IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

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No. 19-0939

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IN RE: I.S.A.

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Appeal from the Circuit Court of Kanawha County

The Honorable Tod J. Kaufman, Judge

Civil Action No. 19-P-331

VACATED AND REMANDED

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Submitted: October 14, 2020

Filed: November 18, 2020

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

JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.

CHIEF JUSTICE ARMSTEAD dissents and reserves the right to file a dissenting 

opinion.

FILED

November 18, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “This Court reviews a circuit court’s order granting or denying 

expungement of criminal records for an abuse of discretion.” Syllabus point 1, In re A.N.T., 

238 W. Va. 701, 798 S.E.2d 623 (2017).

2. “The primary object in construing a statute is to ascertain and give 

effect to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen’s 

Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).

3. “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.” Syllabus point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 

(1951). 

4. “A statute that is ambiguous must be construed before it can be 

applied.” Syllabus point 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).

5. The mere existence of a pretrial diversion agreement between (1) a 

prosecuting attorney of any county of this state or a person acting as a special prosecutor 

and (2) a person under investigation or charged with an offense against the State of West 

Virginia, entered into in accordance with West Virginia Code § 61-11-22 (eff. 2010), is not 
ii

evidence that a plea of guilty or nolo contendere has been entered by the person who was 

under investigation or charged with an offense. The agreement is evidence of the entry of 

such a plea only where it includes a provision requiring a plea of guilty or nolo contendere.
1

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.

1 In accordance with West Virginia Rule of Appellate Procedure 40(e)(1), 

which requires the use of “[i]nitials or a descriptive term . . . instead of a full name 

in . . . cases relating to expungements,” we refer to the petitioner by his initials.
2

I.

FACTUAL AND PROCEDURAL HISTORY

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, 

2 Pursuant to West Virginia Code § 61-7-12 (eff. 1994),

[a]ny person who wantonly performs any act with a 

firearm which creates a substantial risk of death or serious 

bodily injury to another shall be guilty of a felony, and, upon 

conviction thereof, shall be confined in the penitentiary for a 

definite term of years of not less than one year nor more than 

five years, or, in the discretion of the court, confined in the 

county jail for not more than one year, or fined not less than 

two hundred fifty dollars nor more than two thousand five 

hundred dollars, or both.

3 The arresting officer averred in the criminal complaint that it was unclear 

whether I.S.A. fired his weapon into the air, as he claimed, or fired it in the direction of the 

shoplifter.
3

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.

4

 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.” 

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 

4 The absence of a written agreement, or the failure to include in the record 

any written agreement, that may have been executed between I.S.A. and the APA

pertaining to the dismissal of the felony charge could very well have contributed to the 

confusion in this case as to the nature of that agreement and I.S.A.’s obligations thereunder. 

While the pretrial diversion order, discussed infra, was entered on the same day and is 

included in the record, it does not appear to be the agreement referenced in the motion to 

dismiss insofar as it contains no provision relating to the dismissal of the felony charge or 

any other charge.

5 Under the relevant portion of West Virginia Code § 20-2-58 (eff. 2016):

(a) In addition to any other prohibitions which may exist 

by law, it shall be unlawful for any person to shoot or discharge 

any firearms:

(1) Across or in any public road in this state, at any time;

. . . .
4

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 

(b) Any person violating this section is guilty of a 

misdemeanor and, upon conviction thereof, shall be fined not 

less than $50 nor more than $500 or confined in jail for not 

more than one hundred days, or both fined and confined.
5

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 

6 On appeal, I.S.A. describes this motion as a joint motion to dismiss by the 

Kanawha County Prosecuting Attorney’s Office, through its APA, and I.S.A., through his 

counsel. However, the motion contains only one illegible signature and a box is checked 

indicating that only the State was making the motion.
6

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 misdemeanor 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

7 After the notice of appeal in this case was filed, but before I.S.A. filed his 

appellate brief, this Court received a document titled “Response of Judge Tod J. Kaufman, 

Judge of the Circuit Court of Kanawha County.” As the State has noted in its response

brief, a response from the circuit court judge who decides a case that is before this Court 

on appeal is not contemplated by the Rules of Appellate Procedure. Furthermore, such a 

filing is not proper insofar as it has long been recognized that “a paramount principle of 

jurisprudence [is] that a court speaks only through its orders.” Legg v. Felinton, 219 W. Va. 

