Restoration of Rights, Pardon, Expungement & Sealing
Last updated: May 5, 2017
I. Loss and Restoration of Civil Rights/Firearms Privileges
A. Civil rights
Persons convicted of “treason, felony, or bribery in an election” cannot vote “while such disability continues.” W. Va. Const. art. IV, § 1. A conviction for these crimes also results in forfeiture of the right to serve on a jury and hold office. W. Va. Code § 6-5-5, 52-1-8(b)(5) and (6). The rights to vote and hold office are restored automatically upon completion of sentence, including parole (unless for bribery of a state officer). See Osborne v. Kanawha County Court, 68 W. Va. 189, 69 S.E. 470 (W. Va. 1910); see also 55 Op. W. Va. Att’y Gen. 3 (1972); 51 Op. Att’y Gen. 182 (1965). However, the federal courts have held that the right to sit on a jury is not restored automatically upon completion of sentence. See U.S. v. Morrell, 61 F.3d 279 (4th Cir. 1995), discussed infra. Disqualification from office is permanent only for those convicted of crimes involving bribery. W.Va. Const. art VI, § 45; W. Va. Code § 61-5-4, -5; Webb v. County Court, 113 W. Va. 474 (1933).1 Persons convicted of a state (though not federal) felony are permanently barred from serving in the legislature. See W. Va. Const. art. VI, § 14.
B. Firearms dispossession
Persons convicted in any court of a crime “punishable by imprisonment for a term exceeding one year,” or of a misdemeanor crime of domestic violence, are guilty of a misdemeanor if they possess a firearm. See W. Va. Code § 61-7-7(a)(1) and (8). Possession of a firearm is a felony in the case of a person convicted of a felony crime of violence against the person of another, a felony sexual offense, or a felony drug offense (except marijuana). § 61-7-7(b).
Under § 61-7-7(c) Persons prohibited from possessing a firearm under § 61-7-7(a) may petition the circuit court of the county in which they reside to regain the ability to possess a firearm “if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm,” and if possessing a firearm does not violate federal law. § 61-7-7(c). However, because felony offenders do not regain the right to sit on a jury, they remain subject to federal disqualification and are thus ineligible for the judicial restoration procedure. See U.S. v. Morrell, supra.2 In addition, judicial restoration is not available to those dispossessed under § 61-7-7(b). Similarly, persons convicted of misdemeanor domestic violence remain subject to federal firearms disabilities because, having never lost their rights, they cannot be “restored” for the purposes of 18 U.S.C. § 921(a)(33)(B)(ii) and hence are ineligible for judicial restoration. See In re Petition of Robert A. Parsons, 624 S.E.2d 790 (W. Va. 2005).
Restoration by expungement and pardon
Under a law enacted in 2013, firearms rights may be regained if a prohibiting conviction is expunged or set aside, or if the person is unconditionally pardoned for the prohibiting offense. W. Va. Code § 61-7-7(d).3
II. Discretionary Restoration Mechanisms
A. Executive pardon
Pardon authority resides exclusively in the governor, except for impeachment. W. Va. Const. art 7, § 11. The governor is required to report the particulars of every clemency grant to the legislature, with reasons for the grant. W. Va. Code § 5-1-16.
The Parole Board has authority, if requested by the governor, to investigate and consider all applications for pardon, reprieve or commutation and to make recommendations thereon to the governor. W. Va. Code § 5-1-16(l) and (m). At least ten days prior to making a recommendation for pardon, reprieve or commutation, and prior to releasing any inmate on parole, the board shall notify the sentencing judge and prosecuting attorney. § 5-1-16(m). As a matter of policy, the governor does not consider an application except upon the recommendation of the Parole Board. Application forms are available from the Governor’s Office at 304-558-2000. Only state offenders are eligible for pardon.
Pardon lifts most legal barriers, but does not preclude consideration of the pardoned offense as a predicate. Dean v. Skeen, 137 W. Va. 105 (1952). Pardon does not restore firearms rights. See Part I.
