WEST virginia legislature
2017 regular session
Senate Bill 76
Senators Jeffries, Romano, Miller, Ojeda, Woelfel, Beach, Gaunch, Facemire and Stollings, original sponsors
[Passed April 8, 2017; in effect 90 days from passage]
AN ACT to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §61-11B-1, §61-11B-2, §61-11B-3, §61-11B-4 and §61-11B-5, all relating to establishment of a criminal offense reduction program; creating the criminal offense classification of reduced misdemeanor; setting forth legislative intent; setting forth definitions; allowing persons convicted of certain criminal felony offenses to petition under specified circumstances for reduction of the felony to misdemeanor status; setting forth limitations; providing for reduced offense status to be reflected on criminal records; expressly providing that reduction of felony offense means person shall not be deemed as being convicted of a felony for certain legal purposes or restrictions; clarifying that a reduced misdemeanor may not be expunged; clarifying that criminal offense reduction is in the discretion of the circuit court; establishing procedures for petition to the court; requiring payment of a filing fee when filing petition; directing a fee be paid to the State Police to offset costs associated with facilitating the purposes of this article; setting forth information to be included on the petition; providing for notification of petition to certain persons; requiring prosecuting attorney to contact identified victims; providing for notice of opposition to the petition by certain persons; establishing burden and standard of proof for petitions; providing for a hearing and setting forth procedures; providing for entry of an order by the court; authorizing court to enter an order directing certain records to reflect reduction of a felony offense to the status of reduced misdemeanor; requiring certification of compliance to the court; providing for disclosure requirements; and granting employers limited civil immunity for hiring of convicted felons and persons in reduced misdemeanor status and exceptions thereto.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §61-11B-1, §61-11B-2, §61-11B-3, §61-11B-4, and §61-11B-5, all to read as follows:
ARTICLE 11B. CRIMINAL OFFENSE REDUCTION.
§61-11B-1. Legislative intent.
It is the Legislature’s intention in enacting this article to establish a procedure whereby individuals convicted of certain criminal offenses may, pursuant to the provisions of this article, obtain a reduced offense of conviction. In enacting this article, it is also the Legislature’s intent to improve the employment possibilities of certain persons while allowing the public notice of their actual conduct and prior transgressions without further penalty or diminution of employment opportunities.
(a) As used in this article, the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otherwise:
(1) “Criminal offense reduction” means the reduction of a qualifying felony offense to a misdemeanor offense pursuant to this article.
(2) “Excluded offense” means:
(A) An offense which involves the infliction of serious physical injury;
(B) A sexual offense, including, but not limited to, a violation of the felony provisions of article eight, eight-b, eight-c or eight-d of this chapter;
(C) An offense which involves the use or exhibition of a deadly weapon or dangerous instrument;
(D) A felony violation of the provisions of section nine, article two of this chapter;
(E) A felony violation of the provisions of section twenty-eight, article two of this chapter;
(F) A felony violation of article four, chapter seventeen-b of this code; or
(G) A felony, the facts and circumstances of which the circuit court finds to be inconsistent with the purposes of this article.
(3) “Nonviolent felony” means a felony conviction in a circuit court of this state, which the circuit court finds is not: (i) An excluded offense as defined in subdivision (2) of this article; and (ii) which does not involve violence or potential violence to another person or the public.
(4) “Petitioner” means a person who has filed a petition seeking a criminal offense reduction under the provisions of this article.
(5) “Qualifying felony offense” means a nonviolent felony offense that is not excluded from relief under this article.
(6) “Reduced misdemeanor” means a legal status representing that a person previously convicted of a nonviolent qualifying felony has successfully petitioned a circuit court to have the felony conviction reduced to the status of a misdemeanor.
(7) “Requisite time period” means ten years after completion of any sentence or period of supervision or probation, whichever is later, during which time there has been no commission and conviction for a violation of law by the petitioner other than for a minor traffic offense.
§61-11B-3. Criminal offense reduction.
(a) Subject to the limitations and procedures set forth in this article, a person convicted of a nonviolent felony offense may seek a criminal offense reduction by petition to the circuit court. If granted, the petitioner’s felony conviction shall be vacated and the petitioner’s status will thereafter be designated on all records relating to the offense as a “reduced misdemeanor”. The petitioner’s criminal record shall also reflect that he or she be granted such legal status as is associated with being convicted of a misdemeanor and, except as provided by the provisions of this article, the person shall not be deemed to have been convicted of a felony for any legal purpose or restriction.