478, 483, 637 S.E.2d 576, 581 (2006). See also State ex rel. Erlewine v. Thompson, 156 

W. Va. 714, 718, 207 S.E.2d 105, 107 (1973) (“A court of record speaks only through its 

orders.”); Worley v. Easley, 123 W. Va. 1, 6, 13 S.E.2d 158, 160 (1941) (“It requires no 

citation of authority to say that a court speaks only through its orders.”). Indeed, “[i]n our 

adversarial system of jurisprudence, the judge is not a party, he is the referee.” State ex 

rel. Skinner v. Dostert, 166 W. Va. 743, 757-58, 278 S.E.2d 624, 634 (1981). Accordingly, 

the filing by the circuit court judge was not considered by this Court in deciding this case, 

and we discourage any such filings in the future.
7

II.

STANDARD OF REVIEW

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.

III.

DISCUSSION

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 
8

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, and by refusing to acknowledge that a pretrial diversion agreement is not a plea 

deal. Additionally, I.S.A. contends that these are not only errors of material fact, but they 

also leave permanent inaccuracies in his public record. The State does not address this 

issue.

8

8 Instead, the State argues that, because the circuit court gave alternate 

grounds for denying expungement, and I.S.A. has appealed only one of those grounds, this 

case should be dismissed. We address this issue in our discussion of whether the circuit 

court erred in failing to conduct a hearing. In addition, citing cases from other jurisdictions, 

the State alternatively contends that we should dismiss this appeal as barred by res judicata, 
9

We agree that the circuit court erred and abused its discretion in this case. 

First, we find nothing in the relevant diversion statute, West Virginia Code § 61-11-22 (eff. 

2010), that mandates a guilty plea. When this Court examines a statutory provision, we 

are mindful that “[t]he primary object in construing a statute is to ascertain and give effect 

to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 

W. Va. 108, 219 S.E.2d 361 (1975). Thus, “[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.” Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 

65 S.E.2d 488 (1951). Nonetheless, “[a] statute that is ambiguous must be construed before 

it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).

According to West Virginia Code § 61-11-22(a),

[a] prosecuting attorney of any county of this state or a 

person acting as a special prosecutor may enter into a pretrial 

diversion agreement with a person under investigation or 

charged with an offense against the state of West Virginia, 

when he or she considers it to be in the interests of justice.

While this statute allows for a plea to be part of a pretrial diversion agreement, it does not 

require that the agreement include a plea:

A person who has entered into an agreement for pretrial 

diversion with a prosecuting attorney and who has successfully 

complied with the terms of the agreement is not subject to 

even though res judicata was not raised below. It does not appear that this Court has ever 

applied res judicata in the first instance on appeal, and we decline to do so in this case. See, 

Syl. pt. 2, Sands v. Sec. Tr. Co., 143 W. Va. 522, 102 S.E.2d 733 (1958) (“This Court will 

not pass on a nonjurisdictional question which has not been decided by the trial court in 

the first instance.”).
10

prosecution for the offense or offenses described in the 

agreement or for the underlying conduct or transaction 

constituting the offense or offenses described in the agreement, 

unless the agreement includes a provision that upon 

compliance the person agrees to plead guilty or nolo 

contendere to a specific related offense, with or without a 

specific sentencing recommendation by the prosecuting 

attorney.

W. Va. Code § 61-11-22(c) (emphasis added). This language contains no ambiguity, and 

there is nothing therein requiring a person who has entered into a pretrial diversion 

agreement to plead guilty or nolo contendere to the offense that is the subject of the 

agreement, or to any related offense. In fact, this Court has previously recognized that, 

unlike a plea of guilty, a pretrial diversion agreement, in general, is not a conviction:

As one legal treatise noted, pretrial diversion agreements, also 

known as deferred adjudication agreements, are not 

convictions:

Deferred adjudication is not a conviction 

or a finding or verdict of guilt, but is a type of 

community supervision. A deferred judgment is 

akin to a sentence of probation . . . . In granting 

deferred adjudication the court defers further 

proceedings and places the defendant on 

community supervision without entering an 

adjudication of guilt. The purpose of statutory 

authority to withhold judgment and ultimately to 

dismiss a charge is to provide an opportunity for 

rehabilitation and to spare the defendant, 

particularly a first offender, the burden of a 

criminal record.

22A C.J.S. Criminal Law § 558 (2015) (internal footnotes 

omitted).

