In re Petition of Mario Perito II for Expungement of Record

• Court: West Virginia Supreme Court
• Decided: April 22, 2022
• Docket: 20-0325
• Status: Separate

Opinion

FILED April 22, 2022 EDYTHE NASH GAISER, CLERK No. 20-0325 – In re Petition of Mario Perito II for Expungement of Record SUPREME COURT OF APPEALS OF WEST VIRGINIA

WOOTON, J., dissenting:

In this opinion, a majority of the Court concludes that an individual who

sought expungement of his criminal record before the Legislature enacted a statute

authorizing the relief requested, and whose petition was denied for want of that authority,

is forever barred from seeking expungement of his criminal record by operation of the

doctrine of res judicata. I believe the majority’s analysis is flawed in two respects: (1) it

fundamentally errs in concluding that there was final adjudication on the merits with regard

to Mr. Perito’s 1997 petition for expungement; and (2) it mistakenly concludes that the

equitable cause of action upon which Mr. Perito relied in his 1997 petition is identical to

the statutory cause of action upon which he relied in his 2019 petition. For these reasons,

I respectfully dissent.

First, the majority relies exclusively upon the circuit court’s finding in its

1999 order that the petition “relates to felony convictions which occurred after a jury trial

[and] that the victim of the offense objected to said petition” to determine there was a final

adjudication on the merits below. I cannot fathom how this conclusion was reached. The

majority does not explain how the selected quotation — an incomplete one at that —

expresses any determination whatsoever on the merits of expungement. Rather, if one were

to examine that quote in its entirety, the words singled out by the majority are nothing more

1 than a recitation of the facts of the underlying proceedings. In full, the circuit court stated

in its 1999 order:

Thereupon, upon mature consideration, the [c]ourt does find that the petition is not supported by any statutory case [sic] law, 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 [sic] and does ADJUDGE and ORDER that the petition be denied, that this matter be stricken from the active docket of this [c]ourt and the [c]ourt did note the petitioner’s exception to its adverse rulings.

The first part of that sentence clearly explains that the circuit court found it has no statutory

authority upon which to grant the petition, and the transcript of the 1997 hearing preceding

this order indicates that the circuit court refused to exercise its inherent authority to decide

Mr. Perito’s petition; accordingly, the court having conceded that it had no authority upon

which to grant or deny the petition, its alleged reasoning for thereafter denying the petition

was of no moment — it was dicta, no more and no less. It is abundantly clear, when

examining the circuit court’s ruling in context, that its denial of Mr. Perito’s 1997 petition

was predicated solely on its lack of authority to grant him relief, and not upon the merits

of his petition.

Beyond this, even assuming, arguendo, that the circuit court believed it had

the authority to rule upon the petition in 1999 but declined to exercise it, the majority fails

to explain how these two findings constitute an adjudication on the merits. The fact that

the petition “relates to felony convictions which occurred after a jury trial” is not a basis

upon which to deny a petition for expungement. We have never found that to be the case,

2 and logic dictates that we would be unlikely to do so. If every conviction resulting from a

jury’s verdict were ineligible, a host of convictions in this state would be ineligible for

expungement. This is not a basis for denying the petition; it is simply a recitation of the

facts predicating the petition. To construe that language otherwise is both logically and

legally unsound.

The same can be said of the circuit court’s finding in the 1999 order that “the

victim objected to said petition.” Obviously, the court at that time could have considered

the victim’s objection in determining whether to grant or deny the petition for

expungement. However, to do so without considering any other evidence would, in my

view, have been a flagrant abuse of discretion, given the circuit court’s failure to permit

Mr. Perito to proffer any evidence which might have established that he was otherwise

deserving of an expungement. Again, a review of the 1997 hearing transcript reveals that

the circuit court heard virtually no evidence in this matter. The victim’s objection

amounted to two sentences, and the entirety of Mr. Perito’s evidence consisted of a bare

recitation by his attorney of what was alleged in his petition. Moreover, upon hearing the

victim’s objection, the circuit court in 1997 openly stated, “I am not going to reach the

issue as to whether I have the authority to [grant the petition] or not because I am not going

to grant it[] if the victim objects.” Ignoring for the moment that the circuit court simply

refused to determine whether it could even entertain the petition for expungement, the court

made clear that no matter what evidence Mr. Perito proffered, it would still deny the

petition, simply because the victim objected. Surely a hard-and-fast rule by which the

3 victim’s objection trumps any evidence brought forward by the petitioner cannot be

deemed the exercise of sound discretion on the part of the circuit court in resolving a

petition for expungement. Yet, if we are to conclude that the circuit court issued a final

adjudication on the merits in this matter, we are implicitly sanctioning that conduct,

because that is precisely what the circuit court — by its own admission — did in 1999.

