State of West Virginia v. A.D.

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