Frequency of grants
The governor receives from 50-100 applications for pardon each year. Pardons are rarely granted – only 121 in 36 years, by nine governors. Conditional pardons for prisoners (a sort of parole) are more frequent (200 in this same time period). Since taking office in November, 2010, Governor Tomblin has granted no pardons. Executive records are kept by the secretary of state: Pardons, Reprieves, Commutations, and Respites, available at http://www.sos.wv.gov/public-services/execrecords/Pages/Pardons.aspx. Source: Governor’s Office.
Office of General Counsel, Governor’s Office
Charleston, WV 25305-0770
B. Judicial sealing or expungement
1. Felony offense reduction
Effective July 2017, courts will have discretionary authority to reduce many non-violent felony offenses to “reduced misdemeanors” after a 10 year waiting period. W. Va. Code §§ 61-11B-1 to 61-11B-5 (added by SB-76 (2017)).
Eligible offenses include any felony “which does not involve violence or potential violence to another person or the public,” and which is not “an offense which involves the infliction of serious physical injury,” a sexual offense, or “an offense which involves the use or exhibition of a deadly weapon or dangerous instrument.” W. Va. Code §§ 61-11B-2(a)(2) – (3). A handful of enumerated offenses are also ineligible, including assault, domestic violence, and violation of certain motor vehicle license provisions. §§ 61-11B-2(a)(2)(B) – (F). Additionally included in the list of ineligible offenses is any “felony, the facts and circumstances of which the circuit court finds to be inconsistent with the purposes of this article.” § 61-11B-2(a)(2)(G). An individual convicted of any ineligible offense may not be granted a reduction, even for an otherwise eligible offense. § 61-11B-4(g)(1).
A 10-year waiting period applies, beginning from completion of sentence or release from probation or supervision, whichever is later. § 61-11B-2(a)(7). Eligible individuals must have “neither committed nor been convicted of a violation of law in the preceding ten years.” § 61-11B-4(g)(3). 4 Individuals with pending charges are ineligible. § 61-11B-4(g)(4).
Petitions are filed in circuit court. W. Va. Code §§ 61-11B-4(a). A $300 filing fee is required. §§ 61-11B-4(b), 59-1-11(a)(1). The petition must be served upon the prosecuting attorney of the county of conviction, the Superintendent of State Police, the arresting law enforcement agency, the circuit court of conviction (if different from the court where the petition is filed), the chief corrections officer of any facility where the individual was imprisoned, any identified victims, and “any state and local government agencies the records of which would be affected by the proposed criminal offense reduction.” § 61-11B-4(d), (e). Any of these entities and any other “interested individual or agency” may file an opposition to the petition within 30 days of service. § 61-11B-4(f).
Regardless of whether the petition is opposed, the court retains discretion to summarily grant the petition, to hold a hearing, or, if the petition is deemed insufficient or the statutory eligibility requirements are not met, to summarily deny the petition. § 61-11B-4(h).
“There shall be no entitlement to a criminal offense reduction and the granting of the petition shall remain in the discretion of the circuit court.” W. Va. Code § 61-11B-3(c). Before the court may grant a reduction, the petitioner must prove by clear and convincing evidence that the statutory eligibility requirements discussed above have been met, and, additionally,
(5) That the criminal offense reduction is consistent with the public welfare;
(6) That petitioner has, by his or her behavior since the conviction or convictions, evidenced that he or she has been rehabilitated and has remained law-abiding; and
(7) Any other matter deemed appropriate or necessary by the court to make a determination regarding the petition for criminal offense reduction.
From W. Va. Code § 61-11B-3(a):
If granted, the petitioner’s felony conviction shall be vacated and the petitioner’s status will thereafter be designated on all records relating to the offense as a “reduced misdemeanor”. The petitioner’s criminal record shall also reflect that he or she be granted such legal status as is associated with being convicted of a misdemeanor and, except as provided by the provisions of this article, the person shall not be deemed to have been convicted of a felony for any legal purpose or restriction.
However, a reduction does not render an individual “eligible for reinstatement of any retirement or employment benefit which he or she lost or forfeited due to the felony conviction.” § 61-11B-3(d). If the court orders reduction, it “shall order any records in the custody of the court, and of any other agency or official, including law-enforcement records, to reflect reduction of the felony offense to the status of reduced misdemeanor.” § 61-11B-4(j).