(b) Notwithstanding any provision of law to the contrary, the reduced misdemeanor provided for under this article may not be expunged as part of this petition or by subsequent legal proceeding or petition.
(c) There shall be no entitlement to a criminal offense reduction and the granting of the petition shall remain in the discretion of the circuit court.
(d) Nothing in the section may be construed to allow a person obtaining relief pursuant to this article to be eligible for reinstatement of any retirement or employment benefit which he or she lost or forfeited due to the felony conviction or convictions vacated and reduced to the status of a misdemeanor.
§61-11B-4. Petition for reduction.
(a) A person seeking a criminal offense reduction under this article shall file with the circuit court a petition, in a form and manner set forth by the West Virginia Supreme Court of Appeals.
(b) Any person filing a petition pursuant to the provisions of this article shall pay the filing fee set by the provisions of subdivision (1), subsection (a), section eleven, article one, chapter fifty-nine of this code: Provided, That in addition to the fee required by the provisions of this subsection a petitioner shall pay a fee of $100 which shall be deposited into a nonappropriated special revenue account within the State Treasurer’s office to be known as the West Virginia State Police Criminal History Account, said fee to be used to offset costs to the State Police for actions to facilitate the operation of this article.
(c) Each petition
for criminal offense reduction filed pursuant to this section shall be verified
under oath and include the following information:
(1) Petitioner’s current name and all other legal names or aliases by which the petitioner has been known at any time;
(2) All of petitioner’s addresses from the date of the offense for which a criminal offense reduction order is sought to the date of the filing of the petition;
(3) Petitioner’s date of birth and Social Security number;
(4) Petitioner’s date of arrest, the court of jurisdiction and criminal case number;
(5) The offense or offenses with which petitioner was charged and of which petitioner was convicted and the statutory citations therefor;
(6) The names of any victim or victims, or where there are no identifiable victims such shall be stated;
(7) Whether there is any current order for restitution, protection, restraining order or other no-contact order prohibiting the petitioner from contacting the victims or whether there has ever been a prior order for restitution, protection or restraining order prohibiting the petitioner from contacting the victim. If there is such a current order, petitioner shall attach a copy of that order to his or her petition;
(8) The court’s disposition of the matter and sentence imposed;
(9) The reasons a criminal offense reduction is sought, such as, but not limited to, employment or licensure purposes, and arguments in support thereof;
(10) The date upon which he or she completed any sentence or period of supervision or probation;
(11) An express
averment by the petitioner that he or she has neither committed nor been
convicted of a violation of law;
(12) The action the petitioner has taken since the time of the offense or offenses toward personal rehabilitation, including treatment, work or other personal history that demonstrates rehabilitation;
(13) Whether petitioner has ever been granted criminal offense reduction, expungement or similar relief regarding a criminal conviction by any court in this state, any other state or by any federal court; and
(14) Any supporting documents, sworn statements, affidavits or other information supporting the petition to reduce criminal offense.
(d) A copy of the petition, with any supporting documentation, shall be served by petitioner pursuant to the West Virginia Rules of Civil Procedure upon the Superintendent of the State Police; the prosecuting attorney of the county of conviction; the chief of police or other executive head of the municipal police department wherein the offense was committed; the chief law-enforcement officer of any other law-enforcement agency which participated in the arrest of the petitioner; the circuit court of conviction, if the petition is filed in another circuit; the superintendent or warden of any state correctional facility in which the petitioner was imprisoned; and any state and local government agencies the records of which would be affected by the proposed criminal offense reduction.
(e) The prosecuting attorney of the county in which the petition is filed shall serve by first class mail the petition for criminal offense reduction, accompanying documentation and any proposed criminal offense reduction order to any identified victims.
(f) Upon receipt of a petition for criminal offense reduction, the Superintendent of the State Police, the prosecuting attorney of the county of conviction, the chief of police or other executive head of the municipal police department wherein the offense was committed, the chief law-enforcement officer of any other law-enforcement agency which participated in the arrest of the petitioner, the superintendent or warden of any institution in which the petitioner was confined, the circuit court of conviction, if the petition is filed in another circuit, any state and local government agencies the records of which would be affected by the proposed criminal offense reduction and any interested individual or agency that desires to oppose the criminal offense reduction shall, within thirty days of receipt of the petition, file a notice of opposition with the court with supporting documentation and sworn statements setting forth the reasons for resisting the petition for criminal offense reduction. A copy of any notice of opposition with supporting documentation and sworn statements shall be served upon the petitioner or his or her counsel in accordance with West Virginia Rules of Civil Procedure. The petitioner may file a reply no later than fifteen days after service of any notice of opposition to the petition for criminal offense reduction.
