In re I.S.A.

Decision Date18 November 2020
Docket NumberNo. 19-0939,19-0939
Citation852 S.E.2d 229
Parties IN RE: I.S.A.
CourtWest Virginia Supreme Court

Mark A. Sadd, Anna G. Casto, Lewis Glasser PLLC, Charleston, West Virginia, Attorneys for the Petitioner, I.S.A.

Patrick Morrisey, Attorney General, Scott E. Johnson, Assistant Attorney General, Karen Villanueva-Matkovich, Deputy Attorney General, Charleston, West Virginia, Attorneys for the Respondent, State of West Virginia.

Jenkins, Justice:

In this appeal, we are asked to decide whether the Circuit Court of Kanawha County erred by denying a petition to expunge a criminal record based upon its finding that the petitioner below, I.S.A.,1 who is also the petitioner on appeal, was barred from seeking expungement by operation of West Virginia Code § 61-11-25(a) (eff. 2012) due to a purported plea of guilty entered by I.S.A. in exchange for the dismissal of another charge. We are further asked to determine whether the circuit court erred in rendering its decision in this particular matter without first holding a hearing. Having considered the parties’ briefs, their oral arguments, the appendix record, and the relevant law, we find that the circuit court erred in ruling that I.S.A. was barred from seeking expungement, as there is nothing in the record establishing that he entered a plea of guilty. Furthermore, we find that, due to the circuit court's misapprehension of the record before it, and the lack of evidentiary support for the circuit court's alternate conclusion that it is contrary to the public interest and public safety to grant I.S.A.’s petition for expungement, a hearing in this particular matter was warranted. Accordingly, we vacate the circuit court's order in full and remand this case for additional proceedings consistent with this opinion.


On February 25, 2017, I.S.A. was arrested by an officer of the Charleston, West Virginia, Police Department and charged with the felony offense of wanton endangerment involving a firearm in violation of West Virginia Code § 61-7-12 (eff. 1994).2 I.S.A. worked at a convenience store in the East End of Charleston. The arrest was predicated on the allegation that I.S.A. chased a shoplifter from the store and fired a 9 millimeter handgun in an attempt to get the shoplifter to stop fleeing.3 The allegations contained in the criminal complaint filed by the officer were based upon video surveillance viewed at the store and a statement given by I.S.A. after he was Mirandized. Neither the video nor the statement is included in the record. Furthermore, according to the complaint, several individuals were outside at the time of the incident, including a KRT bus driver. However, the record does not include a statement from any bystander.

Although no written agreement is included in the record, I.S.A. apparently reached some type of pretrial arrangement with the assistant prosecuting attorney ("APA") who was assigned to his case regarding the dismissal of the felony charge. On March 10, 2017, the APA filed in the Magistrate Court of Kanawha County a motion to dismiss the felony charge against I.S.A. The ground given for the motion was "per pretrial agreement."4 On the same day, the APA filed a criminal complaint charging I.S.A. with the misdemeanor offense of unlawfully discharging a firearm across a public road of this state in violation of West Virginia Code § 20-2-58 (eff. 2016).5 The magistrate court entered an order, also on March 10, 2017, that granted the APA's motion to dismiss the felony offense charged against I.S.A. The dismissal order contains the notation "[p]lead to misd" and references the case number assigned to the misdemeanor complaint filed against I.S.A. by the APA.

An additional document that also was entered on March 10, 2017, in the misdemeanor case, and that is the crux of this appeal, is a pretrial diversion order signed by the magistrate judge, the APA, I.S.A., and counsel for I.S.A. Contrary to the magistrate court order granting the APA's motion to dismiss the felony offense, which contained a notation indicating that I.S.A. entered a plea to the misdemeanor charge, there is nothing in the pretrial diversion order indicating that I.S.A. had entered, or would be required to enter, a plea. In fact, the terms of the pretrial diversion order indicate there was no plea. According to the order, "[t]he State of West Virginia along with the Defendant, agree to place the above-listed case[ ] [the misdemeanor case] on a Pre-Trial Diversion Program, in accordance with W. Va. Code § 61-11-22 [.]" The agreement specified that I.S.A. would be required, for a period of six months, to comply with various terms and conditions set out in the order, which included: (1) that he refrain from violating federal, state, or local law; (2) that he notify his counsel if he changed his place of residence or violated the agreement; and (3) that he refrain from socializing with convicted felons. He also agreed to pay $160.25 in court costs within six months of the date the order was entered. Additionally, if I.S.A. violated any of the conditions of the agreement, he could be prosecuted for the misdemeanor. Finally, the agreement provided that

