In re: Petition of M.W. for Expungement of Record

• Court: Intermediate Court of Appeals of West Virginia
• Decided: November 13, 2025
• Docket: 24-ica-496
• Status: Published

Opinion

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

Fall 2025 Term FILED _____________________ November 13, 2025 released at 3:00 p.m. No. 24-ICA-496 ASHLEY N. DEEM, CHIEF DEPUTY CLERK INTERMEDIATE COURT OF APPEALS _____________________ OF WEST VIRGINIA

IN RE: PETITION OF M.W. FOR EXPUNGEMENT OF RECORD _________________________________________________________

Appeal from the Circuit Court of Randolph County Honorable David H. Wilmoth, Judge Case No. CC-42-2024-P-86

AFFIRMED _________________________________________________________

Submitted: September 16, 2025 Filed: November 13, 2025

Jeremy B. Cooper, Esq. John B. McCuskey, Esq. Blackwater Law PLLC Attorney General Pittsburgh, Pennsylvania Holly M. Mestemacher, Esq. Counsel for Petitioner Assistant Attorney General Charleston, West Virginia Counsel for the Respondent State of West Virginia

Anthony D. Eates II, Esq. Deputy Attorney General Charleston, West Virginia Counsel for the Respondent West Virginia State Police

JUDGE WHITE delivered the Opinion of the Court. WHITE, JUDGE:

Petitioner M.W.1 appeals the November 11, 2024, final order entered by the

Circuit Court of Randolph County, which denied his petition for expungement of his

conviction entered in Elkins Municipal Court. Based upon our review of the record and

applicable law, we find that the circuit court did not abuse its discretion in denying

petitioner’s petition for expungement, as petitioner was not eligible for expungement

pursuant to West Virginia Code § 61-11-26(c)(5) (2020). Accordingly, we affirm the

circuit court’s November 11, 2024, order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was charged in 2006 with one count of domestic battery of his ex-

wife. On November 6, 2006, petitioner pleaded guilty and was convicted of the lesser

misdemeanor offense of battery in the Municipal Court of Elkins under Elkins City Code

§ 130.002 (B) (1981), which provides that “if any person unlawfully and intentionally

makes physical contact of an insulting or provoking nature with [another person], he or she

shall be guilty of a misdemeanor.” Petitioner was sentenced to a fine of $100. The domestic

battery charge was dismissed.

1 Consistent with our practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in the case. See W. Va. R. App. P. 40(e)(1); State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).

1 On August 4, 2024, petitioner filed a verified petition in the Circuit Court of

Randolph County seeking expungement of his misdemeanor conviction of battery under

West Virginia Code § 61-11-26. The circuit court, on August 5, 2024, directed the

Randolph County Prosecutor’s Office to investigate and file a report regarding petitioner’s

eligibility for expungement under West Virginia Code § 61-11-26.

The Randolph County Prosecutor’s Office filed its report as directed on

August 16, 2024. The report indicated that a background check, records request, and review

of the relevant statute had been performed. In the report, the Assistant Prosecuting Attorney

concluded that “[b]ecause the State is unable to make a determination regarding eligibility

due to lack of clarity in the records of the municipal court regarding the conviction, the

State does not object to the petition and does not request a hearing in this matter.”

Respondent West Virginia State Police filed a Notice of Opposition to

Petition for Expungement on August 30, 2024, citing that West Virginia Code § 61-11-26

precluded expungement of petitioner’s misdemeanor conviction. The basis of respondent’s

opposition centered on the fact that petitioner was convicted of battery involving his former

wife, with whom he cohabited, which respondent contends falls within the exclusion under

West Virginia Code § 61-11-26(c)(5) and the intent of the Legislature to prevent

expungement of criminal records involving domestic violence.

2 In his reply to respondent’s Notice of Opposition, petitioner conceded that

the language of Ordinance § 130.002 of the Elkins Code of Ordinances “is largely similar”

to West Virginia Code § 61-2-9 (2017). However, petitioner argues that if the Legislature

had intended for battery convictions from municipal court to be excluded under West

Virginia Code § 61-11-26(c)(5), it would have stated so “in plain language, in the same

manner as other crimes within the same code section.”

The circuit court denied the petition after hearing arguments from the parties

on October 22, 2024. The circuit court concluded that petitioner was convicted of an

“offense which violates…§ 61-2-9(c)” because the essential elements of battery under the

state code and the Elkins Code of Ordinances are identical. Therefore, the circuit court held

that the forum of the criminal proceeding does not dictate eligibility for expungement,

rather, eligibility is determined by the defendant’s conduct.

It is from this order that petitioner now appeals.