(g) The burden of proof shall be on the petitioner to prove by clear and convincing evidence that:
(1) The conviction or convictions for which criminal offense reduction is sought are qualifying offenses and are the only convictions against petitioner;
(2) That the requisite time period has passed since the conviction or convictions or end of the completion of any sentence of incarceration or probation;
(3) That the petitioner has neither committed nor been convicted of a violation of law in the preceding ten years;
(4) That petitioner has no criminal charges pending against him or her;
(5) That the criminal offense reduction is consistent with the public welfare;
(6) That petitioner has, by his or her behavior since the conviction or convictions, evidenced that he or she has been rehabilitated and has remained law-abiding; and
(7) Any other matter deemed appropriate or necessary by the court to make a determination regarding the petition for criminal offense reduction.
(h) Within one hundred eighty days of the filing of a petition for criminal offense reduction or as soon thereafter as is practicable the circuit court shall:
(1) Summarily grant the petition;
(2) Set the matter for hearing; or
Summarily deny the petition, if the court determines that the petition is
insufficient, or based upon supporting documentation and sworn statements filed
in opposition to the petition, the court determines that the petitioner, as a
matter of law, is not entitled to reduction.
(i) If the court sets the matter for hearing, all interested parties who have filed a notice of opposition shall be notified. At the hearing, the court may inquire into the background of the petitioner and shall have access to any reports or records relating to the petitioner that are on file with any law-enforcement authority, the institution of confinement, if any, and parole authority or other agency which was in any way involved with the petitioner’s arrest, conviction, sentence and post-conviction supervision, including any record of arrest or conviction in any other state or federal court. The court may hear testimony of witnesses and evidence of any other matter the court deems proper and relevant to its determination regarding the petition. The court shall enter an order reflecting its ruling on the petition for criminal offense reduction with appropriate findings of fact and conclusions of law.
(j) If the court grants the petition for criminal offense reduction, it shall order any records in the custody of the court, and of any other agency or official, including law-enforcement records, to reflect reduction of the felony offense to the status of reduced misdemeanor. Every agency with records relating to the arrest, charge or other matters arising out of the arrest or conviction that is ordered to reflect the criminal offense reduction in its records shall certify to the court within ninety days of the entry of the criminal offense reduction order that the required reduction has been completed: Provided, That upon inquiry by a prospective employer or on an application for employment, credit or other type of application, he or she shall disclose the existence of the reduced misdemeanor and acknowledgement of the prior conviction if asked about prior convictions or crimes.
(k) Upon granting of criminal offense reduction, the person whose felony offense has been reduced under the provisions of this article shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit or other type of application that he or she has a felony conviction.
§61-11B-5. Employer protections.
(a) A cause of action may not be brought against an employer, general contractor, premises owner or other third party solely based on the employer, general contractor, premises owner or other third party employing a person or independent contractor who has been convicted of a nonviolent, nonsexual offense or a person who has had his or her conviction reduced pursuant to this article.
(b) In a negligent hiring action against an employer, general contractor, premises owner, or other third party for the acts of an employee or independent contractor that is based on a theory of liability other than that described by subsection (a) of this section, the fact that the employee or independent contractor was convicted of a nonviolent, nonsexual offense or had his or her conviction reduced pursuant to this article before the employee or independent contractor’s employment or contractual obligation with the employer, general contractor, premises owner or other third party, as applicable, may not be introduced into evidence.
(c) This section does not preclude any existing cause of action for failure of an employer or other person to provide adequate supervision of an employee or independent contractor, except that the fact that the employee or independent contractor has been convicted of a nonviolent, nonsexual criminal offense or had his or her conviction reduced pursuant to this article may be introduced into evidence in the suit only if the employer:
(1) Knew of the conviction or was grossly negligent in not knowing of the conviction or reduced offense; and
(2) The conviction or reduced offense was directly related to the nature of the employee’s or independent contractor’s work and the conduct that gave rise to the alleged injury that is the basis of the suit.
(d) This section shall not be interpreted as implying a cause of action exists for negligent hiring of a person based upon his or her criminal record in factual situations not covered by the provisions of this section.