State v. Williams, 236 W. Va. 130, 136-37, 778 S.E.2d 579, 585-86 (2015). See also

Tomashek v. Raleigh Cty. Emergency Operating Ctr., 344 F. Supp. 3d 869, 874-75 (S.D.
11

W. Va. 2018) (commenting that “a pretrial diversion agreement under West Virginia law 

is a means of avoiding a judgment of criminal guilt—the opposite of a conviction in a 

criminal action.”); Parrish v. Auto Detailing by Me, LLC, No. 5:12-cv-03759, 2014 WL 

1153735, at *3 n.7 (S.D. W. Va. Mar. 20, 2014) (“[P]retrial diversion does not involve an 

adjudication of guilt; charges are dismissed after a period of time if a defendant 

successfully completes a period of supervision.”). Accordingly, we now hold that, the 

mere existence of a pretrial diversion agreement between (1) a prosecuting attorney of any 

county of this state or a person acting as a special prosecutor and (2) a person under 

investigation or charged with an offense against the State of West Virginia, entered into in 

accordance with West Virginia Code § 61-11-22, is not evidence that a plea of guilty or 

nolo contendere has been entered by the person who was under investigation or charged 

with an offense. The agreement is evidence of the entry of such a plea only where it 

includes a provision requiring a plea of guilty or nolo contendere.

I.S.A.’s pretrial diversion order contained no requirement that he enter a plea 

of guilty. In fact, the terms of the pretrial diversion order reflect that no plea was entered. 

One term provided that, should I.S.A. “violate the condition [sic] of this agreement during 

the specified time period, the Kanawha County Prosecuting Attorney may void this 

agreement and proceed to prosecute you in the [the misdemeanor case].” (Emphasis 

added). Under another term, “[n]either this agreement nor any other document filed with 

the Kanawha County Prosecutor’s Office, as a result of this agreement, will be used against 

you, except for impeachment purposes, in connection with any prosecution for [the 
12

misdemeanor case].” (Emphasis added). Finally, according to I.S.A.’s pretrial diversion 

order,

[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 herein in this agreement [sic] of the [misdemeanor 

case] will be instituted and [the misdemeanor case] will be 

dismissed.

These terms simply make no sense if I.S.A. had entered a plea of guilty. Therefore, the 

circuit court’s finding that I.S.A. pled guilty to the misdemeanor in exchange for the 

dismissal of the felony charge is plainly wrong absent other evidence in the record 

demonstrating the existence of such a plea. 

We have closely examined the joint appendix record submitted in this case 

and have found no clear evidence that I.S.A. entered a guilty plea to the misdemeanor 

charge that was the subject of the pretrial diversion agreement. For example, before a 

magistrate judge may accept a plea of guilty or no contest from a defendant, the judge must 

receive a form signed by the defendant containing certain information.9

 No such form is 

9 According to Rule 10(d) of the Rules of Criminal Procedure for the 

Magistrate Courts of West Virginia, “[b]efore accepting a plea of guilty or no contest, the 

magistrate shall receive from the defendant, on a form provided by the magistrate, a 

statement signed by the defendant acknowledging that the magistrate has addressed the 

matters set forth in sections (b) and (c) of this rule.” (Emphasis added). Under subsections 

(b) and (c) of this rule:

(b) Advice to Defendant. — Before accepting a plea of 

guilty or no contest, the magistrate must address the defendant 

personally in open court and inform the defendant of, and 

determine that the defendant understands, the following:
13

(1) The nature of the charge to which the plea is offered, 

the mandatory minimum penalty provided by law, if any, and 

the maximum possible penalty provided by law; and

(2) If the defendant is not represented by an attorney, 

that the defendant has the right to be represented by an attorney 

at every stage of the proceeding and, if necessary, one will be 

appointed to represent the defendant; and

(3) That the defendant has the right to plead not guilty 

or to persist in that plea if it has already been made, and that 

the defendant has the right to be tried by a jury and at that trial 

the right to the assistance of counsel, the right to confront and 

cross-examine adverse witnesses, the right against compelled 

self-incrimination, and the right to call witnesses; and

(4) That if a plea of guilty or no contest is accepted by 

the magistrate there will not be a further trial of any kind, so 

that by pleading guilty or no contest the defendant waives the 

right to a trial; and

(5) That upon a plea of guilty or no contest, the 

magistrate may question the defendant under oath, on the 

record, about the offense to which he or she has pleaded, and 

that the defendant's answers may later be used against him or 

her in a prosecution for false swearing.