The problems do not end here. The majority goes on to discuss whether the

circuit court could have properly exercised jurisdiction over the 1997 petition, citing

precedents indicating that courts have an inherent authority to grant expungements. See In

re A.N.T., 238 W. Va. 701, 704, 798 S.E.2d 623, 626 (2017) (“There are two bases for

judicial expungement of criminal records: statutory authority and the inherent power of the

courts.”). I do not dispute that this Court has long recognized such an inherent power;

however, the majority fails to appreciate—or perhaps just ignores—how very limited that

authority is. For example, we have explicitly held that

[a] circuit court, absent extraordinary circumstances and to protect constitutional rights or some other compelling public policy imperative, does not in the absence of statutory authority have the power to order the expungement of criminal history record information regarding a valid criminal conviction maintained by the State Police Criminal Investigation Bureau pursuant to W. Va. Code, 15-2-24 [1977].

Syl. Pt. 1, State ex rel. Barrick v. Stone, 201 W. Va. 569, 499 S.E.2d 298 (1997) (emphasis

added). 1 This language clearly and explicitly limits courts’ inherent authority to grant

1 This holding is still valid insofar as persons convicted of certain crimes are not eligible to petition for an expungement of their criminal record. See W. Va. Code § 5-1- 4 expungements to cases involving the rarest of circumstances. The law review article cited

by the majority — Valena E. Beety, Judge Michael Aloi, Evan Johns, Emergence from

Civil Death: The Evolution of Expungement in West Virginia, 117 W. Va. L. Rev. Online

63 (May 19, 2015) — clearly supports this interpretation, relying on the Handbook on West

Virginia Criminal Procedure authored by eminent scholar and former West Virginia

Supreme Court Justice Franklin Cleckley. To be sure, Justice Cleckley recognized that our

courts have jurisdiction in equity to order an expungement “in an appropriate case.” 1

Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure I-186 (2d. ed. 1993)

(citing United States v. Van Wagner, 746 F. Supp. 619 (E.D. Va. 1990)). However, Justice

Cleckley acknowledged that such cases were confined to “exceptional circumstances” like

“flagrant violations of the Constitution” or malicious prosecutions. Id. (quoting United

States v. Doe, 556 F.2d 391 (6th Cir. 1977); citing Wheeler v. Goodman, 306 F. Supp. 58

(W.D.N.C. 1969)). There is no suggestion that any such exceptional circumstance was

present in this case.

To the extent that Justice Cleckley also acknowledged that courts may

consider “economic hardship” accompanying a criminal record in considering whether

expungement is appropriate, that consideration necessarily implies that the circuit court

must take evidence regarding the existence of such a hardship. Id. (citing Van Wagner,

16a(e) (2018) (excepting from expungement eligibility first-degree murder, treason, kidnapping, and certain other felonies).

5 746 F. Supp. at 619). That was not done in this case. Again, a cursory examination of the

1997 hearing transcript reveals the circuit court did nothing more than hear Mr. Perito’s

attorney briefly regurgitate the allegation in the petition that Mr. Perito was finding it

difficult to become employed, given his criminal record. Significantly, other than that brief

recitation, nothing – and in particular, no evidence – was presented to the circuit court at

that time. The court did not entertain a single specific explanation as to how Mr. Perito’s

criminal record was impacting his employment or his economic status. While the

economic impact of a criminal record may be obvious without the need to take evidence,

that does not excuse the court’s failure to do so — particularly when that failure was based

on a preconceived determination that an expungement would not be granted simply

because the victim objected.

Simply put, the circuit court entertained no evidence that would have led it

to conclude that an “exceptional circumstance” allowed it to exercise its inherent authority

to grant or deny Mr. Perito’s 1997 petition for expungement. Accordingly, the only

remaining avenue under which it could have entertained the petition was if there existed

some statutory authority to do so. As it observed in its 1999 order, the circuit court had no

6 statutory authority upon which to grant or deny the petition. In the absence of both inherent

or statutory authority, the circuit court could not rule on the 1997 petition. 2

Moreover, even assuming the circuit court exercised its inherent authority in

this matter in 1997, I firmly believe that the equitable cause of action undergirding the 1997

petition is separate and distinct from the statutory cause of action upon which the 2019

petition was based. This is so because the statutory cause of action entitles the petitioner

to something new: a “good cause” hearing. West Virginia Code § 5-1-16a (2018) provides,

in relevant part,

Any person who has received a full and unconditional pardon from the Governor, pursuant to the provisions of section eleven, article VII of the Constitution of West Virginia and section sixteen [§ 5-1-16] of this article, may petition the circuit court in the county where the conviction was had to have the record of such conviction expunged. . . .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.

(Emphasis added). Persons seeking an expungement pursuant to the court’s inherit

authority do not have a statutorily created right to a good cause hearing.

