In re Perito
| Decision Date | 22 April 2022 |
| Docket Number | 20-0325 |
| Citation | 874 S.E.2d 241 |
| Parties | IN RE: Petition of Mario PERITO II for Expungement of Record |
| Court | West Virginia Supreme Court |
Petitioner, Mario Perito, II ("Petitioner"), appeals the circuit court's March 5, 2020, order denying his petition for expungement. In 1992, Petitioner was convicted of two counts of malicious assault after a jury found that he struck a man with an automobile and shot the man with a firearm. Petitioner was pardoned in 1996 and filed a petition for expungement in 1997. His 1997 petition for expungement was denied. He filed a second petition for expungement in 2019. The circuit court determined that the 2019 petition for expungement was barred by res judicata.
On appeal, Petitioner asserts that the circuit court erred by ruling that his petition was barred by res judicata. After review, and for the reasons stated herein, we affirm the circuit court's order.
Petitioner was convicted of two counts of malicious assault following a jury trial in 1992. According to the State, While Petitioner was initially sentenced to a term of incarceration of two to ten years, he only served five days in the county jail, followed by less than one year on home confinement.1 Thereafter, Petitioner was placed on probation for one year.
In 1996, then-Governor Gaston Caperton unconditionally pardoned Petitioner.2 In March of 1997, Petitioner filed a petition for expungement ("1997 petition"). The circuit court held a hearing on the petition on May 12, 1997.3 The victim appeared at the hearing, was asked his position on the expungement and replied: While there was no specific statutory authority addressing expungements following a pardon when Petitioner filed his 1997 petition, counsel for Petitioner argued that the circuit court had the authority and jurisdiction to entertain and grant the petition:
As far as the jurisdiction of circuit courts, the rule[s] of civil procedure, the trial courts indicate that nothing within the rule of procedure, nor the statutory rules of pleading, pertaining to jurisdiction [of] the circuit courts in the Constitutional sense, the rules of civil procedure do not restrict the use – do not restrict the original and jurisdiction [of] the court of record in this state. They do not remove any class of cases or restricted type of statutes, which the circuit court has jurisdiction to hear and adjudicate. And I think that the fact that the statutes, the legislature has not forbidden such actions, this court does have the power to entertain it.
Regarding the substance of the petition, counsel for Petitioner noted that Petitioner had obtained a degree, accepted his punishment, and that he was seeking the expungement because he had limited employment opportunities due to his conviction. The circuit court asked Petitioner's counsel if there was any law requiring it to grant an expungement petition following a pardon. Petitioner's counsel stated, "No, there isn't." The circuit court then stated that it was denying the petition:
(Emphasis added.)
While this hearing occurred in 1997, a written order denying the petition was not entered until September 1, 1999. The 1999 order provides that the petition "relates to felony convictions which occurred after a jury trial, that the victim of the offense objected to said petition, and the [c]ourt does therefore deny the relief granted and does ADJUDGE and ORDER that the petition be denied." Petitioner did not appeal this order.
During the two-year gap between the 1997 hearing and the September 1, 1999, written order, the Legislature enacted West Virginia Code § 5-1-16a (1999).4 This statute went into effect on May 26, 1999. It provided that one who had received a full and unconditional pardon from the governor could petition for expungement of the pardoned conviction, and the circuit court, "upon verification of the act of pardon and after a hearing to determine that good cause exists, may enter an order directing that all public record of the petitioner's conviction be expunged." Id. § 5-1-16a.
On July 10, 2019, approximately twenty years after the circuit court denied his original petition, Petitioner filed a second petition for expungement ("2019 petition"). The State moved to dismiss the 2019 petition, arguing that it was barred by res judicata. Petitioner argued that res judicata did not apply because the statutory authority he relied on in the 2019 petition did not exist when he filed his 1997 petition. Petitioner also argued that the circuit court in 1997 did not have jurisdiction to consider his 1997 petition since West Virginia Code § 5-1-16a had not been enacted at that time.
During the hearing on the 2019 petition, counsel for Petitioner argued that he was seeking the expungement because "he has been restricted greatly in his ability to find a job in his field." The circuit court noted that res judicata was the threshold issue. It asked the parties to file supplemental briefs on whether res judicata applied. The circuit court stated that if it determined res judicata did not apply, it would have another hearing to determine whether there was "good cause" to grant the expungement petition.
By order entered on March 5, 2020, the circuit court found that res judicata applied because both the 1997 petition and the 2019 petition sought expungement of the malicious assault convictions and were based on the same grounds—that Petitioner had become a productive member of society and having a criminal record limited his employment opportunities. The circuit court noted that the only difference between the 1997 petition and the 2019 petition was Petitioner's reliance on West Virginia Code § 5-1-16a. It observed that this statute "does nothing more than provide a circuit court with discretion to expunge a felony following a governor's pardon in the event the court finds ‘good cause’ to do so."
The circuit court also considered and rejected Petitioner's claim that the court in the 1997 petition lacked jurisdiction. The court noted that the 1997 petition was resolved in a written order and that the 1997 petition was not dismissed based on a lack of jurisdiction. Additionally, the circuit court noted that during the hearing on the 1997 petition, Petitioner argued that the circuit court had jurisdiction to consider the petition for expungement. However, in 2019, Petitioner argued that the circuit court in 1997 lacked jurisdiction over the 1997 petition. The circuit court's order concludes, "[t]his is intellectually inconsistent." After entry of this order, Petitioner filed the instant appeal.
Petitioner appeals the circuit court's order denying his petition for expungement. "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).
Petitioner's single assignment of error is that the circuit court erred by finding that his 2019 petition was barred by res judicata. Petitioner's main argument is that res judicata does not apply because West Virginia Code § 5-1-16a had not been enacted when he filed his 1997 petition. Petitioner notes that this statute was passed more than a year after the court's oral ruling and he would not have been able to seek relief under the version initially enacted (and in effect when the court entered its written order in 1999) because it provided that "[n]o person shall be eligible for expungement pursuant to this section until twenty years after the discharge of his or her sentence upon the conviction for which he or she was pardoned." W. Va. Code § 5-1-16a(d) (1999). Conversely, the State argues that the circuit court correctly determined that the 2019 petition for expungement is barred by res judicata.
We begin our analysis with a review of our res judicata law. In syllabus four of Blake v. Charleston Area Medical Center., Inc. , 201 W. Va. 469, 498 S.E.2d 41 (1997), this Court set forth a three-part test for determining whether res judicata bars a cause of action:
Before the prosecution of a lawsuit may be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action.
The first prong of our res judicata test has two elements: 1) was there a final adjudication on the merits 2) by a court having jurisdiction. The first element is clearly met. The circuit court...
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