Dressner v. Commonwealth ( 2013 )

Present: All the Justices
ALISON ANNE DRESSNER
OPINION BY
v. Record No. 120496 CHIEF JUSTICE CYNTHIA D. KINSER
JANUARY 10, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Charles J. Maxfield, Judge
In this appeal challenging a denial of expungement of
police and court records, we conclude that a possession of
marijuana charge, amended to a reckless driving charge, was
"otherwise dismissed" as contemplated by Code § 19.2-
392.2(A)(2). Therefore, we will reverse the circuit court's
judgment denying the requested expungement.
RELEVANT FACTS AND PROCEEDINGS 1
Alison Anne Dressner was issued a summons for possession of
marijuana in violation of Code § 18.2-250.1. Prior to a hearing
in the General District Court of Fairfax County, the
Commonwealth amended the charge to reckless driving in violation
of Code § 46.2-852. The amendment was noted on the face of the
original summons. Dressner was then arraigned on the amended
charge of reckless driving, entered a guilty plea to that
charge, and was found guilty. Pursuant to a plea agreement, the
general district court imposed a fine of $200.
1
The relevant facts are set forth in a written statement of
facts filed pursuant to Rule 5:11(e).
Subsequently, Dressner filed a "Petition for Expungement of
Police and Court Records" in the Circuit Court of Fairfax
County. At a hearing on the petition, the circuit court found
that Dressner suffered a loss of employment because an
employer's background check revealed the possession of marijuana
charge. Thus, the court concluded Dressner established that the
continuing existence of information about the possession of
marijuana charge would constitute a "manifest injustice" under
Code § 19.2-392.2(F). The only issue remaining in dispute,
according to the court, was whether Dressner was "acquitted" of
the possession of marijuana charge, or whether the charge was
"otherwise dismissed" pursuant to Code § 19.2-392.2(A)(1) and
(2), respectively.
After hearing argument by the parties, the circuit court
denied the petition for expungement of the police and court
records pertaining to the possession of marijuana charge. The
court concluded that because the original summons was amended,
"expunging the [p]ossession of [m]arijuana charge would also
expunge the record supporting the [r]eckless [d]riving
conviction" and thereby "distort [Dressner's] record in a manner
deemed impermissible . . . in Necaise v. Commonwealth, 281 Va.
666, 669[, 708 S.E.2d 864, 866] (2011)."
We awarded Dressner this appeal. Dressner asserts that the
circuit court erred by holding (1) that the possession of
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marijuana charge was not "otherwise dismissed;" (2) that
expungement of the possession of marijuana charge would distort
the record; and (3) that Dressner was not eligible for
expungement because she pled guilty to an amended charge even
though the amended charge was not a lesser-included offense of
the offense originally charged on the summons.
ANALYSIS
The expungement statute, Code § 19.2-392.2, provides, in
relevant part, that a person charged with the commission of a
crime "may file a petition setting forth the relevant facts and
requesting expungement of the police records and the court
records relating to the charge" if the person was "acquitted, or
[a] nolle prosequi is taken or the charge is otherwise
dismissed, including dismissal by accord and satisfaction
pursuant to § 19.2-151." Code § 19.2-392.2(A). The "threshold
determination to be made by the trial court on considering any
petition for expungement . . . is whether the petitioner has a
right to seek expungement of those records under an applicable
provision of Code § 19.2-392.2(A)." Daniel v. Commonwealth, 268
Va. 523, 530, 604 S.E.2d 444, 448 (2004). The dispositive
question in this appeal is whether the possession of marijuana
charge was "otherwise dismissed" pursuant to Code § 19.2-
392.2(A). That issue is a question of law that this Court
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reviews de novo. See Commonwealth v. Morris, 281 Va. 70, 76,
705 S.E.2d 503, 505 (2011).
The Commonwealth argues that the possession of marijuana
charge was not "otherwise dismissed" within the meaning of the
expungement statute because that charge, as subsequently
amended, resulted in a conviction. The Commonwealth further
asserts that expungement of the records pertaining to the
possession of marijuana charge would distort the record and
events resulting in the reckless driving charge and conviction.
