WEST virginia legislature

2017 regular session

Introduced

Senate Bill 366

By Senators Carmichael (Mr. President)
and Prezioso

(By Request of the Executive)

[Introduced February 21, 2017; Referred
to the Committee on the Judiciary]

 

A BILL to amend and reenact §61-11-26 of the Code of West Virginia, 1931, as amended, relating to the creation of the West Virginia Second Chance Act; defining terms; expanding eligibility for expungement to persons convicted of nonviolent felonies; defining “nonviolent felony”; providing exceptions to eligibility and timing of filing a petition for expungement; creating petition requirements and court procedure for evaluating preliminary and final orders of expungement for nonviolent felonies; providing limitations on preliminary orders of expungement; clarifying disclosure requirements with respect to the information sealed pursuant to an order of expungement, including exemptions; providing standard for inspection of sealed records; and making technical changes. 

Be it enacted by the Legislature of West Virginia:

That §61-11-26 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.

§61-11-26. Expungement of certain criminal convictions; procedures; effect.

(a)  Eligibility for expungement.

            (1) Misdemeanors - Any person convicted of a misdemeanor offense or offenses arising from the same transaction committed while he or she was between the ages of eighteen and twenty-six, inclusive may, pursuant to the provisions of this section, petition the circuit court in which the conviction or convictions occurred for expungement of the conviction or convictions and the records associated therewith. The clerk of the circuit court shall charge and collect in advance the same fee as is charged for instituting a civil action pursuant to subdivision (1), subsection (a), section eleven, article one, chapter fifty-nine of this code for a petition for expungement.

(2) Nonviolent Felonies – Any person convicted of a nonviolent felony offense, as defined in subsection (c) of this section, or nonviolent felony offenses arising from the same transaction, may, pursuant to this section, petition the circuit court in which the conviction or convictions occurred for preliminary order of expungement of the conviction or convictions and the records associated therewith, and subsequently the final order of expungement of the conviction or convictions and the records associated therewith. 

            (b) Expungement shall not be available for any conviction of an offense listed in subsection (i) of this section. The relief afforded by this subsection is only available to persons having no other prior or subsequent convictions other than minor traffic violations at the time the petition is filed: Provided, That at the time the petition is filed and during the time the petition is pending, petitioner may not be the subject of an arrest or any other pending criminal proceeding. No person shall be eligible for expungement pursuant to the provisions of subsection (a) of this section until one year after the conviction, completion of any sentence of incarceration or probation, whichever is later in time.

(b) Fee for filing petition for expungement – The clerk of the circuit court shall charge and collect in advance the same fee for a petition for expungement as is charged for instituting a civil action pursuant to subdivision (1), subsection (a), section eleven, article one, chapter fifty-nine of this code.

 (c) Limitations on eligibility for expungement –

(1) Certain convictions excluded – For the purposes of this section, the term “nonviolent felony” means any felony offense other than the following:

(A) A felony crime of violence against the person as defined in subsection (o), section twenty-seven, article five, chapter twenty-eight of this code;

(B) A felony offense where the victim was a minor child, as defined in subsection (p), section twenty-seven, article five, chapter twenty-eight of this code;

(C) A felony offense involving the use or exhibition of a firearm, deadly weapon or dangerous instrument;

(D) A felony offense involving possession of a controlled substance with the intent to sell or deliver to a minor child, as set forth in article four, chapter sixty-a of this code; or

(E) A prior conviction in this state or another state for a crime that requires registration as a sex offender pursuant to article twelve, chapter fifteen of this code. 

(2) Temporal requirements –

(A) No person shall be eligible for expungement pursuant to subdivision (1) of subsection (a) of this section until one year after completion of any sentence of incarceration or completion of any period of supervision, whichever is later in time.

(B) No person shall be eligible for preliminary order of expungement pursuant to subdivision (2) of subsection (a) of this section until five years after completion of any sentence of incarceration or completion of any period of supervision, whichever is later in time.

(C) No person shall be eligible for permanent expungement pursuant to subdivision (2) of subsection (a) of this section until five years after an order is entered granting the person’s petition for preliminary order of expungement.

(3) Other miscellaneous exclusions – No person shall be eligible for expungement under this section if he or she:

(A) Has any prior or subsequent convictions other than minor traffic violations at the time the petition is filed: Provided, That at the time the petition is filed and during the time the petition is pending, the petitioner may not be the subject of arrest or any other pending criminal proceeding; 

(B) Has violated the provisions of section twenty-eight, article two of this chapter;

(C) Has been convicted of driving under the influence of alcohol or controlled substances or has violated section three, article four, chapter seventeen-b of this code; or

(D) Conviction of any offense which disqualifies such person of forever holding any office of honor, trust or profit in this state. 