Per § 61-11B-4(k), and individual who is granted a reduction “shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit or other type of application that he or she has a felony conviction.” However, § 61-11B-4(j) introduces ambiguity into the scope of that right by providing that “upon inquiry by a prospective employer or on an application for employment, credit or other type of application, he or she shall disclose the existence of the reduced misdemeanor and acknowledgement of the prior conviction if asked about prior convictions or crimes.”
With come exceptions, “a cause of action may not be brought against an employer, general contractor, premises owner or other third party solely based on the [entity] employing … a person who has had his or her conviction reduced ….” § 61-11B-5(a). Additionally, a reduced conviction may not generally be introduced as evidence in a negligent hiring action. § 61-11B-5(b).
2. Youthful misdemeanant first offenders (age 18 to 26)
W. Va. Code § 61-11-26(a):
“Any person convicted of a misdemeanor offense or offenses arising from the same transaction committed while he or she was between the ages of eighteen and twenty-six may . . . petition the circuit court in which the conviction or convictions occurred for expungement of the conviction or convictions and the records associated therewith.”
The relief afforded by this subsection is only available to persons having no other prior or subsequent convictions other than minor traffic violations. § 61-11-26(b). The clerk of court is to charge a fee for filing (same as civil action). Movants are eligible one year after conviction or completion of sentence. Certain offenses involving violence, crimes against children, DUI, and domestic violence are ineligible.
In the petition, the petitioner must explain why expungement is sought (“such as, but not limited to, employment or licensure purposes”), why it should be granted, and “[t]he steps the petitioner has taken since the time of the offenses toward personal rehabilitation, including treatment, work or other personal history that demonstrates rehabilitation.” W. Va. Code § 61-11-26(c)(9) and (10). The petitioner must notify the state police and district attorney, as well as record-keeping agencies; prosecutor must notify “any identified victim.” The petitioner must show by clear and convincing evidence that the petitioner has no other cases pending, that expungement is consistent with the general welfare, and that the “petitioner has, by his or her behavior since the conviction or convictions, evidenced that he or she has been rehabilitated and is law-abiding,” along with the other ministerial requirements for relief. § 61-11-26(f). The court may summarily grant the petition, set it for hearing, or deny it if the court finds that the petitioner is not entitled to expungement as a matter of law. The court may conduct a full inquiry into the petitioner’s character.
If the petition is granted, the court “shall order the sealing of all records in the custody of the court and expungement of any records in the custody of any other agency or official, including law-enforcement records. Every agency with records relating to the arrest, charge or other matters arising out of the arrest or conviction that is ordered to expunge records shall certify to the court within sixty days of the entry of the expungement order that the required expungement has been completed. All orders enforcing the expungement procedure shall also be sealed.” W. Va. Code § 61-11-26(j).
Upon expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit or other type of application.
W. Va. Code § 61-11-26(k).
Inspection of the sealed records in the court’s possession may thereafter be permitted by the court only upon a motion by the person who is the subject of the records or upon a petition filed by a prosecuting attorney that inspection and possible use of the records in question are necessary to the investigation or prosecution of a crime in this state or another jurisdiction. If the court finds that the interests of justice will be served by granting a petition to inspect the sealed record, it may be granted.
3. Pardoned offenses
Persons granted full and unconditional pardon may apply for expungement from the circuit court in which they were convicted one year after the pardon was granted and at least five years after discharge from sentence, with certain exceptions for violent crimes. W. Va. Code § 5-1-16a(a). If a conviction is expunged, educational institutions and licensing authorities may not consider it. § 5-1-16a(b).
4. Non-conviction records
W. Va. Code § 61-11-25:
“Any person who has been charged with a criminal offense and 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: Provided, That no record in the Division of Motor Vehicles may be expunged by virtue of any order of expungement entered pursuant to section two-b [§ 17C-5-2b], article five, chapter seventeen-C of this code: Provided, further, That any person who has previously been convicted of a felony may not file a petition for expungement pursuant to this section.”
