Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ.
JOSEPH TILGHMAN DANIEL
OPINION BY
v. Record No. 040116 JUSTICE LAWRENCE L. KOONTZ, JR.
November 5, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SUSSEX COUNTY
Robert G. O’Hara, Jr., Judge
In this appeal, we consider whether under the specific
facts of this case the Circuit Court of Sussex County, the trial
court, properly denied a petition for expungement of the police
and court records relating to a criminal charge under Code
§ 19.2-392.2. We also consider whether the trial court was
required under Code § 19.2-392.2(F) to conduct an evidentiary
hearing to determine the guilt or innocence of the petitioner.
BACKGROUND
The facts are not in dispute. On August 8, 2001, Joseph
Tilghman Daniel was tried in the trial court on a misdemeanor
charge of assault and battery, pursuant to Code § 18.2-57.
Daniel entered a plea of not guilty, and the trial was conducted
without a jury. After receiving evidence from two of the
Commonwealth’s witnesses, the trial court recessed and permitted
the Commonwealth and Daniel to negotiate an agreed disposition.
By order entered on that date, the trial court found “the
evidence sufficient for a finding of guilt” on the criminal
charge, but “[withheld] a finding in the case at [that] time.”
The order then memorialized the parties’ agreement that required
Daniel to pay $500 restitution to the victim and to perform 50
hours of community service. The order further provided that the
case would be taken under advisement until September 10, 2002,
and that if Daniel had committed no further offenses and had
complied with the terms of the agreed disposition, the case
would be dismissed. Thereafter, on September 10, 2002, the
trial court entered an order dismissing the charge against
Daniel after expressly finding that Daniel had “successfully
completed his probation pursuant to the order of this Court
entered on 8 August 2001.”
On October 23, 2002, Daniel filed a petition pursuant to
Code § 19.2-392.2 in the trial court requesting the expungement
of the police and court records relating to the misdemeanor
assault and battery charge. Daniel averred in the petition that
he was “innocent of the charge filed against him,” and that he
had no prior criminal record. Daniel further averred that the
existence and possible dissemination of the information relating
to his arrest may cause circumstances that constitute a manifest
injustice to him because he is an educator and the record of his
arrest will hinder his employment opportunities in the future.
The Commonwealth opposed Daniel’s petition. The
Commonwealth contended that it had not consented to expungement
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as part of the agreed disposition of the charge against Daniel,
and that Daniel’s case did not fall within the category of cases
specified in subsection (A) of Code § 19.2-392.2 as qualifying
for expungement.
On February 19, 2003, the trial court∗ conducted a hearing
on the petition for expungement, receiving oral argument from
both Daniel and the Commonwealth. Daniel asserted that the
September 10, 2002 dismissal of the assault and battery charge
qualified as a charge “otherwise dismissed” under Code
§ 19.2-392.2(A)(2), that he met all the other statutory criteria
for expungement and, thus, that he was entitled to the
expungement of the police and court records relating to that
charge under Code § 19.2-392.2(F). In the alternative, Daniel
further asserted that the trial court’s August 8, 2001 finding
that the evidence would justify a finding of guilt “doesn’t mean
that an acquittal would not have occurred.” Thus, Daniel
contended that he was entitled to challenge that finding in an
evidentiary hearing, which he maintained was required by Code
§ 19.2-392.2(F).
The Commonwealth, relying on Commonwealth v. Jackson, 255
Va. 552, 499 S.E.2d 276 (1998), contended that the prior finding
∗
The circuit court judge who presided over the prior
criminal proceedings in the trial court was not the circuit
court judge who presided over the expungement proceedings.
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by the trial court that the evidence would justify a finding of
guilt precluded a subsequent expungement of the records relating
to the charge because a dismissal following a period of
probation does not fall within the category of charges
“otherwise dismissed” as contemplated by Code § 19.2-
392.2(A)(2). The Commonwealth further contended that the
hearing required by Code § 19.2-392.2(F) is limited to
determining whether the denial of an otherwise valid expungement
petition would cause a manifest injustice and does not include a
challenge to the prior actions or findings of the trial court in
the underlying criminal case.
The hearing was continued to permit counsel to file briefs
in support of their respective positions. In an August 19, 2003
letter opinion, the trial court adopted the view of the
Commonwealth that Jackson was controlling and denied the
petition for expungement. Prior to the entry of a final order,
Daniel filed a formal objection contending that he had not been
afforded “a hearing for the determinations required to be made
by Virginia Code § 19.2-392.2,” and a motion for an evidentiary
hearing.
