Criminal Offense Reduction (Second Chance Employment Act)

 

In West Virginia, can you file to change a felony on your criminal record to a reduced offense?

Under a new law, called the Second Chance Employment Act, certain felonies may be changed to a “reduced misdemeanor” through a civil court process known as Criminal Offense Reduction. The intent of this law is to improve employment opportunities for people convicted of eligible offenses, who meet certain criteria.

So it gets rid of the felony on my criminal record?

In a sense, yes. You will still have a criminal offense on your record. However, it will no longer be labeled as a “felony.” It will be relabeled as a “reduced misdemeanor.”

Are all offenses eligible for reduction?

No. Only certain nonviolent felonies are eligible for reduction.

What offenses are not allowed to be reduced?

  • offenses that involve the infliction of serious physical injury;
  • sexual offenses;
  • offenses that involve the use or showing of a deadly weapon or dangerous instrument;
  • assault and battery;
  • domestic violence;
  • DUI; and
  • felonies in which the circuit court finds to be inconsistent with the purposes of the Second Chance Employment Act.

Can it reduce a felony from another state?

No. This law only applies to felony offenses and convictions from West Virginia.

Can the reduced misdemeanor ever be expunged?

No.

When can I file to have my felony reduced?

You can file 10 years after the completion of any sentence or period of supervision or probation.

Are there any other restrictions for filing?

During the 10-year waiting period, you cannot commit or be convicted of any violation of law other than minor traffic offenses.

How do you file for a reduction?

You have to file a Petition for Criminal Offense Reduction. The form and instructions for filing can be found on the West Virginia Supreme Court of Appeals website. You will also need to fill out and file a Civil Case Information Statement.

Where do I file the petition?

You must file with the Circuit Clerk in the county in which the offense took place and/or where you were convicted.

Is there a fee for filing?

Yes. There is a filing fee associated with filing the petition, as well as an extra $100 fee. If you cannot afford the fees, you can apply for a Fee Waiver- Financial Affidavit and Application. If you are eligible, you will not have to pay any of the fees.

What needs to be included with my petition?

  • your current name and other legal names/aliases by which you have been known;
  • all of your addresses from the date of the offense to the date of filing the petition;
  • your date of birth;
  • your Social Security number;
  • your date of arrest, the court of jurisdiction, and the criminal case number;
  • the offense(s) for which you were charged and the statutory citations;
  • the offense(s) for which you were convicted and the statutory citations
  • if there were any victims, and if there were, the names of those victims;
  • whether there is any current order for restitution, protection, restraining order, or other no-contact order prohibiting you from contacting the victims. If there is, it needs to be attached to your petition;
  • whether there has ever been a prior order for restitution, protection, restraining order, or other no-contact order prohibiting you from contacting the victims;
  • the court’s ruling in the matter and the sentence imposed;
  • the reasons that the reduction is sought (i.e. employment or licensure purposes) and arguments in support of your reasons;
  • the date upon which you completed any sentence or period of supervision or probation;
  • a statement that you have neither committed nor been convicted of a violation of law during the 10-year waiting period;
  • action that you have taken since the time of the offense that demonstrates personal rehabilitation;
  • whether you have been granted criminal offense reduction, expungement, or similar relief regarding a criminal conviction in this state, any other state, or by any federal court; and
  • any supporting documents, sworn statements, affidavits, or other information supporting the petition.

Do I have to serve copies of my petition to anyone?

Yes. You have to serve a copy of your petition to:

  • the Superintendent of the State Police;
  • the prosecuting attorney of the county of conviction;
  • the chief of police or other executive head of the municipal police department where the offense was committed;
  • the chief law-enforcement officer of any other law-enforcement agency which participated in your arrest;
  • the circuit court of conviction, unless the petition is being filed in that court;
  • the superintendent or warden of any state correctional facility in which you were imprisoned; and
  • any state and local government agencies whose records would be affected by the reduction.

**Be sure to include a blank copy of the Notice of Opposition when serving all parties. The form is located at the end of the petition.

What happens after I file?

  • The prosecuting attorney will send any victims a notice and your petition as well as any supporting documentation.
  • Any interested party may file a notice of opposition with the court within 30 days of receiving your petition. These notices must be accompanied by documentation explaining why they are opposing the reduction.
  • A copy of the notice, along with supporting documentation, will be served upon you or your lawyer.
  • After being served, you have 15 days to file a reply.

What do I have to prove?

You have to prove, by clear and convincing evidence, that:

  • the conviction(s) for which the reduction is sought is a qualifying offense and is the only conviction(s) against you;
  • the 10-year time period has passed;
  • that you have not committed or been convicted of a violation of law in the preceding 10 years;
  • you have no criminal charges pending against you;
  • the reduction is consistent with the public welfare;
  • you, by your behavior since the conviction(s), have been rehabilitated and have remained a law-abiding citizen; and
  • any other matter deemed necessary by the court to make a decision regarding your petition.

What actions can the court take regarding my petition?

The court can either:

  • grant the petition,
  • set the petition for hearing, or
  • deny the petition.

What happens if the petition is set for hearing?

If the matter is set for hearing, all interested parties who filed a notice of opposition will be notified.

At the hearing, the court can inquire into your background. The court will have access to any reports or records from any agency involved with your arrest, conviction, sentence, and post-conviction supervision. Any record of arrest or conviction in any other state or federal court will also be included.

The court can also hear witness testimony and other evidence it believes relevant to the decision regarding your petition.

After that is complete, the court will enter an order either granting or denying your petition.

What happens if/when the reduction is granted?

If granted, the court will order any records in the custody of the court and of any other agency to reflect reduction of the felony to a reduced misdemeanor.

Every agency must then certify within 90 days of the order that the required reduction has been completed.

What do I have to disclose on an application or to an employer if my reduction is granted?

Be careful and make sure you know exactly what is being asked on the application. If you have any questions about your specific situation, you should talk to a lawyer.

If the application or employer asks about prior felonies, you do not have to disclose that you have been convicted of a felony.

If the application or employer asks about prior convictions, you have to disclose the reduced misdemeanor.

My retirement/employment benefits were lost/forfeited due to the felony conviction. If the reduction is granted, will I get those benefits back?

No.

Will the reduction always be granted if the requirements for filing are met?

Unfortunately, no. The court has discretion, based on all of the facts and information presented, on whether the reduction is granted or not. So it’s important that you give the court all evidence or proof that support your petition. 

Why would the court deny my petition?

The court can deny your petition if it determines that:

  • the petition does not give sufficient evidence or
  • based upon supporting documentation and sworn statements filed in opposition to the petition, you are not entitled to reduction as a matter of law.

If my petition is denied, will I get my filing fee back?

No, you will not.

This is general legal information. For guidance about your situation, talk to a lawyer.