II. STANDARD OF REVIEW

The Supreme Court of Appeals of West Virginia (“SCAWV”) “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

3 that it is necessary for this Court to interpret a statute, the SCAWV has held that “[w]here

the issue on an appeal from the circuit court is clearly a question of law 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 these standards in mind, we

now consider petitioner’s arguments.

III. DISCUSSION

In West Virginia, there are two bases for judicial expungement of criminal

records: statutory authority and the inherent power of the courts. The SCAWV has stated:

“Expungement is principally a creature of statute; [however], this Court has recognized

that the inherent powers of the Court may permit expungement as a remedy under certain

circumstances.” Mullen v. Div. of Motor Vehicles, 216 W. Va. 731, 733 n.2, 613 S.E.2d 98,

100 n.2 (2005). Petitioner on appeal asks this Court to determine the extent of the statutory

authority of West Virginia Code § 61-11-26(c)(5). Specifically, petitioner asks if a battery

conviction under a municipal ordinance that mirrors West Virginia Code § 61-2-9(b) or §

61-2-9(c) in its elements but carries a different penalty falls within the violations excluded

from expungement. As we explain below, West Virginia Code § 61-11-26(c)(5) excludes

petitioner’s municipal battery conviction from expungement.

4 Initially, we must determine whether a circuit court in West Virginia is able

to expunge a municipal conviction pursuant to West Virginia Code § 61-11-26. Pursuant

to West Virginia Code § 61-11-26 “a person convicted of a misdemeanor offense or

offenses may, pursuant to the provisions of this section, petition the circuit court in which

the conviction or convictions occurred for expungement of the conviction or convictions

and the records associated with the conviction or convictions.” In this case, the petitioner

requested a circuit court grant an expungement of a municipal conviction. Thus, the

question is whether West Virginia Code § 61-11-26 is applicable to the case at hand.

Statutory interpretation and construction are well-established in West

Virginia. “The primary object in construing a statute is to ascertain and give effect to the

intent of the Legislature.” Syl. Pt. 2, In re: I.S.A., 244 W. Va. 162, 852 S.E.2d 229 (2020).

Further, “[a] statutory provision which is clear and unambiguous and plainly expresses the

legislative intent will not be interpreted by the courts but will be given full force and

effect.” Id. at Syl. Pt. 3 (citing Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488

(1951)).

“A statute is open to construction only where the language used requires

interpretation because of ambiguity which renders it susceptible of two or more

constructions or of such doubtful or obscure meaning that reasonable minds might be

uncertain or disagree as to its meaning.” Sizemore v. State Farm General Ins. Co., 202 W.

5 Va. 591, 596, 505 S.E.2d 654, 659 (1998) (quoting Hereford v. Meek, 132 W. Va. 373,

386, 52 S.E.2d 740, 747 (1949)). We conclude that West Virginia Code § 61-11-26 is

susceptible to at least two constructions. One reading of the statute is that one can only

petition the circuit court in which the conviction occurred for the expungement. Another

reading of the statute is that one can petition the circuit court for an expungement of any

misdemeanor in a circuit court of the county where the misdemeanor conviction occurred.

Thus, we find that West Virginia Code § 61-11-26 is ambiguous as to whether it is

applicable to a municipal conviction. Therefore, we should interpret the statute in

accordance with the rules of statutory construction to determine its applicability to

municipal convictions.

According to the SCAWV,

[a] statute should be so read and applied as to make it accord with the spirit, purposes, and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law applicable to the subject-matter, whether constitutional, statutory, or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith.

Syl. Pt. 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908).

6 Utilizing the above framework, we find that the statute extends to municipal

convictions in municipal courts. West Virginia Code § 61-11-26 is part of a comprehensive,

statewide framework for the expungement of criminal records. The procedural structure of

that statute expressly includes municipalities, most notably through its provisions requiring

notice to local officials when a municipal conviction is involved.

West Virginia Code § 61-11-26(e) mandates service of a petition for

expungement to the Superintendent of the State Police; the prosecuting attorney of the

county or counties of conviction; the chief of the law-enforcement agency which arrested

the petitioner; the superintendent, warden, or the Commissioner of Corrections of any

institution in which the petitioner was confined or imprisoned pursuant to the conviction;

and the circuit court, magistrate court, or municipal court which disposed of the petitioner’s

criminal charge. By directing that municipalities receive notice, the Legislature

contemplated municipal participation in the expungement process. These procedural

requirements reflect a legislative design under which municipal convictions are governed

by the same substantive eligibility criteria and exclusions applicable to state-law offenses.2

Accordingly, pursuant to the rules of statutory construction, West Virginia Code § 61-11-

26 allows a circuit court to expunge a misdemeanor municipal court conviction.

2 This Court acknowledges that municipalities possess the authority to adopt and enforce their own ordinances, records, and enforcement procedures. Nothing in this opinion should be construed as infringing upon the authority granted to municipalities.