Citing Brown v. Commonwealth, 278 Va. 92, 677 S.E.2d 220 (2009),
Dressner, however, argues that the possession of marijuana
charge was "otherwise dismissed" because she occupies the status
of one who is innocent of that particular charge. Dressner
points out that she never entered any plea to the possession of
marijuana charge, that she was not found guilty of the charge,
that the general district court did not make a finding that the
evidence was sufficient to support a conviction for possession
of marijuana, and that no terms were imposed on her in exchange
for having the charge amended to reckless driving. According to
Dressner, the possession of marijuana charge was "otherwise
dismissed by legal operation [of] the Commonwealth's amendment
of the charge to [r]eckless [d]riving."
Contrary to the circuit court's holding and the
Commonwealth's assertions, our decision in Necaise is not
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dispositive in this case. There, the petitioner, who had pled
guilty to two misdemeanor charges that were lesser-included
offenses of the two original felony charges, sought expungement
of the records regarding the felony charges. 281 Va. at 668,
708 S.E.2d at 865. This Court affirmed the trial court's
judgment refusing to expunge those charges. Id. at 670, 708
S.E.2d at 866. Our decision rested on the fact that "[b]ecause
the misdemeanors of which Necaise was convicted were lesser
included offenses of the felonies with which he was charged, all
of the elements of the offenses of which he was convicted were
subsumed within the felony charges and they form[ed] the sole
bases for the convictions." Id. at 669, 708 S.E.2d at 866.
Therefore, we held that "Necaise, having been found guilty of
offenses charged within the warrants upon which he was arrested,
was not an 'innocent citizen' entitled to the benefit of the
expungement statutes." Id. at 670, 708 S.E.2d at 866.
The possession of marijuana charge in the instant case,
however, was amended to the completely separate and unrelated
charge of reckless driving in violation of Code § 46.2-852.
Reckless driving is not a lesser-included offense of possession
of marijuana. Compare Code § 46.2-852, with Code § 18.2-250.1.
In other words, "the elements of the offense[] of which
[Dressner] was convicted" were not "subsumed within the
[possession of marijuana charge]" and did not "form the sole
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bas[i]s for the conviction[]." Necaise, 281 Va. at 669, 708
S.E.2d at 866. Thus, the possession of marijuana charge was
necessarily "otherwise dismissed" within the intendment of Code
§ 19.2-392.2(A)(2). Indeed, the Commonwealth can point to no
other disposition.
Furthermore, the facts here are analogous to those in
Brown, where we held that two petitioners each occupied "the
status of 'innocent' so as to qualify under the expungement
statute as a person whose charge has been 'otherwise
dismissed.'" 278 Va. at 102, 677 S.E.2d at 226-27 (quoting
Gregg v. Commonwealth, 227 Va. 504, 507, 316 S.E.2d 741, 743
(1984)). There, neither of the petitioners entered any kind of
plea to the misdemeanor charges for which they sought
expungement of the records. Id. at 102, 677 S.E.2d at 225.
Further, the district courts where the charges were pending made
no findings that evidence was sufficient to convict, nor were
the offenses ones for which a deferred disposition or first
offender status was allowed. Id. As we noted, each district
court took "the criminal charge under advisement while the
respective petitioner . . . performed certain agreed-upon tasks
with the understanding that, upon doing so, the charge would be
dismissed." Id. Thus, we "liken[ed] the dismissals . . . to a
nolle prosequi or accord and satisfaction; each dismissal took
place without a determination of guilt, without a finding of
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evidence sufficient to establish guilt, and without penalties or
conditions imposed by judicial authority." Id. The petitioners
occupied the status of innocent and were persons whose charges
had been "otherwise dismissed" under the expungement statute.
Id. at 102, 677 S.E.2d at 226.
Dressner likewise never entered any plea to the possession
of marijuana charge, nor did the general district court make any
finding that the evidence was sufficient to establish guilt on
that charge. Nothing in the record suggests that the general
district court even heard any evidence with regard to the
possession of marijuana charge, and the general district court
did not take the matter under advisement or defer disposition.
In fact, Dressner, unlike the petitioners in Brown, did not
agree to perform any tasks with the understanding that the
possession of marijuana charge would then be dismissed. The
record reveals only that the general district court imposed a
fine of $200 on the reckless driving conviction pursuant to a
plea agreement. Any suggestion that the plea agreement
contained other terms that would be relevant to the question of
expungement now before us is pure speculation. Thus, as in
Brown, Dressner occupies the "status of 'innocent' [as to the
possession of marijuana charge] so as to qualify under the
expungement statute as a person whose charge has been 'otherwise
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dismissed.' " Id. (quoting Gregg, 227 Va. at 507, 316 S.E.2d at
743).