(c) (d) Content of petition for expungement - Each petition to expunge a conviction or convictions 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 petitioner has been known at any time;

(2) All of petitioner's addresses from the date of the offense or alleged offense in connection with which an expungement order is sought to date 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 complaint, indictment, summons or case number;

(5) The statute or statutes and offense or offenses for which petitioner was charged and of which petitioner was convicted;

(6) The names of any victim or victims, or that there were no identifiable victims;

(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 punishment imposed, if any;

(9) Why expungement is sought, such as, but not limited to, employment or licensure purposes, and why it should be granted;

(10) The steps the petitioner has taken since the time of the offenses toward personal rehabilitation, including treatment, work or other personal history that demonstrates rehabilitation;

(11) Whether petitioner has ever been granted expungement or similar relief regarding a criminal conviction by any court in this state, any other state or by any federal court; and

(12) Any supporting documents, sworn statements, affidavits or other information supporting the petition to expunge.

(d) (e) Service of petition for expungement - A copy of the petition, with any supporting documentation, shall be served by petitioner pursuant to the rules of the trial court upon the following persons or entities:

(1) The Superintendent of the State Police;

(2) The prosecuting attorney of the county of conviction;     

(3) The chief of police or other executive head of the municipal police department wherein the offense was committed;

(4) The chief law-enforcement officer of any other law-enforcement agency which participated in the arrest of the petitioner;

(5) The superintendent or warden of any institution in which the petitioner was confined;

(6) The magistrate court or municipal court which disposed of the petitioner's criminal charge; and

(7) All other state and local government agencies whose records would be affected by the proposed expungement.

The prosecutorial office that had jurisdiction over the offense or offenses for which expungement is sought shall serve by first class mail the petition for expungement, accompanying documentation and any proposed expungement order to any identified victims.

(e) (f) Filing and service of notice of opposition to petition for expungement - Upon receipt of a petition for expungement, 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 magistrate court or municipal court which disposed of the petitioner's criminal charge; all other state and local government agencies whose records would be affected by the proposed expungement persons and entities listed in subdivision (e) of this section, and any other interested individual or agency that desires to oppose the expungement 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 expungement.

(1) A copy of any notice of opposition with supporting documentation and sworn statements shall be served upon the petitioner in accordance with trial court rules.

(2) The petitioner may file a reply no later than ten days after service of any notice of opposition to the petition for expungement.

(f) (g) Burden of proof - The burden of proof shall be on the petitioner to prove by clear and convincing evidence that: (1) The conviction or convictions for which expungement is sought are the only convictions against petitioner and that the conviction or convictions are not excluded from expungement by subsection (j) (c) of this section; (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 period of supervision as set forth in subdivision (2), subsection (c) of this section; (3) petitioner has no criminal charges pending against him or her; (4) the expungement is consistent with the public welfare; (5) petitioner has, by his or her behavior since the conviction or convictions, evidenced that he or she has been rehabilitated and is law-abiding; and (6) any other matter deemed appropriate or necessary by the court to make a determination regarding the petition for expungement.

(g) (h) Court procedure for petition for expungement - Within sixty days of the filing of a petition for expungement the circuit court shall:

(1) For persons eligible pursuant to subdivision (1) of subsection (a) of this section: 

(A) Summarily grant the petition;

(2) (B) Set the matter for hearing; or

(3) (C) 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 expungement; or

(2) For persons eligible pursuant to subdivision (2) of subsection (a) of this section:

(A) Summarily and preliminarily grant the petition subject to the provisions of subsection (j) of this section;

(B) Set the matter for hearing; or

(C) 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 expungement. 

(h) (i) Hearing on petition for expungement - 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 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 expungement with appropriate findings of fact and conclusions of law.

(i) No person shall be eligible for expungement of a conviction and the records associated therewith pursuant to the provisions of subsection (a) of this section for any violation involving the infliction of serious physical injury; involving the provisions of article eight-b of this chapter where the petitioner was eighteen years old, or older, at the time the violation occurred and the victim was twelve years of age, or younger, at the time the violation occurred; involving the use or exhibition of a deadly weapon or dangerous instrument; of the provisions of subsection (b) or (c), section nine, article two of this chapter where the victim was a spouse, a person with whom the person seeking expungement had a child in common or with whom the person seeking expungement ever cohabitated prior to the offense; any violation of the provisions of section twenty-eight of said article; a conviction for driving under the influence of alcohol, controlled substances or a conviction for a violation of section three, article four, chapter seventeen-b of this code or section nineteen, article eight of this chapter.

(j) Preliminary and final orders of expungement for nonviolent felonies - If the court grants the petition for expungement pursuant to subdivision (2), subsection (a) of this section, the court’s order shall be preliminary and subject to a motion by the petitioner to make the order a final order of expungement.

(1) Preliminary order of expungement – A preliminary order of expungement shall order the sealing of all court records and other records pursuant to subsection (k) of this section related to the nonviolent felony or felonies that are the subject of the petition. The preliminary order of expungement is subject to the following limitations: 

(A) Notwithstanding subsection (m) of this section, the custodians of records subject to sealing pursuant to subsection (k) of this section may inspect the sealed records without obtaining an order of the court if inspection is made for a legitimate law-enforcement purpose; and

(B) A preliminary order of expungement shall be vacated if the petitioner is convicted of a felony or misdemeanor offense other than a minor traffic violation subsequent to the entry of the order.

(2) Motion for final order of expungement - A motion to make the preliminary order of expungement a final order of expungement may not be made until five years after the preliminary order of expungement was entered by the court.