5. Juvenile records
Juvenile records are sealed automatically the later of one year after turning age 18 or one year after juvenile or personal jurisdiction is terminated. W. Va. Code § 49-5-18(a). If a proceeding is transferred to adult court, records are not automatically sealed. § 49-5-18(e). Records may be opened only by court order. § 49-5-18(c). Sealing the record extinguishes the conviction as if it never occurred. § 49-5-18(d).
III. Nondiscrimination in Licensing and Employment
West Virginia has no general law regulating consideration of conviction in employment or licensure, except that licensing authorities may not consider expunged convictions. W. Va Code § 5-1-16a(b). Expungement is available only if the conviction has been pardoned, and then not until one year after pardon, and five years after offense committed. (See above.)
West Virginia does require that a conviction be “directly related” to the practice of a few professions. See W. Va. Code § 30-3-14(c)(2) (“Being found guilty of a crime in any jurisdiction, which offense is a felony, involves moral turpitude or directly relates to the practice of medicine”); § 30-16-11(a)(3) (same, chiropractic); § 47-14-11(a)(4) (“found guilty of a crime in any jurisdiction which directly relates to the sale of pre-need funeral contracts”).
- In Webb, the West Virginia Supreme Court of Appeals interpreted an ambiguous provision to allow election to office after completion of sentence:
“Society must be protected from law violators, and their punishment must be just–commensurate with the seriousness of the offense. But the state does not punish malefactors in vengeance. She does not entertain against them throughout the years a spirit of vindictiveness, nor is the state relentless or unforgiving. It is the anxious desire of the state that those of her citizens who have transgressed her laws, suffered convictions, and paid the penalty of the law, shall profit from their unfortunate experience and thereafter make of themselves good citizens by leading lives of uprightness and usefulness. Society is interested in such result, and not in placing forever the brand of iniquity upon the forehead of one who in the frailty of humanity has departed from the narrow path. Conscientious trial judges, in imposing sentences upon convicted men, seek to impress upon them these truths. It by no means follows from the fact that the Constitution precludes ex-convicts from serving in the legislature and inhibits persons convicted of giving or receiving bribes from thereafter holding office that a felony conviction, other than for bribery, forever disqualifies the convicted person from holding any office of public trust.”
- W. Va. Stat. § 52-1-8(b) has two separate provisions relating to jury service by a convicted person. While § 52-1-8(b)(5) appears to link right to vote and the right to serve on jury (A prospective juror is disqualified if he “has lost the right to vote because of a criminal conviction”), § 52-1-8(b)(6) separately disqualifies anyone who has “been convicted of perjury, false swearing or other infamous offense.” The Morrell court, relying on the reasoning of Berger v. United States, 867 F. Supp. 424 (S.D.W.V. 1994), held that the latter provision remained effective to bar a felony offender from jury service, and did not consider the possible implications of the former. However, because convicted felons are independently ineligible to regain handgun rights under §§ 61-7-4(a)(5) and 61-7-7, they would be unable to satisfy the requirements of the “unless clause” of 18 U.S.C. § 921(a)(20) under the Supreme Court’s holding in Caron v. United States, 524 U.S. 308 (1998). There have been efforts in recent years, to date unsuccessful, to remove the federal impediment to firearm restoration in West Virginia, by restoring jury rights automatically and providing relief from the handgun ban. The 2013 amendment to W.Va. Code § 61-7-7 relating to restoration of firearms rights has not yet been tested as to the effect on these rulings, but because expungement and pardon are separately specified grounds for federal restoration in 18 USC § 921(a)(20) it appears that either form of relief would result in automatic restoration of the right to possess firearms.
- Before passage of this 2013 law, a governor’s pardon had been held not to restore firearms rights, but merely to trigger eligibility for restoration under § 61-7-7(c). Perito v. County of Brooke, 215 W.Va. 178, 597 S.E.2d 311 (W. Va. 2004).
- The waiting period is defined by § 61-11B-2(a)(7) as 10 years “during which time there has been no commission and conviction for a violation of law by the petitioner other than for a minor traffic offense.” (emphasis added). However, per § 61-11B-4(g)(3), the petitioner has the burden of proving both that the waiting period has been satisfied and that he or she has, without qualification, “neither committed nor been convicted of a violation of law in the preceding ten years.”