“In Exchange For” and Expungement Eligibility under West Virginia Code § 61‑11‑25(a): A Commentary on Justice Trump’s Dissent in In re: Petition of D.K. for Expungement of Record

I. Introduction

This commentary analyzes Justice Trump’s dissenting opinion in In re: Petition of D.K. for Expungement of Record, No. 23‑438 (W. Va. Nov. 13, 2025). Although it is a dissent and therefore not controlling precedent, it presents a clear and structured textualist approach to a recurring problem in criminal practice: when a dismissed charge is considered to have been dismissed “in exchange for a guilty plea to another offense” within the meaning of West Virginia’s expungement statute, West Virginia Code § 61‑11‑25(a) (2012).

The case arises from a relatively common plea and diversion structure: a defendant faces multiple charges, pleads guilty to some, enters a diversion program on a more serious charge, and if he successfully completes diversion, that serious charge is dismissed. The legal question is whether that eventual dismissal is legally “in exchange for” the guilty plea on a separate misdemeanor, thereby making the dismissed felony ineligible for expungement.

The majority of the Supreme Court of Appeals of West Virginia concluded that the dismissal was in exchange for the guilty plea, reading the plea agreement and pretrial diversion agreement together as a single, unified transaction. On that view, the statutory bar applied and the petitioner, D.K., could not expunge the dismissed felony possession charge. Justice Trump dissented, arguing that the majority misapplied the “plain meaning” rule, improperly imported contract law concepts into the expungement statute, and misunderstood the nature of the exchange.

This commentary:

Sets out the factual and procedural background of D.K.’s case;
Summarizes Justice Trump’s dissent;
Analyzes the precedents and doctrinal building blocks cited in the dissent;
Explores the statutory interpretation and policy implications of the competing views; and
Clarifies key legal concepts such as expungement, pretrial diversion, and “condition precedent.”

II. Background and Procedural Posture

A. Charges Against D.K.

In 2013, D.K. was indicted on three criminal charges:

Felony possession with intent to deliver a controlled substance (the “possession charge”);
Misdemeanor carrying a deadly weapon (the “weapons charge”); and
Misdemeanor improper vehicle registration (the “improper registration charge”).

B. The Plea Agreement and Pretrial Diversion

The majority opinion (as described by the dissent) characterized the resolution of these charges as a “three-part resolution” between D.K. and the State:

D.K. agreed to plead guilty to the felony possession charge and the misdemeanor improper registration charge;
The State agreed to defer prosecution of the possession charge pursuant to a pretrial diversion agreement, and to dismiss that charge if D.K. complied with the diversion terms; and
The State agreed to dismiss the weapons charge.

On May 12, 2014, the circuit court held a plea hearing and approved the plea agreement. D.K. then:

Signed the plea agreement;
Entered contemporaneous guilty pleas to:
- the felony possession charge, and
- the misdemeanor improper registration charge; and
Had the weapons charge dismissed; and
Was sentenced immediately on the improper registration conviction (having waived a presentence investigation).

Crucially, the possession charge was not resolved by an immediate conviction or dismissal. Instead, it was:

Removed from the court’s active docket; and
Placed into a pretrial diversion agreement between D.K. and the State.

Under the separate pretrial diversion agreement, the State promised to:

Defer prosecution of the possession charge for two years; and
Dismiss the possession charge on May 12, 2016, if and only if D.K. complied with specified conditions during that two-year period.

Those conditions, as summarized in the dissent, required D.K. to:

Abide by all state, federal, and municipal laws;
Maintain contact with counsel and keep counsel apprised of his whereabouts;
Maintain or actively seek employment when not a student; and
Refrain from possessing or consuming any alcoholic beverage or non-prescribed controlled substance.

This structure meant that when D.K. pled guilty to the possession and improper registration charges in 2014, the ultimate fate of the felony possession charge was still uncertain. If he complied with the diversion terms for two years, the felony would be dismissed; if he failed, he could be adjudicated guilty on that felony.

