PRESENT: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 071162 OPINION BY
JUSTICE S. BERNARD GOODWYN
NINA CARMAN DOTSON June 6, 2008
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
Larry B. Kirksey, Judge
In this appeal, we consider whether a criminal charge that
was dismissed pursuant to a first offender statute, Code
§ 18.2-251, can be expunged from a defendant’s record.
Nina Dotson (“Dotson”), charged with possession of
marijuana under Code § 18.2-250.1, tendered a plea of nolo
contendere in the Circuit Court of the City of Bristol. The
court accepted the plea, deferred proceedings pursuant to a
first offender statute, Code § 18.2-251, and, upon Dotson’s
successful completion of the obligations imposed upon her by
the court, dismissed the charge. Approximately three years
later, Dotson made a motion for expungement of her records
regarding the possession of marijuana charge. The trial court
granted the motion. The Commonwealth appeals.
On August 2, 2001, Dotson pled not guilty to the
misdemeanor charge of possession of marijuana and was convicted
in the General District Court of the City of Bristol. Dotson
appealed the conviction to the Circuit Court of the City of
Bristol, where she tendered a plea of nolo contendere as part
of an agreement that the Commonwealth would recommend that she
be treated as a first offender pursuant to Code § 18.2-251.
The court accepted the plea and deferred proceedings pursuant
to the first offender statute. The trial court’s order did not
state that there was a finding of guilt or that there was
evidence sufficient for a finding of guilt.
Pursuant to the disposition of her claim under the first
offender statute, the court ordered Dotson to serve one year of
active probation and suspended her driver’s license for six
months. The court also ordered Dotson to pay the cost of the
proceedings within six months, enter into and successfully
complete any substance abuse programs as directed by her
probation officer, complete twenty-four hours of community
service, and remain free from using drugs and alcohol. On
October 23, 2002, the circuit court ruled that Dotson had
satisfied her court-ordered obligations and, based upon
Dotson’s successful completion of those court-ordered
obligations, the court dismissed the possession of marijuana
charge.
On December 27, 2005, Dotson served the Commonwealth with
a motion for expungement of her police and court records
regarding the possession of marijuana charge. Dotson stated in
her motion that the charge had been dismissed upon her
successful completion of her court-ordered obligations. Dotson
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did not allege that she had been acquitted or that a nolle
prosequi had been taken in her case. Her motivation for
seeking expungement, as stated in her motion, was a job
rejection and the potential for subsequent rejections due to
her criminal record.
After a hearing, the trial court found that “[u]nwarranted
damage [] occurred to [Dotson] and may occur in the future if
her arrest record is not expunged.” The trial court also found
that, even though the court had treated Dotson as a first
offender, the court’s order doing so failed to “reflect a
finding of guilt or that the evidence would have been
sufficient for a finding of guilt.” Based on these findings,
the trial court ordered that Dotson’s arrest and court records
regarding the possession of marijuana charge be expunged.
Code § 19.2-392.1 contains the following statement of
policy:
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).
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Code § 19.2-392.2(A) lists the pertinent occasions when an
expungement may be sought; it states, in relevant part:
If a person is charged with the commission of a
crime and (1) [i]s 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 . . . .
Code § 19.2-392.2(A). ∗ There is no dispute regarding the fact
that Dotson was neither acquitted nor was a nolle prosequi
taken dismissing her charge. Thus, under the statute, in order
for Dotson’s charge to be expunged, it must have been
“otherwise dismissed.”
The Commonwealth notes that Dotson pled nolo contendere
and that the relevant first offender statute, Code § 18.2-251,
requires a court to find evidence sufficient for a finding of
guilt prior to placing a defendant on first offender status.
The Commonwealth argues that expungement is designed for
“innocent” citizens, and a charge dismissed pursuant to a first
offender statute is not “otherwise dismissed” as required by
Code § 19.2-392.2(A); thus, it may not be expunged.
Dotson argues that she is entitled to expungement despite
her plea of nolo contendere because the trial court’s order,
deferring disposition of her charge and placing her on terms
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pursuant to Code § 18.2-251, did not expressly state that the
court found evidence sufficient for a finding of guilt.