On October 15, 2003, the trial court conducted a hearing on
Daniel’s motion for an evidentiary hearing and his objection to
the entry of an order denying his petition for expungement.
Reiterating the position stated in his brief, Daniel maintained
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that he was entitled to an evidentiary hearing “at which the
[trial court] would make a determination as to whether or not”
Daniel was actually innocent of the assault and battery charge.
The Commonwealth responded that the expungement proceeding could
not be used to collaterally attack the August 8, 2001 finding by
the trial court. At the conclusion of the hearing, the trial
court entered an order denying Daniel’s petition for
expungement, adopting by reference the rationale stated in the
August 19, 2003 opinion letter. We awarded Daniel this appeal.
DISCUSSION
In relevant part, Code § 19.2-392.2 provides that:
A. If a person is charged with the commission of a
crime 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, or
3. Is granted an absolute pardon for the
commission of a crime for which he has been unjustly
convicted, 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.
. . . .
F. . . . the court shall conduct a hearing on the
petition. 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
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records relating to the charge, and the court shall
enter an order of expungement.
Daniel concedes that his case does not qualify for
expungement under subsections (A)(1) or (A)(3) of this statute.
He maintains, however, as he did in the trial court, that the
charge against him was “otherwise dismissed,” entitling him to
petition for expungement under subsection (A)(2). This is so,
he contends, because a dismissal of a criminal charge following
a period of probation in which the accused is required to comply
with terms that include making restitution to the victim “is
indistinguishable from an Accord and Satisfaction, which is a
dismissal expressly within the purview” of Code § 19.2-
392.2(A)(2). Upon this premise, Daniel further contends that
the trial court abused its discretion in not granting his
petition for expungement because the record on its face
establishes that he has satisfied all the requirements of Code
§ 19.2-392.2(F) for expungement of the police and court records
relating to a misdemeanor charge. We disagree.
In Gregg v. Commonwealth, 227 Va. 504, 316 S.E.2d 741
(1984), we held that a defendant who pled guilty to a first
offender charge of possession of marijuana, but had the judgment
of guilty deferred and the charge subsequently dismissed after
successfully completing a period of probation with terms and
conditions, was not entitled to have the police and court
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records relating to that charge expunged. We observed that
“[t]he expungement statute applies to innocent persons.” Id. at
507, 316 S.E.2d at 742. Thus, we concluded that “[o]ne who is
‘guilty’ cannot occupy the status of ‘innocent’ so as to qualify
under the expungement statute as a person whose charge has been
‘otherwise dismissed.’ ” Id. at 507, 316 S.E.2d at 743.
In Jackson, the case relied upon by the trial court, the
defendant had entered a plea of nolo contendere to a charge of
misdemeanor concealment of merchandise. The trial court
expressly found that the evidence was sufficient to convict the
defendant but refrained from entering a judgment of guilty and
instead required the defendant to “be on ‘good behavior,’ pay
court costs, and not return to the store where the act of
concealment occurred for one year.” When the Commonwealth
subsequently stipulated that the defendant had complied with
these terms, the trial court dismissed the charge. 255 Va. at
554, 499 S.E.2d at 277.
Later seeking an expungement of the police and court
records related to the concealment charge, Jackson contended
that her case could be distinguished from Gregg because she had
not pled guilty and, thus, was an “innocent person” as
contemplated by the expungement statutes. In the alternative,
Jackson contended that the requirement of demonstrating
innocence as a prerequisite to obtaining an expungement had been
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abrogated by the amendment of Code § 19.2-392.2(A)(2) to include
the reference to a dismissal “by accord and satisfaction
pursuant to § 19.2-151.” Id. at 554-55, 499 S.E.2d at 278
(internal quotation marks omitted). The trial court granted the
petition for expungement, finding that Jackson’s plea of nolo
contendere distinguished the case from Gregg. On appeal by the
Commonwealth, we reversed the judgment of the trial court.
While recognizing that a plea of nolo contendere is not an
admission of guilt, we noted that neither is it “a declaration
of innocence equivalent to a plea of not guilty.” Id. at 555,
499 S.E.2d at 278. Moreover, we also noted that the trial court
actually “determined that the evidence was sufficient to prove
Jackson’s guilt of the offense and then ‘deferred’ judgment.”
