4-407 is based upon Section 407 of the model act. The
reporter’s notes to the model act indicate that individuals who qualify for consideration
under Section 407 “are either casual drug users or experimenters[.]” UNIFORM
CONTROLLED SUBSTANCES ACT § 407, Comment (1970) (in Handbook of the National
Conference of Commissioners on Uniform State Laws 251 (1970)). The reporter’s notes
go on to state that Section 407 was drafted to “provide[] for confidentiality of the
defendant’s record” and to “preclude any permanent criminal record from attaching to and
following the individual in later life.” Id.
8
It should be noted that A.D. was not adjudged guilty.
13
Code § 60A-4-407(b) after successfully completing her probation, and satisfying the six
month waiting period. She applied in accordance with the provisions set forth in the statute;
therefore, upon confirming that A.D. had not been guilty of any serious or repeated
violation of the condition of her probation, the circuit court had a mandatory duty to grant
her petition for expungement in accordance with the provisions of West Virginia Code
§ 60A-4-407(b).9
We caution, however, that our holding should not be interpreted as a gateway
to the expungement of felony records that are not plainly and unambiguously first offenses.
In other words, we limit our holding to the facts of the present case which involves an
undisputed first-time offender under the clear meaning of § 60A-4-402(c). Thus, this
holding should not be construed to allow for the expungement of records when an
individual is—for example—charged with a first offense of possession of less than 15
grams of marihuana under § 60A-4-407(b) and simultaneously a more serious distribution
charge such as the distribution of heroin. See, e.g., Hutchinson v. Dietrich, 183 W. Va. 25,
27, 393 S.E.2d 663, 665 (1990) (“This Court believes that the Legislature, in enacting
W. Va. Code, 60A-4-402(c), did not intend that individuals involved in the traffic of drugs
9
A.D. raises two statutory arguments to support her position that her felony
record should have been expunged by the circuit court. In light of our decision that the
circuit court erred in failing to expunge her felony record under the mandatory provision
in West Virginia Code § 60A-4-407(b), we need not address A.D.’s alternative argument
that her felony record could have also been expunged under this State’s general
expungement statute, West Virginia Code § 61-11-25.
14
other than marijuana be accorded special, mandatory probation. As previously indicated,
the Legislature has been specific in W. Va. Code, 60A-4-402(c), as to the individuals
entitled to special treatment, and in Carper the Court suggested that the Carper rule was
not to be extended to those engaged in other types of drug activity.”). Under the facts of
this scenario, an individual cannot manipulate the statute to obtain mandatory expungement
of the heroin charge.10
IV.
CONCLUSION
For the reasons set forth above, the April 15, 2018 order of the Circuit Court
of Harrison County denying A.D.’s petition for expungement of her felony arrest is
reversed, and this case is remanded with instructions to the Circuit Court of Harrison
County to expunge A.D.’s felony record under West Virginia Code § 60A-4-407(b).
Reversed and Remanded.
10
An individual also cannot manipulate the statute to obtain additional
dismissals at a later time. “There may be only one discharge and dismissal under this
section with respect to any person.” W. Va. Code § 60A-4-407(a).
15
State of West Virginia v. A.D.
Combined Opinion