The circuit court's sole basis for refusing to expunge the
records pertaining to the possession of marijuana charge was
that such expungement would distort Dressner's record. While we
noted that concern in Necaise, it is not a statutory basis that
makes a petitioner ineligible to seek expungement of records.
See Code § 19.2-392.2(A). Thus, we conclude that the circuit
court erred by finding that Dressner could not, under Code
§ 19.2-392.2(A), seek expungement of the records pertaining to
the possession of marijuana charge.
With that conclusion, the next step is to determine whether
"the continued existence and possible dissemination of
information relating to the [marijuana charge] causes or may
cause circumstances which constitute a manifest injustice to the
petitioner." 2 Code § 19.2-392.2(F), see also Brown, 278 Va. at
103, 677 S.E.2d at 226 (holding second prong of expungement
statute is to decide question of manifest injustice).
2
Code § 19.2-392.2(F) also provides that "if the petitioner
has no prior criminal record and the arrest was for a
misdemeanor violation, the petitioner shall be entitled, in the
absence of good cause shown to the contrary by the Commonwealth,
to expungement of the police and court records relating to the
charge, and the court shall enter an order of expungement."
Although Dressner's possession of marijuana charge was a
misdemeanor, the record contains no information nor did the
circuit court make any finding concerning whether Dressner had a
prior criminal record.
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As already noted, the circuit court found that Dressner
demonstrated the existence of manifest injustice through her
loss of employment as a result of a background check that
revealed the possession of marijuana charge. 3 Therefore,
Dressner has satisfied the requirements of the expungement
statute and is entitled to have the police and court records
relating to the possession of marijuana charge expunged.
CONCLUSION
For the reasons stated, we will reverse the circuit court's
judgment and remand for entry of an appropriate order of
expungement pursuant to Code § 19.2-392.2(F).
Reversed and remanded.
JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE McCLANAHAN
join, dissenting.
In this case, the circuit court denied Dressner’s request
to have a possession of marijuana charge expunged, holding
that the Possession of Marijuana charge was amended to
Reckless Driving on the same summons and that
expunging the Possession of Marijuana charge would
also expunge the record supporting the Reckless
Driving conviction and that granting the Petition for
Expungement would distort the Petitioner's record in a
manner deemed impermissible by the Supreme Court of
Virginia in Necaise v. Commonwealth, 281 Va. 666, 669
(2011).
Because I respectfully disagree with the majority’s conclusion
that a charge that is amended constitutes one that is “otherwise
3
The Commonwealth did not assign cross-error to this
holding by the circuit court. See Rule 5:18(c); Rule 5:25.
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dismissed” for the purpose of having the original charge
expunged, I would affirm the judgment of the trial court.
Any analysis of the expungement statute must be guided by
the legislative policy behind that statute, specifically, Code
§ 19.2-392.1.
The General Assembly finds that arrest records
can be a hindrance to an innocent citizen’s ability to
obtain employment, an education and to obtain credit.
It further finds that the police and court records of
those of its citizens who have been absolutely
pardoned for crimes for which they have been unjustly
convicted can also be a hindrance. This chapter is
intended to protect such persons from the unwarranted
damage which may occur as a result of being arrested
and convicted.
Code § 19.2-392.1 (emphasis added). When an individual is
acquitted or “[a] nolle prosequi is taken or the charge is
otherwise dismissed, including dismissal by accord and
satisfaction pursuant to [Code] § 19.2-151, he may file a
petition setting forth the relevant facts and requesting
expungement of the police records and the court records relating
to the charge.” Code § 19.2-392.2(A)(2). However, the policy
is clear: expungement should only be available to an innocent
citizen.
As the majority states, this case turns on the meaning of
“otherwise dismissed” as used in Code § 19.2-392.2(A). “When
the legislature has used words of a plain and definite import,
courts cannot construe them in a manner which amounts to holding
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that the legislature did not mean what it actually stated.”
Jones v. Jones, 249 Va. 565, 570, 457 S.E.2d 365, 368 (1995).
“When . . . a statute contains no express
definition of a term, the general rule of
statutory construction is to infer the
legislature’s intent from the plain meaning of
the language used.” Hubbard v. Henrico Ltd.
Partnership, 255 Va. 335, 340, 497 S.E.2d 335,
338 (1998) (citing City of Virginia Beach v.
