In re: Petition of S.G. for Expungement of Record

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

IN RE: PETITION OF S.G. FOR EXPUNGEMENT OF RECORD

No. 23-ICA-498 (Cir. Ct. of Mingo Cnty. Case No. CC-30-2023-P-53) FILED

December 6, 2024

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

MEMORANDUM DECISION INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA

1

Petitioner S.G. appeals from the final order entered by the Circuit Court of Mingo

County, which denied his petition for expungement of his criminal record pursuant to West

Virginia Code § 61-11-25 (2012).2 Respondent the State of West Virginia (the “State”)

filed a response conceding error by the circuit court with respect to the issues addressed

herein.3 S.G. filed a reply. The issue on appeal is whether the circuit court abused its

discretion in denying S.G.’s petition.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2024). After considering the parties’ arguments, the record on appeal, and the

applicable law, this Court finds that there is error in the circuit court’s decision but no

substantial question of law. This case satisfies the “limited circumstances” requirement of

Rule 21(d) of the Rules of Appellate Procedure for vacating the circuit court’s ruling in a

memorandum decision. For the reasons set forth below, the circuit court’s order is vacated,

and the case is remanded for further proceedings consistent with this decision.

S.G. was formerly employed as a deputy sheriff in Mingo County. In 2001, while

employed in that capacity, he was charged with one misdemeanor count and one felony

count of embezzlement pursuant to West Virginia Code § 61-3-20 (1929). It was alleged

that S.G. had embezzled funds from the sheriff’s office. S.G. has always denied any

wrongdoing. On March 22, 2001, the State filed a motion in magistrate court seeking to

dismiss both charges without prejudice. The motion further noted that the matter would be

presented to the grand jury in April of 2001. The magistrate court entered separate orders

1

Consistent with our practice in cases with sensitive facts, we use initials where

necessary to protect the identities of those involved in the case. See W. Va. R. App. P.

40(e)(1); State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1

(1990).

2

Although recently amended, effective June 7, 2024, the former version of this

statute was in effect at the time S.G. filed his petition.

3

On appeal, S.G. is represented by Mark A. Sadd, Esq. The State is represented by

Patrick Morrisey, Esq., and Michele Duncan Bishop, Esq.

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for each charge, which dismissed the charges without prejudice and included the grand jury

presentment language. It is undisputed that to date, the matters were never presented to a

grand jury, nor were new charges filed against S.G.

After the original charges were dismissed, S.G. enlisted in the military and was

deployed overseas. After serving more than twenty years abroad with the military, S.G.

retired and returned to Mingo County. On June 14, 2023, S.G. filed a self-represented

petition for expungement under West Virginia Code § 61-11-25,4 using the corresponding

form created and promulgated by the Supreme Court of Appeals of West Virginia. His

petition sought expungement of the two previously dismissed embezzlement charges.

An initial hearing was held before the circuit court in August of 2023. At that

hearing, the circuit court noted that it appeared from the record that the misdemeanor had

been dismissed but expressed concerns as to whether the felony charge was also dismissed

or was still pending. The circuit court continued the hearing to allow the prosecuting

attorney to either confirm there were no pending charges or to file pleadings to dismiss the

charges. At that time, both the circuit court and prosecuting attorney made representations

on the record that this formality was the only impediment to the circuit court granting the

petition at the next hearing.

The next hearing was held on October 5, 2023. At that time, the prosecuting attorney

proffered that the State’s position had changed. He began by noting that the criminal

charges had been dismissed and there was no indication that the charges were refiled or

presented to a grand jury. However, he further stated that S.G. had filed a parallel civil

proceeding before the civil service commission in 2001, which resulted in a written

agreement wherein S.G. agreed to return the embezzled funds and resign his employment

in exchange for immunity from prosecution; critically, however, the prosecuting attorney

stated that he did not have personal knowledge of these events and no copy of this

agreement could be found. It was the State’s position that while it appeared that S.G.

satisfied the requirements for expungement under West Virginia § 61-11-25, the factors

under our state’s second expungement statute, West Virginia Code § 61-11-26 (2020),

which deals exclusively with the expungement of convictions, should be applied to deny

S.G. relief because it requires consideration of whether the expungement of a conviction is

consistent with the public welfare. W. Va. Code § 61-11-26(h)(4). On this issue, the State

contended that by virtue of the agreement in the civil case, S.G. avoided indictment and

conviction on the underlying charges and, thus, further relief would be inconsistent with

the public welfare.

4

This statute is reserved for the expungements of criminal records for those

individuals who were acquitted of crimes or against whom criminal charges have been

dismissed for reasons other than a plea agreement.