Analogizing her dismissal to an accord and satisfaction, Dotson
claims that her charge qualifies for expungement because it was
“otherwise dismissed” within the meaning of Code § 19.2-
392.2(A). We disagree with Dotson.
In Commonwealth v. Jackson, 255 Va. 552, 499 S.E.2d 276
(1998), this Court offered the following explanation regarding
a plea of nolo contendere:
We recognize that a plea of nolo contendere is not a
confession of guilt and has no effect beyond
permitting the court to impose sentence in a
particular case. Nonetheless, by entering a plea of
nolo contendere, the defendant "implies a confession
. . . of the truth of the charge . . . [and] agrees
that the court may consider him guilty" for the
purpose of imposing judgment and sentence. Thus,
while not an admission of guilt, neither is a plea of
nolo contendere a declaration of innocence equivalent
to a plea of not guilty.
Id. at 555, 499 S.E.2d at 278 (citations omitted).
Dotson, by pleading nolo contendere to the possession of
marijuana charge, agreed that the court could consider her
guilty for the purpose of imposing judgment and sentence.
Accepting Dotson’s plea of nolo contendere, the trial
court placed her on first offender status. The first offender
∗
Code § 19.2-392.2 was amended effective July 1, 2007.
See 2007 Acts chs. 465, 824, 883, and 905. However, these
amendments are not relevant to this case.
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statute, Code § 18.2-251, states that if a person pleads guilty
or enters a plea of not guilty, “the court, upon such plea if
the facts found by the court would justify a finding of guilt,
without entering a judgment of guilt and with the consent of
the accused, may defer further proceedings and place him on
probation upon terms and conditions.” Code § 18.2-251
(emphasis added). By statute, inherent in a trial court
placing a defendant on first offender status is a finding by
the trial court that there is evidence sufficient to find the
defendant guilty. Under the first offender statute, probation
and ultimate dismissal is conditioned upon a finding of guilt.
Gregg v. Commonwealth, 227 Va. 504, 507, 316 S.E.2d 741, 743
(1984).
This Court presumes that the trial court followed the
statutory mandate of Code § 18.2-251. See Napert v. Napert,
261 Va. 45, 47, 540 S.E.2d 882, 884 (2001); Beck v. Semones,
145 Va. 429, 442, 134 S.E. 677, 681 (1926). As a matter of
law, the trial court had to find there was sufficient evidence
to find Dotson guilty before disposing of her case pursuant to
the first offender statute by deferring further proceedings and
placing Dotson on probation with terms and conditions that had
to be satisfied prior to the dismissal of her charge.
A defendant cannot be considered “innocent” as
contemplated by the expungement statute when he or she
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enters a plea of nolo contendere and the trial court finds
that the evidence was sufficient to prove his or her
guilt. Jackson, 255 Va. at 555-56, 499 S.E.2d at 278.
Dotson, nevertheless, claims that her situation may be
analogized to one in which a charge is dismissed by accord
and satisfaction. However, in Jackson, we held that an
accord and satisfaction “dismissal occurs without any
determination of guilt or imposition of penalty by
judicial authority.” Jackson, 255 Va. at 556, 499 S.E.2d
at 279. We further held that:
A person deferred from judgment following a
determination that the evidence is sufficient to
support a conviction is not "innocent" of the
offense regardless of the plea originally entered.
Nor does a dismissal following satisfaction of the
terms of that deferral render the case "otherwise
dismissed" for purposes of expungement.
Id. at 557, 499 S.E.2d at 279.
Dotson pled nolo contendere and was placed on first
offender status. The trial court was required to find evidence
sufficient for a finding of guilt in order to defer the
proceedings pursuant to the first offender statute, Code
§ 18.2-251. Her charge was not dismissed until after she
completed court-ordered obligations including the suspension of
her operator’s license, probation, and payment of court costs.
By statute, such obligations could not be imposed absent a
finding of evidence sufficient to find her guilty. Thus,
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Dotson’s charge was not “otherwise dismissed” within the
meaning of the expungement statute, and Dotson was not entitled
to have the charge expunged from her record.
We will reverse the judgment of the trial court granting
expungement and enter final judgment for the Commonwealth.
Reversed and final judgment.
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