Flippen, 251 Va. 358, 362, 467 S.E.2d 471, 473-74
(1996); Marsh v. City of Richmond, 234 Va. 4, 11,
360 S.E.2d 163, 167 (1987)). An undefined term
must be “given its ordinary meaning, given the
context in which it is used.” Dep’t. of Taxation
v. Orange-Madison Coop. Farm Serv., 220 Va. 655,
658, 261 S.E.2d 532, 533-34 (1980). “The context
may be examined by considering the other language
used in the statute.” City of Virginia Beach v.
Bd. of Supervisors of Mecklenburg County, 246 Va.
233, 236-37, 435 S.E.2d 382, 384 (1993).
Sansom v. Board of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d
345, 349 (1999). “A related principle is that the plain,
obvious, and rational meaning of a statute is always to be
preferred to any curious, narrow, or strained construction.”
Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338
(1983).
As relevant here, “amend” means “to alter . . . formally by
modification, deletion or addition . . . .” Webster’s Third New
International Dictionary 68 (1993). In the legal context,
“dismiss,” means “to put . . . out of judicial consideration
. . . .” Id. at 652. Thus, I believe that an amendment to an
original charge, absent a nolle prosequi being taken on that
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charge, does not constitute the original charge being “otherwise
dismissed.”
For practical purposes, this case is no different from
several others in which we have held that expungement was not
available. ∗ Most recently, in Necaise v. Commonwealth, 281 Va.
666, 669-70, 708 S.E.2d 864, 865 (2011), this Court held that
one who has been convicted of a lesser included offense cannot
obtain expungement under our statutes. In that case, the
original charge of possession of marijuana was never dismissed
but was merely reduced. This Court also focused on the
legislative intent behind the expungement statutes, stating that
the intent
was not to distort the record of events that actually
occurred, but was to avoid injustice to an “innocent
citizen” falsely accused and unjustly convicted.
One who is found guilty is not an “innocent citizen”
entitled to the benefit of the expungement statutes.
The same reasoning applies when a court has found the
evidence sufficient to support a conviction, even
where the charge was later dismissed. Similarly,
where a defendant pleads guilty or nolo contendere but
the charge is later dismissed without a finding of
guilt upon successful completion of probationary
∗
The majority concludes that Brown v. Commonwealth, 278 Va.
92, 677 S.E.2d 220 (2009) controls the outcome of Dressner’s
case, but I believe that the majority misses the obvious
difference between the instant case and Brown. In Brown, this
Court held that expungement was proper where the defendant
entered no plea and the court took a case under advisement
before dismissing the charge without a finding of guilt. Id. at
102, 677 S.E.2d at 225. Here, Dressner entered a guilty plea to
the amended, not dismissed, charge and the court accepted it.
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terms, the defendant is not an “innocent citizen”
entitled to expungement of the records.
Id. (internal citations omitted). Necaise was not convicted of
the felonies with which he was originally charged: felonious
disregard of a police officer’s signal to stop and feloniously
assaulting a police officer engaged in public duties. Id. at
667-68, 708 S.E.2d at 865. Instead, he pled guilty to the
lesser-included misdemeanor of each offense after negotiating to
have his charges reduced. Id. at 668, 708 S.E.2d at 865.
Although the majority seems to focus on the fact that
Necaise’s misdemeanors were “subsumed” within his original
felony charges as the means by which to distinguish that case, I
believe that this is a distinction without a difference. As in
Necaise, where the charges were reduced, Dressner’s original
charge was amended, not dismissed, and she pled guilty to
reckless driving instead of possession of marijuana pursuant to
her plea agreement. This is different from the situation where
the defendant is found not guilty of the original charge or a
nolle prosequi is taken on the original charge. To hold, as the
majority does, that Dressner’s marijuana charge was “otherwise
dismissed” reads something into the record that is not there and
bestows upon Dressner a status of innocent that is unsupported
by the record. Indeed, at oral argument, counsel for Dressner
conceded that the amendment of her marijuana charge to a
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reckless driving charge was a “bargained for exchange” and that
the facts would have shown that
Dressner was in a car with her boyfriend. Her
boyfriend had marijuana on him. Um, there was a small
degree of concern on the part of the defense that a
marijuana charge might be made but she had been
stopped for going 85 miles per hour and hadn’t been
charged with that so the charge was amended and
everybody walked away.
Thus, I believe it is clear that this amendment was not a
dismissal. Rather, this “bargained for exchange” was entered
into not because Dressner was “innocent” but because it was a
plea agreement “and everybody walked away.” Therefore, I would
hold that the trial court did not err in denying Dressner’s
petition for expungement.
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