Forness v. Commonwealth

PRESENT: All the Justices

NOLAN MARCUS FORNESS, II
OPINION BY
v. Record No. 210893 JUSTICE CLEO E. POWELL
JANUARY 19, 2023
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Daniel S. Fiore, Judge

Nolan Marcus Forness, II (“Forness”) appeals the decision of the Circuit Court of

Arlington County denying his petition for expungement.

I. BACKGROUND

On November 21, 2019, Forness was arrested and charged with a felony violation of

Code § 18.2-266 for driving while intoxicated “after having committed a previous violation of

§ 18.2-36.1, 18.2-51.4, 18.2-51.5, or a felony violation of § 18.2-266” (“Felony DWI”). It was

subsequently determined that Forness did not have a prior felony driving while intoxicated

conviction. The arrest warrant was subsequently amended to charge Forness with a

misdemeanor violation of Code § 18.2-266 for driving while intoxicated, second offense within

ten years (“DWI Second”).

Forness was eventually found guilty of DWI Second in the general district court and

appealed his conviction to the circuit court. While his appeal to the circuit court was pending,

Forness filed a petition seeking to expunge the Felony DWI charge from his record. In his

petition, he argued that the Felony DWI charge wrongfully reflected a non-existent felony

conviction. The Commonwealth did not contest Forness’ assertion that he did not have any prior

convictions for felony driving while intoxicated. Rather, it opposed Forness’ petition on the
ground that it was premature, as his appeal of the DWI Second conviction was still pending in

the circuit court.

At a hearing on the petition, Forness proffered that he had been employed in the jewelry

industry. He stated that he had contacted other employers in the jewelry industry to inquire

whether he could be hired “if he applied with a felony showing on his record.” According to

Forness, the other employers responded that he would not be hired under those circumstances.

Forness also claimed that having the Felony DWI charge on his record would make it difficult to

hunt because he could face a felon in possession of a firearm charge if a police officer or a game

warden ran a background check on him and saw the Felony DWI charge. After considering the

matter, the trial court denied the petition, explaining that Forness had not shown he would suffer

a manifest injustice because his argument was speculative about what a future employer might

do. It further ruled that, “as a matter of law, the petition fails based on the record.”1

II. ANALYSIS

On appeal, Forness argues that the circuit court erred in denying his expungement

petition because his arrest record is indisputably inaccurate. According to Forness, the

Commonwealth’s decision to amend the arrest warrant operates as a dismissal of the Felony

DWI charge, thereby permitting expungement under the statute. He further claims that the

inclusion of the Felony DWI language on his record results in a manifest injustice, as it implies

not only that he was charged with a felony, but also that he had been previously convicted of a

felony. In support of this claim, he points specifically to the “with a prior felony driving while

intoxicated conviction” language in the charge.

1
During the pendency of the present appeal, a jury found Forness guilty of DWI Second
offense.

2
 When considering a petition for expungement, the threshold determination “is whether

the petitioner has a right to seek expungement . . . under an applicable provision of Code § 19.2-

392(A).” Daniel v. Commonwealth, 268 Va. 523, 530 (2004). By its plain language, Code

§ 19.2-392.2(A) permits expungement only when a person “[i]s acquitted, . . . [a] nolle prosequi

is taken or the charge is otherwise dismissed.” Here, it is undisputed that Forness was not

acquitted of the DWI after a prior felony conviction charge, nor was a nolle prosequi taken.

Thus, the question before the Court is whether amending the Felony DWI charge to DWI Second

equated to the Felony DWI charge being “otherwise dismissed.” As this question is one of law,

we apply a de novo standard of review. Dressner v. Commonwealth, 285 Va. 1, 5 (2013).

In Necaise v. Commonwealth, 281 Va. 666, 669 (2011), we explained that a charge is not

“otherwise dismissed” when, for example, it is reduced to a lesser included offense. A crime is a

lesser included offense of another crime when all of the elements of the lesser crime are

subsumed by the greater crime. Id. Conversely, a charge is “otherwise dismissed” when the

original charge is amended to a “completely separate and unrelated charge.” Dressner, 285 Va.

at 6.

Forness insists that the lack of any temporal element in the Felony DWI means that DWI

Second cannot be a lesser included offense. Forness’ argument on this point conflates the

offense with which he was charged, i.e., driving while intoxicated in violation of Code § 18.2-

266, with the punishment that may be imposed for a conviction of that offense.

Code § 18.2-266 states, in relevant part:

It shall be unlawful for any person to drive or operate any motor
vehicle . . . (i) while such person has a blood alcohol concentration
of 0.08 percent or more by weight by volume . . . . A charge
alleging a violation of this section shall support a conviction under
clauses (i), (ii), (iii), (iv), or (v).