2

In response, S.G. reiterated that he sought expungement under West Virginia Code

§ 61-11-25, and that West Virginia Code § 61-11-26 was not applicable to his case because

he was not convicted of any crime. S.G. also denied the State’s representations about an

alleged agreement before the civil service commission involving dismissal of the criminal

charges in exchange for his resignation. Rather, S.G. explained that he never resigned as

deputy sheriff, that there were never any sheriff department funds missing, and that the

county’s finding that he resigned was the basis of his challenge before the civil service

commission.5 He stated that there was never an agreement involving the charges and his

employment, but rather, the embezzlement charges were dismissed prior to a preliminary

hearing on the criminal charges in magistrate court.

On October 11, 2023, the circuit court issued the final order now on appeal. The

circuit court denied S.G.’s petition for two reasons. First, it found that the requirements

and procedures set forth under West Virginia Code § 61-11-26 also controlled

expungement procedures filed under West Virginia Code § 61-11-25. On this basis, the

circuit court found that S.G. had failed “to provide information required by West Virginia

Code § 61-11-26(d),” and that he had not proven that statute’s factors by clear and

convincing evidence. Second, the circuit court concluded that S.G. was ineligible for an

expungement under either statute because the 2001 agreement in the civil service

commission proceeding constituted a plea agreement because it was made in exchange for

dismissal of the criminal charges. This appeal followed. We review the matter under an

abuse of discretion standard. Syl. Pt. 1, In re A.N.T., 238 W. Va. 701, 798 S.E.2d 623

(2017) (“This Court reviews a circuit court’s order granting or denying expungement of

criminal records for an abuse of discretion.”).

On appeal, S.G. argues that the circuit court abused its discretion by finding that

that the provisions of West Virginia Code § 61-11-26 controlled expungements filed under

West Virginia Code § 61-11-25, as well as that the circuit court abused its discretion when

it concluded that the State’s proffer of an agreement before the civil service commission

constituted a plea agreement and disqualified S.G. from relief.6 As previously noted, the

State concedes these errors on appeal, and upon review, we agree with the parties that the

circuit court abused its discretion on both issues.

5

According to S.G., in October of 2001, the civil service commission found that he

had rescinded his resignation prior to its effective date. However, no one could locate this

order in county’s records.

6

S.G. also argues that the circuit court abused its discretion when it failed to

disqualify itself from the case and that this Court should disqualify the circuit court from

hearing the matter on remand. We decline to address this argument and note that pursuant

to Rule 17.01 of the West Virginia Trial Court Rules, judicial disqualifications are

exclusively reserved for the Chief Justice of our Supreme Court of Appeals.

3

First, we conclude that the circuit court abused its discretion by considering West

Virginia Code § 61-11-26 when it ruled on S.G.’s petition for expungement. That statute

is limited to expungements for criminal convictions. Here, it is undisputed that S.G. was

never convicted of the embezzlement charges and that they have been dismissed since

2001. Thus, only the provisions of West Virginia § 61-11-25 applied to this case.

Moreover, it is clear from the plain language of both West Virginia Code § 61-11-25 and

West Virginia Code § 61-11-26 that there is no qualifying language which requires

consideration of both statutes when considering the merits of a petition for expungement.

Rather, it is clear that West Virginia Code § 61-11-25 is the only expungement statute

relevant to this case.

We also conclude that the circuit court abused its discretion by finding that S.G. was

not eligible for expungement because he allegedly entered into a plea agreement in the civil

service commission case in 2001. According to the record, no such agreement exists, the

State failed to produce a copy of the agreement below, it could only proffer as to what

language it believed the document contained, and S.G. disputed the existence of any

agreement. Moreover, the alleged agreement was reached in a civil proceeding whereas

plea agreements are specific to criminal proceedings. See W. Va. R. Crim. P. 11 (detailing

the process for resolving criminal charges by plea agreement). In other words, an

agreement in a civil proceeding is not a plea agreement and is not relevant for the purposes

of determining whether an individual is entitled relief under West Virginia Code § 61-11-

25. Furthermore, the record clearly illustrates that S.G.’s criminal charges were dismissed

by State’s motion and not by virtue of any plea agreement. Therefore, there was no plea

agreement upon which the circuit court could rely to deny S.G. relief.

Based on the foregoing, we vacate the October 11, 2023, final order denying S.G.’s

petition for expungement and remand the matter to circuit court for further proceedings,

consistent with this decision and the provisions of West Virginia Code § 61-11-25.

Vacated and Remanded.

ISSUED: December 6, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr

Judge Charles O. Lorensen

Judge Daniel W. Greear

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