[i]f, upon expiration of the specified period, it is determined that you have complied with all the rules, regulations[,] and conditions heretofore set forth, no prosecution for the violation set forth ... in this agreement of the above-listed case number[ ] will be instituted and the above-listed case number[ ] will be dismissed.

(Emphasis added). Upon completing the terms of the pretrial diversion order, I.S.A. filed, on September 13, 2017, as a self-represented litigant, a form motion to dismiss the misdemeanor charge. Shortly thereafter, on September 27, 2017, a second form motion seeking dismissal of the misdemeanor charge was filed.6 The "[r]uling" portion of the second form motion was checked "[g]ranted" and signed by the magistrate judge on the same day the motion was filed.

Subsequently, I.S.A. filed three separate petitions seeking to have the previously dismissed felony charge expunged from his record. The first two petitions for expungement, which were both denied without a hearing, are not before this Court. On August 20, 2019, I.S.A. filed, as a self-represented litigant, his third petition for expungement of his dismissed felony charge. As with the first two petitions, the third one was denied by the circuit court without a hearing. By order entered on September 13, 2019, the circuit court gave dual grounds for denying the petition. The circuit court first found that "it is clear from the record that [I.S.A.] exchanged an initial and temporary guilty plea to the misdemeanor charge ... in exchange for the dismissal of the felony charge." Accordingly, the circuit court concluded that I.S.A. was statutorily barred from seeking expungement of the felony charge pursuant to West Virginia Code § 61-11-25(a), under which a person can seek expungement for certain charges that have been dismissed when the dismissal was "not in exchange for a guilty plea to another offense." As a second ground for denying the petition, the circuit court found that "[i]t is contrary to the public interest and public safety to grant the Petition for Expungement due to the serious nature of the charged event and the potentially deadly consequences to either the shoplifter, or any innocent bystander, like the KRT bus driver who was nearby." This appeal by I.S.A. followed.7


When presented with an appeal from an order denying a petition for expungement, we apply an abuse of discretion standard. "This 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 the extent that we are called to interpret statutory provisions to resolve the issues herein raised, our consideration is plenary. "Where 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 due regard for these standards, we consider the merits of this appeal.


I.S.A. raises three assignments of error. First, he claims that the circuit court plainly erred in finding that his felony charge was dismissed in exchange for his plea of guilty to the misdemeanor charge, which, in turn, barred him from seeking expungement. Next, he argues that the circuit court's refusal to acknowledge that a pretrial diversion agreement is not a plea deal was an abuse of discretion. Finally, he argues that the circuit court abused its discretion in failing to hold a hearing in this matter. We address the first two issues together, as they both relate to the circuit court's ruling that I.S.A. is barred from seeking expungement due to a plea agreement. We will then address the circuit court's failure to conduct a hearing.

A. Existence of a Plea

The statute under which I.S.A. seeks expungement provides, in relevant part, that

[a]ny person who has been charged with a criminal offense under the laws of this state and who has been found not guilty of the offense, 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, charge[,] or other matters arising out of the arrest or charge ....

W. Va. Code § 61-11-25(a) (emphasis added). Based upon this provision, the circuit court concluded that I.S.A. was barred from seeking expungement. I.S.A. first argues that the circuit court abused its direction by finding, in its order of September 13, 2019, that he had exchanged the dismissal of the felony charge against him for a guilty plea to a misdemeanor charge,...

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