The majority acknowledges that “[t]he test to determine if the issue or cause

of action involved in the two suits is identical is to inquire whether the same evidence

2 The lack of authority explains why there was not a full hearing on the issue of Mr. Perito’s petition for expungement and why there could not have been any decision on the merits because there was nothing to adjudicate. 7 would support both actions or issues.” White v. SWCC, 164 W. Va. 284, 290, 262 S.E.2d

752, 756 (1980) (citations omitted). In Mr. Perito’s case, the majority highlights that both

of Mr. Perito’s expungement petitions contained nearly identical allegations, specifically

details of his convictions, sentence, and pardon, and an assertion that he has been leading

a law-abiding life and that the convictions “seriously affected his employment

opportunities.” This is undisputed. However, I believe the statute confers upon Mr. Perito,

and those similarly situated, an explicit right to present evidence to the circuit court in a

hearing specifically tailored to determine whether good cause exists to grant the

expungement. Before the enactment of this statute there was no such right; the hearing

held in 1997 serves as a prime example of why such a hearing is now guaranteed. Mr.

Perito was allowed to recite the facts alleged in his petition, but he was given no

opportunity to elaborate upon them or present evidence to the court establishing the details

of his “law-abiding” life, or how his convictions detrimentally impacted his economic or

employment prospects. From a purely objective standpoint, there is no way to construe the

1997 hearing as the “good cause” hearing contemplated by West Virginia Code § 5-1-16a;

therefore, to the extent that the statute entitles Mr. Perito to such a hearing, the statutory

cause of action differs significantly, and thus avoids the preclusive effect of res judicata.

In this regard, I would also point out this Court’s long-standing precedent

establishing that “‘[t]he doctrine of res judicata does not prevent a re-examination of the

same question between the same parties when, subsequent to the judgment, facts have

arisen which may alter the rights of the litigants.’ Syllabus, Huntington Brick & Tile Co. v.

8 Public Service Commission, 107 W. Va. 569, 149 S.E. 677 (1929).” Syllabus Point 2,

Blethlen v. West Virginia Dept. of Revenue/State Tax Dept., 219 W. Va. 402, 633 S.E.2d

531 (2006). Given this holding, the majority cannot reasonably contend that the passage

of West Virginia Code § 5-1-16a (1999), insofar it confers a statutory right to a good cause

hearing upon persons seeking expungements, does not “alter the rights of the litigants” in

such a way that res judicata is overcome. While the majority takes great pains to argue that

this Court has never recognized an intervening law exception to the doctrine of res judicata,

it is disingenuous to make that argument where the Legislature — possibly frustrated with

the judiciary’s reluctance to grant expungements under its so-called inherent authority —

passed a statute explicitly designed to give petitioners that relief.

In a similar vein, there are facts specific to this case which may affect the

rights of the parties insofar as they may arguably establish that Mr. Perito is deserving of

expungement. Had Mr. Perito been given the opportunity to testify or present evidence in

1997 regarding his allegedly law-abiding life or how his convictions had detrimentally

impacted his life, such evidence and testimony would have been necessarily limited to

events that took place prior to the hearing. By the time of his second petition in 2019,

twenty-two years had passed. It stands to reason that the evidence he likely would have

presented in 2019 would have greatly differed — or at least been far more substantial —

than that he could have presented in 1997. To determine that the evidence presented would

have been identical ignores the reality that more than two decades have passed between the

filing of these petitions, in which time Mr. Perito may have been able to more clearly

9 demonstrate that he led a law-abiding life and how his convictions harmed his employment

prospects. Yet, the 2019 circuit court refused to take any evidence upon finding — I

believe incorrectly — that res judicata barred the 2019 petition for expungement.

As a final point, I take this opportunity to highlight a fact the majority seems

keen to overlook. During the 1997 hearing on Mr. Perito’s first expungement petition,

after determining that it would not grant the petition the circuit court stated to Mr. Perito,

“You may, if you wish, explore whatever there is, any body of law between pardons and

expungement and bring it on again.” In this regard, the Restatement (Second) of Judgments

§ 26(1)(b) (Am. L. Inst. 1982) recognizes that there is an exception to the doctrine of res

judicata where “[t]he court in the first action expressly reserved the plaintiff’s right to

maintain the second action[.]” Id. While this Court has not yet adopted this language in

an opinion, even a cursory review of our precedents reveals that we have often looked to

the Restatements and accepted them as persuasive authority. Why, then, would we decline

to do so in the case at bar? Given the circuit court’s on-the-record statement that it would

permit Mr. Perito to bring his petition again if he discovered authority permitting the court

to entertain his expungement petition, this case presents a clear-cut opportunity to apply

this very exception to the doctrine of res judicata.

For the foregoing reasons, I believe the majority’s opinion in this matter not

only wrongly interprets the facts of this case but also resolves the legal issue in a manner

inconsistent with the law. That said, I do not opine as to whether Mr. Perito’s petition for

10 expungement should be granted, as that is a matter that would lay squarely within the

discretion of the circuit court. Rather, this opinion is meant only to illustrate that Mr. Perito

was denied the process guaranteed to him by West Virginia Code § 5-1-16a insofar as he

never received a “good cause” hearing. Therefore, I respectfully dissent.