Humphrey v. W. Va. Div. of Corr.
| Decision Date | 29 May 2014 |
| Docket Number | No. 13-0765,13-0765 |
| Court | West Virginia Supreme Court |
| Parties | Jeremy Dale Humphrey, Petitioner, Petitioner v. West Virginia Division of Corrections, Intervenor, Respondent |
Petitioner Jeremy Dale Humphrey ("petitioner"), by counsel Richelle K. Garlow and Michael T. Clifford, appeals the order of the Circuit Court of Kanawha County entered on June 25, 2013. The circuit court set aside its previous order expunging four misdemeanor charges of battery and found petitioner was not eligible to have his criminal record expunged because a proceeding was pending relating to the matter for which the expungement was sought. Respondent West Virginia Division of Corrections ("DOC"), by counsel John H. Boothroyd, filed a response.
This Court has considered the parties' briefs, oral argument, and the record on appeal. Upon review, this Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.
Factual and Procedural History
On August 3, 2012, the Charleston Police Department investigated four separate incidents of pedestrians who reported they were pepper sprayed. The victims gave similar accounts; while walking along city streets, they were approached by two individuals in a blue Ford Escape and pepper sprayed. Petitioner and another individual were questioned by police. One of the victims allegedly identified petitioner as the driver of the vehicle. The police arrested petitioner and he was charged with four counts of misdemeanor battery.
At the time of the arrest, petitioner was employed as a correctional officer at the Mount Olive Correctional Center ("Mt. Olive"). After learning of the above incident, his supervisors questioned petitioner about the matter and reviewed his statement to the police. Following this investigation, petitioner was terminated from his employment. Thereafter, petitioner filed a grievance with the West Virginia Public Employees Grievance Board seeking reinstatement. This grievance remains pending.
The Kanawha County Magistrate Court dismissed the criminal charges on November 27, 2012.1 On February 9, 2013, petitioner filed a petition for expungement of his criminal records in circuit court, pursuant to West Virginia Code § 61-11-25 (2013 Supp.). Petitioner indicated there were "no current charges or proceedings pending" in the matter. Without scheduling a hearing,2 the circuit court entered an order on March 1, 2013, granting expungement of the charges. Petitioner presented this order to Mt. Olive.
On April 1, 2013, DOC filed a "Motion to Intervene and to Set Aside Order of Expungement for the Limited Purpose of the Pending Administrative Grievance Being Heard by the Public Employee Grievance Board," pursuant to Rule 24 of the West Virginia Rules of Civil Procedure. The circuit court held a hearing on this matter on May 28, 2013.3 After hearing oral arguments on the motion, the circuit court found that petitioner "has a proceeding pending relating to the matter for which the expungement was sought, which was not disclosed to the court prior to the expungement initially being ordered." The circuit court then ordered that its expungement order be set aside. Petitioner now appeals to this Court.
Standard of Review
Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). This appeal involves the interpretation of a statute. Statutory construction is an issue of law and, accordingly, we review the circuit court's statutory construction de novo. Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
Discussion
On appeal, petitioner argues that the circuit court abused its discretion in setting aside the expungement order. Petitioner raises three assignments of error: 1) he was not required to disclose an ongoing administrative employment matter because the grievance hearing was not a "proceeding" as contemplated by the statute; 2) the ruling was contrary to the purposes of expungement; and 3) DOC had no right to intervene and its action in doing so was untimely.
Pursuant to West Virginia Code § 61-11-25(a), an individual who has been charged with a crime and who has been found not guilty, "or against whom charges have been dismissed, and not in exchange for a guilty plea to another offense, may file a civil petition in the circuit court in which the charges were filed to expunge all records relating to the arrest[.]" Id., in part. As we stated in Mullen v. State Division of Motor Vehicles, 216 W.Va. 731, 733, 613 S.E.2d 98, 100 (2005), West Virginia Code § 61-11-25 authorizes discretionary expungement when certain criteria are met.
Petitioner met the initial criteria for filing his petition to expunge because the charges against him were dismissed. W.Va. Code § 61-11-25(a). Additionally, he waited more than sixty days after the order dismissing the charges was entered before he moved to expunge his records in this matter, in accord with West Virginia Code § 61-11-25(b). However, the parties disagree as to whether the circuit court granted the petition to expunge improperly, due to the fact that an administrative proceeding concerning petitioner's alleged actions was pending at the time the circuit court granted the petition.
Id., in part, (emphasis added).
DOC argues that the petition to expunge should not have been granted because the administrative proceeding was pending and, pursuant to West Virginia Code § 61-11-25(d), petitioner was not eligible for expungement. Petitioner, on the other hand, argues that the only type of pending proceeding that should prohibit the expungement of his criminal record is a criminal proceeding. Thus, petitioner asserts that the meaning of the term "proceeding" used in West Virginia Code § 61-11-25(d) should be construed as referring only to criminal proceedings, not civil or administrative ones. Accordingly, petitioner contends that the pending administrative proceeding against him was insufficient to prohibit the circuit court from considering his petition for expungement.
We reject petitioner's argument because he is inviting this Court to rewrite the statute to read "criminal proceedings."4 We decline this request. Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (citing Bullman v. D & R Lumber Co., 195 W.Va. 129, 464 S.E.2d 771 (1995); Donley v. Bracken, 192 W.Va. 383, 452 S.E.2d 699 (1994)). See also, State ex rel. Frazier v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994) ().
We therefore concur with the circuit court's finding that petitioner's records were expunged improperly in this case. The statute provides that if "there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court may grant the petition[.]" W.Va. Code § 61-11-25(d), in part. The statute does not specify that the "proceedings" to which it refers need be criminal proceedings, and using the plain meaning of the word, the term "proceedings" may refer to criminal, civil, or administrative proceedings.5 Therefore, because there was a pending...
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