C. Dismissal of the Possession Charge and Expungement Petition

D.K. successfully complied with the diversion agreement. Effective May 12, 2016, the State dismissed the felony possession charge.

Later, D.K. petitioned the circuit court for expungement of the records relating to the dismissed felony possession charge, invoking West Virginia Code § 61‑11‑25(a) (2012).

The circuit court denied relief, and the Intermediate Court of Appeals (“ICA”) affirmed. Their decisions (as reflected by the majority’s ultimate affirmance) must have accepted the premise that the possession charge had been dismissed “in exchange for a guilty plea to another offense,” thereby triggering the statutory bar to expungement.

The Supreme Court of Appeals’ majority affirmed the ICA and the circuit court. Justice Trump dissented, arguing that this legal conclusion was wrong and that D.K. should have been deemed eligible to seek expungement of the possession charge.

III. Statutory Framework: West Virginia Code § 61‑11‑25(a) (2012)

The central statute in dispute is West Virginia Code § 61‑11‑25(a) (2012), governing expungement of certain criminal records. The portion quoted by Justice Trump provides:

“[A]ny person who has been charged with a criminal offense . . . against whom charges have been dismissed, and not in exchange for a guilty plea to another offense, may petition the circuit court for expungement of records relating to that charge.”

Two features are critical:

Dismissal Requirement – The person must have been charged with an offense “against whom charges have been dismissed.” That threshold was satisfied here: D.K.’s felony possession charge was dismissed effective May 12, 2016.
Exchange-Based Bar – Expungement is unavailable if the dismissal occurred “in exchange for a guilty plea to another offense.” This is the core interpretive dispute.

Footnote 2 of the dissent notes that § 61‑11‑25(a) imposes other eligibility restrictions (such as the types of charges or persons covered), but those additional limitations were not contested in this case. The sole question was whether the statutory phrase “and not in exchange for a guilty plea to another offense” applied to D.K.’s situation.

IV. Summary of Justice Trump’s Dissent

Justice Trump’s dissent can be distilled into several interlocking propositions:

Plain Meanings Control. The language of § 61‑11‑25(a) is clear and unambiguous, so courts must apply the statute according to the ordinary meaning of its words, especially “exchange.”
“Exchange” Requires Direct Reciprocal Causation. Using dictionary definitions, the dissent emphasizes that an “exchange” implies a direct, reciprocal giving and receiving – one thing given in return for another. On that view, the dismissal of the felony possession charge was not “in return for” the guilty plea to the improper registration charge.
Dismissal Was in Exchange for Completion of Diversion, Not the Guilty Plea. D.K.’s possession charge was dismissed only after he successfully completed the two-year pretrial diversion program. At the moment he pled guilty to the improper registration charge, there was no guarantee that the felony would ever be dismissed. The causal factor for the dismissal was his compliance with diversion conditions, not his earlier guilty plea.
The Majority Improperly Conflated Agreements and Imported Contract Law. The majority, in the dissent’s view, treated the plea agreement and the pretrial diversion agreement “together” as one unified contract, applying commercial contract concepts (global “consideration”) to interpret the statute. Justice Trump argues that this is an unjustified overlay of contract theory onto a criminal expungement statute, and amounts to reading words into § 61‑11‑25(a) that the Legislature did not enact.
Proper Application Would Render D.K. Eligible to Seek Expungement. Because the dismissal was “in exchange for” his successful completion of the diversion terms as of May 12, 2016 – and not for his 2014 guilty plea to the improper registration charge – D.K. falls within the statutory category of persons who may petition for expungement.
Remedy: Reverse and Remand. Justice Trump would have reversed the ICA and the circuit court and remanded with instructions for the circuit court to “fully consider D.K.’s petition for expungement,” i.e., to proceed to the discretionary and factual merits rather than rejecting the petition on an absolute legal bar.

V. Precedents and Authorities Cited in the Dissent

Justice Trump’s dissent is overtly textualist, anchored in well-established West Virginia canons of statutory construction. The key authorities are:

A. State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951)

Syllabus Point 2 of Epperly, quoted in the dissent, states:

“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.”