(c) Ensuring That the Plea Is Voluntary. — The 

magistrate shall not accept a plea of guilty or no contest 

without first, by addressing the defendant personally in open 

court, determining that the plea is voluntary and not the result 

of force or threats or of promises apart from a plea agreement. 

The magistrate shall also inquire as to whether the defendant's 

willingness to plead guilty or no contest results from prior 

discussions between the attorney for the state and the defendant 

or the defendant's attorney.

W. Va. R. Crim. P. Mag. Cts. 10(b) & (c). Moreover, I.S.A. could not have withdrawn a 

guilty plea entered in the magistrate court insofar as “[a] magistrate may neither entertain 

nor grant a motion to withdraw a plea of guilty or no contest.” W. Va. R. Crim. P. Mag.

Cts. 10(e).
14

in the record in this case. We observe that the magistrate court’s criminal judgment order 

that dismissed the felony charge against I.S.A. does contain the notation “[p]lead to misd” 

along with the case number for the misdemeanor charge against I.S.A. However, without 

any other evidence of record that such a plea was entered, we must assume this notation 

was in error.

This Court has recognized that “[a] trial court abuses its discretion if its ruling 

is based on an erroneous assessment of the evidence or the law.” Bartles v. Hinkle, 196 

W. Va. 381, 389, 472 S.E.2d 827, 835 (1996). See also Gentry v. Mangum, 195 W. Va.

512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995) (“In general, an abuse of discretion occurs 

when a material factor deserving significant weight is ignored, when an improper factor is 

relied upon, or when all proper and no improper factors are assessed but the circuit court 

makes a serious mistake in weighing them.”). Because neither the pretrial diversion 

agreement nor the joint appendix record in this case reflect that I.S.A. entered a plea of 

guilty in relation to the misdemeanor charge, we find that the circuit court plainly erred 

and abused its discretion by finding that such a plea existed and barred I.S.A. from seeking 

expungement under West Virginia Code § 61-11-25(a). We next address whether the 

circuit court erred in failing to conduct a hearing to consider I.S.A.’s petition to expunge 

the dismissed felony charge from his public record.
15

B. Hearing

I.S.A.’s final assignment of error is that the circuit court abused its discretion 

by refusing to conduct a hearing before denying the petition for expungement. I.S.A. 

contends that, given the circuit court’s erroneous factual findings, he was never afforded 

the chance to create a proper record. We agree that I.S.A. is entitled to a hearing in this 

case, but for a different reason.

In addition to finding I.S.A. was barred from seeking expungement based 

upon its erroneous finding that a guilty plea had been entered, the circuit court additionally 

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.” The State argues that, because I.S.A. did not appeal this alternate 

ground, this case should be dismissed. However, we disagree insofar as there is inadequate 

evidentiary support for this conclusion in the current record. When the circuit court entered 

this ruling, it was under the misapprehension that I.S.A. had entered a plea of guilty and 

thereby had admitted his guilt. Because, as we establish above, this ruling was erroneous, 

there are no established facts on the record to support a finding that I.S.A. committed the 

acts as alleged and that granting his request for expungement would, therefore, be contrary 

to the public interest and public safety. Due to the absence of evidentiary support for the 

circuit court’s alternate ground for denying expungement, we find this ruling, too, “is based 

on an erroneous assessment of the evidence,” Bartles, 196 W. Va. at 389, 472 S.E.2d at 
16

835, and, therefore, was an abuse of the circuit court’s discretion. Due to the lack of 

evidentiary support for the circuit court’s ruling, we find that, under the particular 

circumstances presented in this case, a hearing is warranted.10

IV.

CONCLUSION

Based upon our conclusions that the circuit court abused its discretion in 

finding that I.S.A. entered a plea of guilty and was, therefore, barred from seeking 

expungement; in finding, without evidentiary support, that granting I.S.A.’s request for 

expungement is contrary to the public interest and public safety; and in failing to hold a 

hearing under the particular circumstances presented by this case, we vacate the circuit 

court’s order of September 13, 2019, in its entirety and remand this case for additional 

proceedings consistent with this opinion.

Vacated and Remanded.

10 Our ruling is based upon the particular facts of this case, including the 

erroneous and factually unsupported findings of the circuit court. This case should not be 

interpreted as requiring a hearing with respect to all petitions seeking expungement.