Id. Because Jackson agreed to abide by the terms set by the
trial court, we held that she was “precluded from maintaining
her innocence in the expungement proceeding because, as in
Gregg, the record that would be expunged affirmatively
establishes her guilt of the offense.” Id. at 555-56, 499
S.E.2d at 278.
We also rejected Jackson’s contention that the inclusion of
language in Code § 19.2-392.2(A)(2) in an amendment enacted
after Gregg permitting an expungement of a charge resolved by
accord and satisfaction pursuant to Code § 19.2-151 called into
question the continued viability of Gregg. We reasoned that a
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dismissal upon an accord and satisfaction “takes place without a
determination of guilt just as in the case of a nolle prosequi
or other procedural dismissal. Accordingly . . . the dismissal
occurs without any determination of guilt or imposition of
penalty by judicial authority.” Id. at 557, 499 S.E.2d at 279.
Except that Daniel entered a plea of not guilty, rather
than nolo contendere, the facts of the present case are
virtually indistinguishable from those in Jackson. Just as in
Jackson, the trial court made an express finding that the
evidence was sufficient for a finding of Daniel’s guilt for the
offense charged. Although neither Jackson nor Daniel admitted
guilt, each agreed to accept and abide by the terms of probation
imposed upon them while the trial court deferred entering a
judgment of guilty. “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.” Id. (emphasis added).
We also do not agree with Daniel that where the terms
imposed during a period of probation include making restitution
to the victim, a dismissal following the period of probation “is
indistinguishable” from a dismissal by an accord and
satisfaction pursuant to Code § 19.2-151. As we noted in
Jackson, a dismissal of an assault charge following an accord
and satisfaction occurs without any judicial determination of
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guilt. Id. Moreover, other than requiring the defendant to pay
“cost accrued by the Commonwealth or any of its officers,” such
dismissal may not include any additional terms, such as
requiring the defendant to perform community service or to be on
good behavior for a period of probation. Code § 19.2-151.
For these reasons, we hold that the trial court did not err
in concluding that the assault and battery charge against Daniel
was not “otherwise dismissed” as contemplated by Code
§ 19.2-392.2(A)(2). Accordingly, we further hold that the trial
court properly denied Daniel’s petition for expungement on that
ground.
Although this holding resolves this particular case, we
take this opportunity to address Daniel’s further contention
that the trial court should have conducted an evidentiary
hearing on his petition for expungement to determine whether
Daniel was actually innocent of the assault and battery charge.
We do so in order to provide guidance to the courts and the bar
and to avoid unnecessary future appeals. We begin by
emphasizing that the threshold determination to be made by the
trial court on considering any petition for expungement of the
police and court records relating to a criminal charge is
whether the petitioner has a right to seek expungement of those
records under an applicable provision of Code § 19.2-392.2(A).
See Jackson, 255 Va. at 556 n.2, 499 S.E.2d at 278 n.2.
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To make such a determination, the trial court must
necessarily review the records of the petitioner’s arrest and
trial, which are to be included with the petition if at all
possible. Code § 19.2-392.2(C). Where those records show that
the charge the petitioner seeks to have expunged was not the
subject of an acquittal, nolle prosequi, or absolute pardon, the
trial court is limited by the stated basis for the dismissal in
determining whether the case falls within the range of cases
“otherwise dismissed” within the meaning of subsection (A)(2) of
the statute.
Upon determining that the petitioner has the right to seek
expungement, the purpose of the hearing called for by Code
§ 19.2-392.2(F), as the statute clearly contemplates, is to
afford the trial court the opportunity to review the petition
and supporting materials to determine whether “the continued
existence and possible dissemination of information relating to
the arrest of the petitioner causes or may cause circumstances
which constitute a manifest injustice to the petitioner” and to
provide the Commonwealth the opportunity to oppose the petition,
if it so desires. See also Code § 19.2-392.2(D) and (G)
(requiring that the petition for expungement be served on the
Commonwealth’s Attorney and that the Commonwealth be made a
party to any expungement proceeding). This statutory scheme
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does not contemplate a hearing to permit the petitioner to
assert his innocence of the original criminal charge.
CONCLUSION
For these reasons, we will affirm the judgment of the trial
court denying Daniel’s petition for expungement.
Affirmed.
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