This expresses the classic plain-meaning rule: where the text is clear, courts may not resort to construction, policy balancing, or judicial gloss.

Justice Trump invokes Epperly to justify treating the words “in exchange for a guilty plea to another offense” as self-contained and to resist the majority’s more elaborate reading that imports contract-law concepts into the statute.

B. State v. Cole, 160 W. Va. 804, 238 S.E.2d 849 (1977)

The dissent quotes Cole for the proposition:

“As a general rule, words in statutes are taken to have been used in their ordinary sense and acceptation.”

This reiterates that the Legislature is presumed to speak in ordinary language unless it defines terms otherwise, and the judiciary should read statutory words as laypeople would. Applied here, “exchange” is to be given its ordinary sense, not a technical one borrowed from contract law or plea-bargaining doctrine.

C. Ransom v. Guardian Rehabilitation Services, Inc., 248 W. Va. 390, 888 S.E.2d 890 (2023)

The dissent cites Ransom for the following principle:

“[W]here the language of a statute is clear, courts must apply the relevant law according to its unvarnished meaning, without any judicial embroidery.”

The phrase “judicial embroidery” is particularly important in this dissent. Justice Trump uses it to criticize the majority’s approach, which he portrays as adding extra conditions and qualifications to the statutory text that the Legislature did not include. By reading the plea agreement and pretrial diversion agreement as a single “package deal,” and applying contractual notions of global consideration, the majority, in his view, effectively inserts “and not as part of any contingent contractual consideration in a plea package” into the statute.

D. Brooke B. v. Ray, 230 W. Va. 355, 738 S.E.2d 21 (2013)

Syllabus Point 11 of Brooke B., quoted in part, states:

“It is not for this Court arbitrarily to read into a statute that which it does not say.”

This canon complements Epperly and Cole. Justice Trump uses it to underline that the expungement statute does not say “in exchange for a guilty plea to another offense or as consideration in any plea agreement involving a guilty plea to another offense.” By broadening the category of “exchanges” to include any part of a broader plea package—regardless of timing, contingencies, or the direct cause of dismissal—the majority, he contends, effectively rewrites the statute.

E. State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998)

In footnote 5, Justice Trump references Myers to make a nuanced point: while courts sometimes analogize plea agreements to contracts, that analogy is limited and typically used only to protect defendants, not to expand the State’s power or decrease defendants’ statutory rights.

He quotes Myers:

“Traditional principles of contract law are not strictly applicable to plea agreement[s] . . . [but are] generally invoked to hold the government to its obligations under a plea agreement so that defendant will not suffer prejudice as result of his or her reliance on it.”

Justice Trump thus acknowledges that contract law can inform plea-agreement analysis in contexts such as alleged breaches, but he emphasizes that even in those contexts, the analogy is imperfect and defendant-protective. He then uses this to argue that there is “simply no basis” to import contract doctrines into the interpretation of an expungement statute.

VI. Legal Reasoning in the Dissent

A. Focusing on the Term “Exchange”

Justice Trump’s interpretive starting point is the ordinary meaning of “exchange.” He turns to Merriam-Webster, defining “exchange” as:

“the act of giving or taking one thing in return for another,”
“the act or process of substituting one thing for another,” or
“reciprocal giving and receiving.”

Applying this to § 61‑11‑25(a), he reasons that:

“Here, the petitioner did not enter (‘give’) his guilty plea to the improper registration charge ‘in return’ for the State’s dismissal of his possession charge, since he entered (‘gave’) guilty pleas to both of those charges simultaneously.”

On this view, D.K.’s guilty plea to the improper registration charge cannot be fairly described as “in return” for the dismissal of the felony, because at the moment of the plea:

The felony was not dismissed; and
There was no guarantee that it would be dismissed.

The dissent stresses that the plea and the dismissal are temporally and causally distinct. The plea occurred in May 2014; the dismissal occurred in May 2016, contingent entirely on two years of compliance with diversion conditions—a classic “condition precedent.”

