PRESENT: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 971431 JUSTICE LAWRENCE L. KOONTZ, JR.
April 17, 1998
LYNNETTE M. JACKSON
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, Judge
In this appeal, we consider whether under the specific
facts of this case a person who has entered a plea of nolo
contendere to a criminal charge is entitled to have her arrest
record subsequently expunged under Code § 19.2-392.2.
The facts are not in dispute. On January 10, 1995,
Lynnette M. Jackson entered a plea of nolo contendere to a
charge of misdemeanor concealment of merchandise, Code § 18.2-
103, in the General District Court of the City of Hampton. That
court found the evidence sufficient to convict, but refrained
from entering a judgment of guilty and imposing sentence on
condition that Jackson be on “good behavior,” pay court costs,
and not return to the store where the act of concealment
occurred for one year. One year later and upon stipulation from
the Commonwealth that Jackson had complied with these
conditions, that court dismissed the charge.
On March 25, 1997, Jackson filed a petition in the Circuit
Court of the City of Hampton seeking expungement under Code §
19.2-392.2 of the police and court records related to the
concealment charge. In the petition, Jackson alleged that she
“was innocent of any and all charges.”
The Commonwealth did not file an answer, but appeared at
the hearing on the petition, opposing it on the ground that
Jackson was not “innocent” as contemplated in the statement of
policy governing expungement contained in Code § 19.2-392.1.
The Commonwealth asserted that the general district court’s
determination that the evidence was sufficient to convict her
precluded Jackson from asserting her innocence in the
expungement proceeding. In support of its position, the
Commonwealth relied upon Gregg v. Commonwealth, 227 Va. 504,
507, 316 S.E.2d 741, 742-43 (1984), for the proposition that
“[t]he expungement statute applies to innocent persons, not
those who are guilty.” Alternately, the Commonwealth asserted
that, under the holding in Gregg, the charge against Jackson was
not “otherwise dismissed” within the meaning of Code § 19.2-
392.2(A)(2).
In granting the petition for expungement, the circuit court
distinguished Gregg on the ground that the defendant in that
case had entered a plea of guilty to the charge subsequently
dismissed following deferral of judgment, whereas Jackson had
pled nolo contendere. The trial court’s final order directed
that the police and court records of Jackson’s arrest on the
2
concealment charge be expunged. We awarded the Commonwealth
this appeal.
On appeal, the Commonwealth reasserts the arguments it
advanced in the circuit court. In response, Jackson asserts
that the circuit court properly distinguished Gregg from her
case based upon her entry of a plea of nolo contendere rather
than a guilty plea. Moreover, she asserts that, as a result of
amendments to Code § 19.2-392.2 enacted subsequent to our
decision in Gregg, this statute no longer restricts expungement
to those dismissals involving innocent defendants.
Specifically, Jackson relies upon the 1992 amendment to Code §
19.2-392.2(A)(2) to include charges dismissed “by accord and
satisfaction pursuant to § 19.2-151” and the amendment of Code §
19.2-392.2(E) to include the provision 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.” In short, Jackson argues that these amendments modify
the applicability of Gregg and allow expungement in the case of
a person convicted of a first-offense misdemeanor and in such
cases shift the burden to the Commonwealth to show why the
records should not be expunged.
3
We first consider whether the trial court properly
distinguished Gregg on the ground that the defendant in that
case entered a plea of guilty, whereas Jackson entered a plea of
nolo contendere. Asserting that a plea of nolo contendere is
not a confession of guilt, Jackson contends that there has been
no determination of guilt in her case, and she should be
considered an “innocent person” entitled to petition for
expungement. We disagree.
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. Roach v.
Commonwealth, 157 Va. 954, 959, 162 S.E. 50, 51 (1932).
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. Honaker v. Howe,
60 Va. (19 Gratt.) 50, 53 (1869). 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. Roach, 157 Va. at
960, 162 S.E. at 52; Honaker, 60 Va. (19 Gratt.) at 53.
The difficulty with Jackson’s position is that she views
her plea of nolo contendere in isolation from the proceeding in
which it was entered. The plea was not the sole basis for the
general district court’s action. That court did not merely
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accept the plea, but further determined that the evidence was
sufficient to prove Jackson’s guilt of the offense and then
“deferred” judgment. 1 Jackson agreed to abide by the terms
imposed by the court, and the charge was dismissed upon her
satisfactory completion of those terms. In these respects, the
present case is indistinguishable from Gregg. We hold that,
based on the record of the criminal prosecution, Jackson is
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.
We must now consider Jackson’s contention that even if she
is not an “innocent person” under the rationale of Gregg, the
subsequent amendments to Code § 19.2-392.2 have altered the
further holding of that case that a dismissal following a
deferral of judgment of guilt is not a case “otherwise
dismissed.” 2 Code § 19.2-151 permits the trial court to dismiss
1
The Commonwealth did not challenge the authority of the
general district court to “defer” judgment or assert the lack of
such authority as a basis for opposing the expungement petition.
Accordingly, we express no opinion as to whether the action of
the general district court was proper. But see Code § 19.2-
303.2 (excluding larceny offenses from those eligible for
deferral).
2
Jackson concedes that she must first establish her
entitlement to petition for expungement under subsection (A)(2)
of § 19.2-392.2 before reaching the issue raised by the
amendment of subsection (E). It is apparent on the record that
Jackson could not qualify for the right to petition for
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pending criminal charges for assault and battery and other
misdemeanors for which there is a civil remedy where the injured
party acknowledges satisfaction of the civil wrong. Jackson
asserts that such cases “nearly always involve a guilty
defendant, but may nevertheless be expunged” under the 1992
amendment of Code § 19.2-392.2(A)(2). Thus, she contends that
this amendment is evidence of the legislature’s rejection of
that part of Gregg which, in effect, restricted dismissals only
to cases where the defendant was innocent. 3 We disagree.
The addition of the reference to dismissals upon accord and
satisfaction under Code § 19.2-151 is fully consistent with the
rationale expressed in Gregg distinguishing dismissals following
deferral of judgment from those cases “otherwise dismissed” as
contemplated by the expungement statute. Under Code § 19.2-151,
the dismissal takes place without a determination of guilt just
as in the case of a nolle prosequi or other procedural
dismissal. Accordingly, while it may be true that a defendant
expungement of this charge under any other provision of
subsection (A) or (B).
3
Jackson further notes that prosecutions are often resolved
upon a motion of nolle prosequi “for reasons other than the
innocence of the defendants.” However, the provision for
expungement of records of a criminal charge resolved upon a
motion for nolle prosequi was in place at the time of our
decision in Gregg, and, thus, has no bearing on our
determination of the effect of the subsequent amendment to the
statute on the continued viability of that decision.
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who provides redress for a civil wrong may actually have
committed the concomitant criminal offense, the dismissal occurs
without any determination of guilt or imposition of penalty by
judicial authority. Thus, a dismissal under Code § 19.2-151 is
of the same quality as those contemplated by the expungement
statute at the time Gregg was decided, and the addition of such
dismissals to the statute does not affect the continued
viability of the rationale of that case. 4
In sum, we hold that both principles of our decision in
Gregg regarding the right to seek expungement remain in force.
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.
We will reverse the judgment of the trial court directing
that the police and court records related to the charge against
Jackson be expunged, and enter final judgment for the
Commonwealth.
4
Because we conclude that Jackson was not eligible to
petition for expungement, we need not consider the effect of the
amendment to Code § 19.2-392.2(E) on the burden of proof in
expungement hearings.
7
Reversed and final judgment.
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