Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ.,
and Russell and Koontz, S.JJ.
SHAWN S. NECAISE OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 100157 April 21, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Timothy S. Fisher, Judge
Code § 19.2-392.2 provides for the expungement of police
and court records in certain specified circumstances. This
appeal presents the question whether those circumstances
include a situation in which a defendant seeks expungement of
records of felony charges disposed of by the court's
acceptance of the defendant's guilty pleas to lesser included
misdemeanor offenses. We answer that question in the
negative.
Facts and Proceedings
The facts are undisputed. On October 30, 2007, Shawn S.
Necaise was arrested on warrants charging two felonies:
Felonious disregard of a police officer's signal to stop, in
violation of Code § 46.2-817, and feloniously assaulting a
police officer engaged in public duties, in violation of Code
§ 18.2-57. 1
1
Necaise was also charged with several misdemeanor
offenses that are not involved in this appeal.
The felony cases came before the Newport News General
District Court for preliminary hearing on January 22, 2008.
The records of the court show that the charges were "reduced
to 46.2-817 (misdemeanor)" and "reduced to 18.2-57 assault and
battery," respectively. Necaise, represented by counsel,
entered guilty pleas to both misdemeanors. The court accepted
the pleas, found Necaise guilty of the two misdemeanors and,
on the Commonwealth's recommendation, imposed fines and
suspended jail sentences for those two misdemeanors. The
Commonwealth took nolle prosequi as to the other pending
misdemeanor charges.
In 2009, Necaise filed a petition in the Circuit Court of
the City of Newport News pursuant to Code § 19.2-392.2, asking
for expungement of all police and court records pertaining to
the two felony charges and the misdemeanors that had been
dismissed on the Commonwealth's nolle prosequi. The court
entered an order of expungement as to the misdemeanors
disposed of by nolle prosequi, but denied the petition for
expungement of the records pertaining to the two felony
charges. We awarded Necaise an appeal.
Analysis
In relevant part, Code § 19.2-392.2(A) provides as
follows:
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A. If a person is charged with the commission
of a crime or any offense defined in Title 18.2, and
1. Is acquitted, or
2. A nolle prosequi is taken or the charge is
otherwise dismissed, including dismissal by accord
and satisfaction pursuant to § 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.
Necaise assigns error only to the circuit court's refusal to
expunge the two felony records. The parties agree that the
dispositive question is whether those charges were "otherwise
dismissed" under the language of Code § 19.2-392.2(A)(2),
quoted above. The simple answer is that the charges were
never dismissed. Rather, they were "reduced" to lesser
included offenses that resulted in convictions.
Because 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 the sole bases for the convictions. Expungement of the
felony charges would distort the record by leaving the
convictions without any foundation, suggesting that they had
been arbitrarily imposed. The record as it stands contains a
true account of the events that actually occurred and creates
no injustice to either party.
A more fundamental reason for our holding is provided by
the statement of legislative policy contained in Code § 19.2-
3
392.1, which was enacted simultaneously with Code § 19.2-392.2 2
to explain its purpose. Styled "Statement of policy," Code
§ 19.2-392.1 provides:
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.
The legislative intent underlying the expungement
statutes is made clear by the quoted language. It 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. Daniel v. Commonwealth, 268 Va. 523, 530,
604 S.E.2d 444, 447 (2004). 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 terms, the defendant is not an
2
1977 Acts ch. 675.
4
"innocent citizen" entitled to expungement of the records.
Commonwealth v. Jackson, 255 Va. 552, 554, 499 S.E.2d 276, 277
(1998); Gregg v. Commonwealth, 227 Va. 504, 507, 316 S.E.2d
741, 742-43 (1984).
Conclusion
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. For the reasons stated, we will affirm the judgment
of the circuit court. 3
Affirmed.
3
A different result is reached where a case has been
tried on the merits, resulting in a conviction for a lesser
included offense rather than the offense charged, and that
verdict is then set aside and the defendant is retried. That
situation is governed by Code § 19.2-285, which provides in
pertinent part: "If the verdict be set aside and a new trial
granted the accused, he shall not be tried for any higher
offense than that of which he was convicted on the last
trial." In Jones v. Commonwealth, 217 Va. 231, 235, 228
S.E.2d 127, 130 (1976), Kuckenbecker v. Commonwealth, 199 Va.
619, 623, 101 S.E.2d 523, 526 (1958), and Taylor v.
Commonwealth, 186 Va. 587, 589-90, 43 S.E.2d 906, 908 (1947),
we held that the statutory predecessors of Code § 19.2-285
mandated that, in a case retried after a verdict had been set
aside, conviction of a lesser included offense at the first
trial operated as an acquittal of the higher offense charged.
The statute is based upon obvious considerations of double
jeopardy. In each of those cases, the accused was in jeopardy
of conviction of the higher offense as soon as the jury was
sworn at the first trial. The Commonwealth then had its
opportunity to prove the elements of the higher offense beyond
a reasonable doubt, but failed to do so. A retrial for the
higher offense would have been constitutionally infirm as well
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as a violation of the statute. Those considerations are
inapplicable here.
6