B. The Role of Timing and Contingency

Justice Trump places great weight on the timeline:

On May 12, 2014, D.K. pled guilty to both the possession and improper registration charges.
At that point, the felony charge remained subject to future adjudication:
- If D.K. failed to comply with diversion, he could be adjudicated guilty of the felony.
- If he succeeded, the felony would be dismissed.
On May 12, 2016, after two years of compliance, the felony was dismissed.

The dissent underscores that, at the time of the guilty plea to the improper registration charge, dismissal of the felony “was still entirely possible” but not guaranteed. Thus, the “act of giving” the misdemeanor plea could not be described as a direct “return” for the ultimate dismissal; instead, what the State offered at that time was only a possibility of dismissal — placed “in the petitioner’s hands” to earn through his conduct.

Therefore, when the felony was actually dismissed in 2016, the dissent identifies the true reciprocal act as:

State’s act: Dismissal of the felony charge;
Defendant’s reciprocal act: Compliance with the diversion conditions for two years.

That is the “exchange,” not the earlier guilty plea to the improper registration count.

C. Critique of the Majority’s “Single Transaction” Theory

The majority is described as viewing “the plea agreement and conjunctive pretrial diversion agreement together” as a single transaction, from which it concludes that the dismissal of the possession charge was “in exchange for” the guilty plea on the improper registration charge.

Justice Trump responds that the majority’s approach:

Reads extra words into the statute. He paraphrases what the majority must be doing in order to reach its conclusion, effectively rewriting the statute as:

“any person who has been charged with a criminal offense . . . against whom charges have been dismissed, and not in exchange for a guilty plea to another offense [and not as part of a contingent, contractual consideration under a plea agreement involving another offense to which he also entered a plea of guilty,] may petition the circuit court for expungement.”

Those bracketed words are not in the statute; they are, in his view, “judicial embroidery” forbidden by cases like Ransom and Brooke B..
Treats every term of the plea/diversion structure as global consideration. The dissent characterizes the majority as treating the plea agreement and the diversion agreement as “one indivisible contract, under which every term to which the petitioner agreed constitutes ‘contractual consideration’ for every term to which the State agreed and vice versa, regardless of the timing or contingencies of each term.”
Improperly imports commercial contract doctrine. Justice Trump concedes that such reasoning may “make sense in the context of a commercial contract dispute, or even in a dispute over an alleged plea agreement breach,” but he insists that the expungement statute is not a contract and should not be read through that lens.
Confuses contractual analysis with statutory interpretation. The dissent draws a line between:
- Using contract principles to interpret and enforce plea agreements (e.g., when deciding if the State breached a promise), and
- Using contract principles to interpret a statute governing expungement eligibility.
He argues that the latter is improper; the statute must stand on its own terms.

D. Application of the Plain-Meaning Rule

Having defined “exchange” and identified the true reciprocal acts, Justice Trump concludes:

“When giving effect to the ordinary meaning of the language in West Virginia Code § 61‑11‑25(a) (2012), it becomes obvious that the May 12, 2016, dismissal of the petitioner's possession charge was ‘in exchange for’ satisfaction of his pretrial diversion agreement as of that date, rather than his guilty plea to the improper registration charge on May 12, 2014.”

He further notes that, under the pretrial diversion structure as understood by both parties:

“Either the Petitioner would successfully complete the pretrial diversion agreement, and the [possession] charge would be dismissed, or he would fail to complete it, and the Court would adjudicate the Petitioner to be guilty of [the possession charge].”

Thus:

The State never agreed, at the time of the plea, to dismiss the felony outright in exchange for anything;
It merely agreed to defer prosecution and allow D.K. an opportunity to earn dismissal through conduct;
Accordingly, the statutory bar should not apply.

E. Remedy and Consequences

Justice Trump’s final step is remedial:

“Once D.K. fulfilled his responsibilities under the pre-trial diversion agreement and his possession charge was dismissed as a result, he was eligible for expungement. For the foregoing reasons, I would have reversed the ICA's decision and the circuit court's August 12, 2022, order, and remanded the case with directions to the circuit court to fully consider D.K.'s petition for expungement.”