(A) A motion filed under this subdivision shall be verified under oath and include information evidencing whether the petitioner:

(i) Has any felony or misdemeanor convictions other than a minor traffic violation since entry of the preliminary order of expungement;

(ii) Has outstanding restitution orders or civil judgments representing amounts ordered for restitution against the petitioner since the entry of the preliminary order of expungement; or

(iii) Is subject of any outstanding warrants or is currently the subject of a pending criminal proceeding.

(B) Within sixty days of the filing of a motion for a final order of expungement, the circuit court shall:

(i) Summarily grant the motion;

(ii) Set the matter for hearing; or

(iii) Summarily deny the petition if the court determines that the motion is insufficient or, based upon supporting documentation and sworn statements filed in opposition to the motion, the court determines that the petitioner, as a matter of law, is not entitled to expungement. If the court determines that the petitioner is not entitled to expungement as a matter of law, the court shall also vacate the preliminary order of expungement.

(C) The provisions of subsections (f), (g) and (h) of this section apply to a motion filed under this subsection.

(j) (k) Sealing of records - If the court grants the petition for expungement, it shall order the sealing of all records in the custody of the court and expungement of any records in the custody of any other agency or official, including law-enforcement records. Every agency with records relating to the arrest, charge or other matters arising out of the arrest or conviction that is ordered to expunge records shall certify to the court within sixty days of the entry of the expungement order that the required expungement has been completed. All orders enforcing the expungement procedure shall also be sealed. This subsection shall not apply to the Department of Justice for DNA records and samples stored in the State DNA Database and the State DNA Databank or to fingerprint records.  For the purposes of this section, "records" do not include the records of the Governor, the Legislature or the Secretary of State that pertain to a grant of pardon. Such records that pertain to a grant of pardon are not subject to an order of expungement. The amendment to this section during the fourth extraordinary session of the Legislature in the year 2009 is not for the purpose of changing existing law, but is intended to clarify the intent of the Legislature as to existing law regarding expungement.

(k) (l) Disclosure of expunged proceedings –

(1) Upon expungement, the proceedings in the matter shall be deemed are considered never to have occurred. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged 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: Provided, That any person pursing certification under the provisions of article twenty-nine, chapter thirty of this code or employment as a law-enforcement officer by a West Virginia law-enforcement agency or a state institution of higher education or the Public Service Commission of West Virginia, shall disclose any and all convictions for the purpose of certification or seeking employment, regardless of whether the convictions were expunged pursuant to this section.

(2) No person for whom an order of expungement has been entered pursuant to this section may be found guilty of perjury or otherwise giving a false statement, under any provision of this code, because of that person’s failure to recite or acknowledge the arrest, indictment, information, trial or conviction: Provided, That the person is in compliance with subdivision (1), subsection (l) of this section.

(3) Persons required by state law to obtain a criminal history record check on a prospective employee are not considered to have knowledge of any convictions expunged under this section.

(l) (m) Inspection of sealed records - Inspection of the sealed records in the court’s possession may thereafter be permitted by the court only upon a motion by the person who is the subject of the records or upon a petition filed by a prosecuting attorney that inspection and possible use of the records in question are necessary to the investigation or prosecution of a crime in this state or another jurisdiction. If the court finds that there is a legitimate reason for access and the interests of justice will be served by granting a petition to inspect the sealed record, it may be granted under the terms and conditions that the court determines.

(n) For the purposes of this section,

(1) “Court record” means an official record of a court about a proceeding that the clerk of the court of other court personnel keeps. “Court record” includes an index, a docket entry, a petition or other pleading, a memorandum, a transcription of proceedings, an electronic recording, an order and a judgment.

(2) “Records” do not include the records of the Governor, the Legislature or the Secretary of State that pertain to a grant of pardon. Such records that pertain to a grant of pardon are not subject to an order of expungement.

(3) “Seal” means to remove information from public inspection in accordance with this section.

(4) “Sealing” means:

(A) For a record kept in a courthouse, removing to a separate secure area to which persons who do not have a legitimate reason for access are denied access;

(B) For electronic information about a proceeding on the website maintained by the magistrate court, circuit court or the Supreme Court of Appeals, removing the information from the public website; and

(C) For a record maintained by any law-enforcement agency, by removing to a separate secure area to which persons who do not have a legitimate reason for access are denied access.

(o) The amendment to this section during the fourth extraordinary session of the Legislature in the year 2009 is not for the purpose of changing existing law, but is intended to clarify the intent of the Legislature as to existing law regarding expungement.

(p) The amendments made to this section during the regular session of the Legislature in 2017 may be known and cited as the “Second Chance Act.”

 

NOTE: The purpose of this bill is to expand eligibility for expungement to persons convicted of nonviolent felonies; define nonviolent felony, providing exceptions to eligibility and timing of filing a petition for expungement; create petition requirements and court procedure for evaluating preliminary and final orders of expungement for nonviolent felonies; provide limitations on preliminary orders of expungement; clarify disclosure requirements with respect to the information sealed pursuant to an order of expungement, including exemptions; and provide standard for inspection of sealed records.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.