Dressner v. Commonwealth

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

13
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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