This is important: even under the dissent’s view, D.K. is not automatically entitled to expungement. Instead, he becomes eligible to petition under § 61‑11‑25(a). The statute still leaves the circuit court with discretion and other criteria to apply; the dissent would simply remove the absolute bar that the majority recognized.

VII. Complex Concepts Simplified

A. What Is Expungement?

Expungement is the legal process of erasing or sealing criminal records so that, for most purposes, the underlying charges and proceedings are treated as though they never occurred. It is distinct from:

A pardon – which forgives the offense but does not necessarily erase the fact of conviction from the record; and
Vacatur or reversal – which undoes a conviction on legal grounds (e.g., error in trial).

Expungement statutes typically aim to alleviate the long-term consequences of contact with the criminal system (employment, housing, licensing), while balancing public-safety and transparency concerns. West Virginia’s statute allows expungement for certain dismissed charges but expressly excludes charges dismissed as part of a plea exchange.

B. Pretrial Diversion Agreement

A pretrial diversion agreement is an arrangement in which prosecution is deferred while the defendant satisfies certain conditions, often including:

Obeying all laws;
Maintaining employment or schooling;
Abstaining from drugs or alcohol;
Completing treatment, counseling, or community service.

If the defendant complies for the agreed period:

The prosecutor may dismiss the charge, or
Decline to move forward with prosecution.

If the defendant fails:

The prosecution proceeds, often on the basis of an existing guilty plea or admission.

In D.K.’s case, the felony possession charge was placed on diversion for two years. Once he completed the conditions, the State dismissed that charge in 2016. The dissent treats the diversion agreement as separate from, and not merged into, the plea agreement for the improper registration charge.

C. Plea Agreement

A plea agreement is a negotiated settlement between the prosecution and the defendant in which:

The defendant pleads guilty (or nolo contendere) to one or more charges; and
The prosecution agrees to give up something in return (e.g., dropping other charges, recommending a lower sentence, or agreeing to diversion on certain counts).

In this case, the “three-part resolution” included:

Guilty pleas to the possession and improper registration charges;
Deferred prosecution and potential dismissal of the possession charge through diversion; and
Dismissal of the weapons charge.

The majority, as described by the dissent, viewed this entire resolution as one indivisible transaction—a single bargain. Justice Trump resists this, emphasizing that statutory interpretation hinges on the direct cause of the dismissal (successful diversion), not on the broader strategic context in which the agreements were made.

D. Condition Precedent

A condition precedent is an event that must happen before a party’s duty under a contract (or legal arrangement) arises. If the condition does not occur, the corresponding duty never becomes owed.

In D.K.’s case:

The State’s duty to dismiss the felony possession charge arose only if D.K. complied with the diversion conditions for two years.

That two-year compliance is the “condition precedent.” Until it was satisfied, the State had no obligation to dismiss the felony. Justice Trump uses this concept to highlight that the ultimate dismissal was conditioned on behavior long after the guilty plea, underscoring why the plea should not be viewed as the direct “exchange” for dismissal.

E. Contract Law and Plea Agreements

Courts often say that plea agreements are “similar to contracts,” because both involve mutual promises. But as Myers emphasizes, that analogy is imperfect, and:

Contract law is used primarily to ensure that prosecutors keep their promises to defendants;
It is not a blanket license to import all commercial contract doctrines wholesale into the criminal process; and
Still less is it a license to use contract analysis to rewrite independent statutes.

Justice Trump’s dissent draws a line: even if plea agreements can be analyzed with some contract tools in disputes about their enforcement, that does not justify reading contract concepts into the language of an expungement statute that has its own separate text and purpose.

VIII. Impact and Broader Significance

A. If the Dissent’s View Were Adopted

Although Justice Trump’s position is a dissent and thus not binding law, it sketches a concrete approach with substantial potential impact if it were to command a majority in the future or be enacted legislatively.