7 In the present case, petitioner contends that the statute in question was

intended by the Legislature to apply solely to violations of state code. Notwithstanding that

the ordinance mirrors identically the statutory language regarding the elements of battery,

petitioner emphasizes the different penalties in the statute compared to the ordinance, and

that such divergence underscores the legislative intent to limit the statute’s application to

state statutes. Accordingly, petitioner asserts that if the Legislature had intended for the

provision to extend to municipalities, it would have expressly articulated that intent within

the statutory text.

Respondent conversely argues that the identical language between the

municipal ordinance and the state statute supports a broader interpretation of West Virginia

Code § 61-11-26(c)(5). We agree. This Court finds that the legislative intent as enumerated

in West Virginia Code § 61-11-26 is not confined solely to application to state statutes.

West Virginia Code § 61-11-26(c)(5) limits a circuit court’s discretion to

expunge records. Certain convictions of

“[a]ny offense which violates § 61-2-9(b) or §61-2-9(c) of this code in which the victim was a spouse, a person with whom the person seeking expungement had a child in common, or with whom the person seeking expungement ever cohabited prior to the offense or a violation of § 61-2-28…” are not eligible for expungement. To determine whether the limits set forth under §61-11-

26(c)(5) apply to petitioner’s municipal conviction, one must compare the state battery

8 statute and the municipal battery ordinance. West Virginia Code § 61-2-9 sets forth the

elements for battery under subsection (c) as

“[a]ny person who unlawfully and intentionally makes physical contact of an insulting or provoking nature to the person of another or unlawfully and intentionally causes physical harm to another person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than twelve months or fined not more than $500, or both fined and confined.”

Ordinance § 130.002 ASSAULT; BATTERY of the Elkins Municipal Code recites the

very same elements for the offense of battery, stating under (B) that “[if] a person

unlawfully and intentionally makes physical contact of an insulting or provoking nature

with the person of another or unlawfully and intentionally causes physical harm to another

person, he or she shall be guilty of a misdemeanor.” The Elkins ordinance also incorporates

as a statutory reference West Virginia Code § 61-2-9.

Although petitioner was convicted under a city ordinance, the ordinance’s

elements mirror those of the state statute and address the identical criminal conduct of

battery.3 Furthermore, it is undisputed that the victim of the battery was a former spouse

3 Under Chapter 8 of the West Virginia Code, municipalities possess broad police powers “to provide by ordinance for the government, protection, order, conduct, safety, health and well-being of persons and property within the corporate limits … so long as the same is not inconsistent or in conflict with the Constitution and laws of this State.” See W. Va. Code § 8-12-5 (2023). Pursuant to these powers, municipalities may establish courts and prescribe penalties for ordinance violations, provided those penalties do not exceed statutory limits. This framework authorizes cities to enact ordinances mirroring state criminal statutes when doing so promotes public safety and does not conflict with state

9 and cohabitant. Petitioner’s battery conviction falls precisely in the category encompassed

by the state exclusion.

A municipal ordinance, such as Ordinance § 130.002 of the Elkins Municipal

Code, that is derivative of and substantively based upon a state criminal statute is a valid

exercise of municipal police power under Chapter 8 of the West Virginia Code. Municipal

ordinances frequently mirror state criminal statutes. Where a municipal ordinance prohibits

conduct identical to that described in a state statute expressly excluded from expungement,

the exclusion applies notwithstanding the fact that it is a municipal offense as opposed to

a state offense.

Furthermore, permitting expungement of a municipal offense equivalent to

West Virginia Code §§ 61-2-9 or 61-2-28 would result in unequal treatment for identical

conduct, contrary to the Legislature’s intent to establish a uniform prohibition on

expungement of violent offenses such as battery committed upon a current or previous

domestic partner. The designation of an offense as “municipal” does not alter its

substantive character.

law. Accordingly, the City of Elkins acted within its statutory authority in adopting an ordinance prohibiting domestic-battery-type conduct. Such ordinances represent a valid exercise of municipal police power.

10 The language of West Virginia Code § 61-11-26(c)(5) is clear and plainly

expresses the legislative intent, and under West Virginia’s laws of statutory construction,

should not be interpreted by the courts but simply applied. Petitioner’s interpretation of

West Virginia Code § 61-11-26 undermines the purpose intended by the Legislature. Under

the plain and ordinary meaning of the statute, petitioner’s municipal battery conviction is

not eligible for expungement under West Virginia Code § 61-11-26(c)(5).

IV. CONCLUSION

Based on the foregoing, we find that the circuit court did not abuse its

discretion in denying petitioner’s petition for expungement, and the November 11, 2024,

order of the Circuit Court of Randolph County is affirmed.

Affirmed.