Broader Expungement Eligibility.
Under the dissent’s reading, a dismissed charge is barred from expungement only if the dismissal is directly in return for a guilty plea to another offense—i.e., where the plea and dismissal are truly reciprocal:
- “You plead guilty to Charge A; we will immediately dismiss Charge B because of that plea.”
If, instead, dismissal results from a separate condition (such as successful completion of diversion), then the dismissal is “in exchange for” that condition, not the plea, and expungement eligibility remains possible.
Clearer Causal Focus.
Courts and practitioners would be required to focus on the actual cause of dismissal: what did the defendant have to do, as of the dismissal date, to earn dismissal? If it was simply “having already pled guilty to another offense,” the bar applies. If it was “complete a program, obey the law, meet conditions,” then the bar does not.
Incentivizing Meaningful Diversion.
The dissent’s interpretation might encourage genuine diversionary structures. Prosecutors who want certain dismissals to remain exempt from expungement could still structure direct “plea-for-dismissal” trades. But when the State opts for a diversion model in which the defendant earns dismissal through post-plea conduct, the statute would not treat that as a plea-based “exchange.” This could:
- Reinforce diversion as a rehabilitative tool; and
- Reduce the long-term stigma of charges dismissed after successful program completion.
Limits on Judicial Creativity in Statutory Interpretation.
The dissent’s repeated emphasis on “no judicial embroidery” and “not reading into a statute that which it does not say” has broad implications beyond expungement law. It reflects a commitment to:
- Textual fidelity and legislative supremacy; and
- Restraint in using policy or analogy (such as contract theory) to stretch statutory language.
This approach would influence future statutory interpretation cases in West Virginia, especially where courts face tempting but textually unsupported expansions of statutory exclusions or exceptions.

B. Practical Contrast with the Majority’s Approach

Based on the dissent’s description, the majority’s rule effectively treats:

Any dismissal that occurs as part of a larger plea/diversion “package” as having been “in exchange for a guilty plea to another offense,” regardless of whether the actual proximate cause of dismissal is a later condition like diversion compliance.

That position tends to:

Narrow the expungement statute’s reach. Many defendants whose charges are dismissed after diversion but in the context of a global plea would be categorically excluded from expungement under the majority’s reading.
Blur causal relationships. It downplays the legal significance of conditions precedent (like diversion) by treating them as mere internal terms of the “package,” rather than as the operative ground for dismissal.

Justice Trump’s dissent spotlights these implications and offers an administrable alternative: center the analysis on what the defendant had to do to obtain dismissal as of the dismissal date.

C. Legislative Response and Future Litigation

Even as a dissent, Justice Trump’s opinion can:

Serve as a blueprint for future legislative amendments to § 61‑11‑25(a), for example by clarifying whether dismissals after successful diversion should or should not fall within the phrase “in exchange for a guilty plea to another offense”; and
Provide a persuasive authority for litigants in future cases where the cause of dismissal (plea vs. performance) is contested under the same statutory language or similar provisions.

If, for instance, the Legislature believes that successful diversionary dismissals ought to be expungeable regardless of their relationship to broader plea deals, it could codify something close to Justice Trump’s position by adding language such as:

“For purposes of this subsection, a dismissal entered upon completion of a pretrial diversion, deferred adjudication, or similar rehabilitative program shall not be deemed to have been entered ‘in exchange for a guilty plea to another offense.’”

Conversely, if the Legislature intends to codify the majority’s broader reading, it could expressly state that any dismissal contained in a plea package referencing a guilty plea to another offense is excluded from expungement.

IX. Evaluation of the Dissent’s Approach

A. Strengths

Textual Clarity.
The dissent’s core strength is its tight alignment with the statutory language. It:
- Identifies the key word (“exchange”);
- Uses widely accepted dictionary definitions; and
- Applies them transparently to the timeline and conditions of the case.
This makes the reasoning accessible and predictable for practitioners and lower courts.
Respect for Legislative Limits.
By refusing to read additional qualifications into § 61‑11‑25(a), the dissent honors the separation of powers. If the Legislature had wanted to bar expungement whenever dismissed charges appear in the same plea package as a guilty plea, it could have said so explicitly.
Doctrinal Consistency.
The dissent is neatly grounded in a coherent line of West Virginia cases (Epperly, Cole, Ransom, Brooke B., Myers) that stress:
- Plain meaning;
- Ordinary usage of statutory terms; and
- Restraint against judicial rewriting of statutes.
Fairness and Rehabilitation.
While the dissent is formally textualist, it also aligns with rehabilitative goals of diversion and expungement: a defendant who has done what the State required for two years to earn dismissal is not forever barred from clearing the dismissed felony merely because he also pled guilty to a minor misdemeanor in the same multi-count case.

B. Potential Weaknesses or Counterarguments

From another perspective, one might raise concerns or counterpoints to the dissent’s approach:

Functional View of “Exchange.”
The majority could argue (and implicitly does, as described in the dissent) that in real-world plea bargaining, the State would not have offered diversion and possible dismissal on the felony at all absent the global plea package. Functionally, then:
- The guilty plea to the improper registration charge was part of the price the State demanded for both diversion and dismissal on the felony; and
- Thus, the entire dismissal is “in exchange for” that plea in a practical sense.
The dissent’s narrower focus on the direct, immediate cause of dismissal could be criticized as under-inclusive of how parties actually view the “exchange” in complex pleas.
Administrative Complexity.
The dissent accuses the majority of “overly complicated” interpretation, but one might argue that the dissent’s causal analysis could itself become complex, requiring courts to:
- Dissect whether dismissal was more directly linked to a guilty plea, to diversion performance, or to both; and
- Scrutinize plea and diversion documents to parse out the primary consideration for every term.
The majority’s unitary-transaction view may be administratively simpler, even if broader.
Legislative Intent on Plea-Based Dismissals.
One could argue that § 61‑11‑25(a) was intended to prevent expungement of any charge dismissed as part of a plea-bargained resolution—at least where dismissal would not have occurred absent a guilty plea to some other offense. On that reading, the Legislature’s choice of “in exchange for a guilty plea” could be construed more broadly, and the dissent’s narrower “direct causal exchange” might not capture the full intended scope.

Nonetheless, Justice Trump’s dissent provides a rigorous textual framework that future courts or legislators can either adopt or explicitly reject, thereby clarifying the law.

X. Conclusion

Justice Trump’s dissent in In re: Petition of D.K. for Expungement of Record offers a sharply defined, text-centered reading of West Virginia’s expungement statute. It maintains that:

The phrase “in exchange for a guilty plea to another offense” in § 61‑11‑25(a) must be applied according to its ordinary meaning: a direct reciprocal trade;
In D.K.’s case, the operative exchange for dismissal of the felony possession charge was his successful completion of the pretrial diversion conditions over two years, not his guilty plea to a separate misdemeanor; and
Therefore, the statutory bar did not apply, and D.K. should have been deemed eligible to petition for expungement.

The dissent criticizes the majority for:

Conflating plea and diversion agreements into an indivisible contract; and
Importing contract-law principles into the interpretation of a clear criminal statute, in a way that effectively rewrites the legislative text and narrows expungement eligibility beyond what the Legislature specified.

While not controlling precedent, the dissent is significant in at least three respects:

It articulates a robust textualist methodology that will likely influence future statutory interpretation debates in West Virginia.
It highlights an important doctrinal and policy fault line in expungement law: how to treat dismissals that occur after successful diversion within the context of broader plea bargains.
It provides a structured argument that the Legislature may either embrace (by clarifying that diversionary dismissals are expungeable) or reject (by broadening the statutory bar) in any future amendments to § 61‑11‑25(a).

Ultimately, the dissent frames the core question in clear terms: when the State dismisses a charge only after a defendant has fulfilled rehabilitative conditions over a period of years, is that dismissal truly “in exchange for a guilty plea” to some other offense, or is it instead an exchange for the defendant’s post-plea conduct and compliance? Justice Trump’s answer—grounded in ordinary language and longstanding canons of construction—would allow individuals like D.K. at least a chance to clear dismissed charges from their records after they have earned dismissal through successful diversion.

"In Exchange For" and Expungement Eligibility: Justice Trump's Textualist Dissent in In re D.K.