3
 In contrast, Code § 18.2-270 enumerates the various penalties that may be imposed for

driving while intoxicated in violation of Code § 18.2-266. As established by Code § 18.2-270,

the penalty for violating Code § 18.2-266 ranges from a Class 1 misdemeanor, see Code § 18.2-

270(A), to a Class 6 felony, see Code § 18.2-270(C)(1). The severity of the penalty imposed is

dictated by the number of prior convictions for violating Code § 18.2-266 that have been

committed within a certain time period, the person’s level of intoxication and the nature of the

penalties that were previously imposed. Code § 18.2-270. 2 As every driving while intoxicated

charge implicates the same underlying offense, a violation of Code § 18.2-266, it is clear that

Felony DWI and DWI Second involve the same offense but with different sentencing

enhancements. 3 In other words, the difference between the two charges is one of degree and not

of kind.

2
For example, Code § 18.2-270(B)(1) states:
Any person convicted of a second offense committed within less
than five years after a prior offense under § 18.2-266 shall upon
conviction of the second offense be punished by a mandatory
minimum fine of $500 and by confinement in jail for not less than
one month nor more than one year. Twenty days of such
confinement shall be a mandatory minimum sentence.

(Emphasis added.)
It is further worth noting that, “[f]or the purpose of determining the number of offenses
committed by, and the punishment appropriate for, a person under this section” a conviction
under certain other statutes “shall be considered a conviction of § 18.2-266.” Code § 18.2-
270(E).
3
In Mwangi v. Commonwealth, 277 Va. 393, 395 (2009), the Court referred to prior
violations of Code § 18.2-266 as “an element of the felony offense described in Code § 18.2-
270(C)(1).” We note, however, that Code § 18.2-270(C)(1) does not describe a “felony offense;”
rather, it establishes the penalty for individuals “convicted of three offenses of § 18.2-266
committed within a 10-year period.” See, e.g., Commonwealth v. Leonard, 294 Va. 233, 241
(2017) (describing convictions for violations of Code § 18.2-266 as “predicate offense[s] under
the penalty provisions of Code § 18.2-270(C)(1).”). To the extent that the sentencing
enhancements under Code § 18.2-270 are considered to be part of the underlying offense, we
have already recognized that a misdemeanor driving while intoxicated charge is a lesser included
offense of a felony driving while intoxicated charge. See Mwangi, 277 Va. at 395 (remanding

4
 In the present case, the amendment to the arrest warrant related only to the sentencing

enhancement sought to be imposed, not the underlying offense. Indeed, it cannot be disputed

that the only offense that Forness was ever charged with was a violation of Code § 18.2-266.

Given that the actual offense that Forness was charged with remained the same, it simply cannot

be said that the amendment resulted in a completely separate and unrelated charge. Accordingly,

the amendment did not render the Felony DWI charge “otherwise dismissed” for the purposes of

Code § 19.2-392.2. Therefore, the circuit court properly dismissed Forness’ expungement

petition.4

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment of the circuit court.

Affirmed.

Mann, J., dissenting.

It is confounding as to how this case has arrived at the Commonwealth’s court of last

resort. After all, there is no dispute that Forness was charged with the wrong crime.

How can one be charged with the felony of driving while intoxicated after having

previously been convicted of a felony driving while intoxicated charge, when there was no such

prior conviction? Once you get past that legal mouthful, the next question is why, after all this

time, does that charge remain on his criminal record?

“the case to the trial court for a new trial on the lesser-included misdemeanor [driving under the
influence] charge” when the Commonwealth failed to present sufficient evidence to support a
felony driving under the influence charge).
4
Having determined that Forness failed to satisfy the threshold determination that the
Felony DWI charge was “otherwise dismissed,” we do not reach the question of whether the
continued existence of the Felony DWI on Forness’ record amounts to a manifest injustice.

5
 Forness was completely innocent of the charge for which he was arrested, as there is no

question that he has never been convicted of felony DWI. Now he must shoulder the burden of

explaining away this charge on his permanent criminal record to potential employers or law

enforcement because we do not grant him the relief he requests.

Because both parties below admit that Forness could not have been convicted of the

crime with which he was charged, and the lesser included offense analysis applied by the

majority defeats the plain meaning of the expungement statute, I respectfully dissent. Simply,

we should not allow what amounts to a bureaucratic paperwork error at the outset of this matter

to damage a man who already bears the weight of his other criminal offenses.

One’s criminal record, in our society, can be determinative of one’s livelihood, one’s

future, and even one’s freedom to exercise constitutional rights.1 It stands as a warning to

potential employers, social service agencies and other entities requiring background

investigations as a condition of employment. The accuracy of one’s record, just like one’s

reputation, should be subject to significant scrutiny. The carelessly charged offense now will

remain on his record despite its alarming consequences. 2

1
It is an undeniable fact that this is not Forness’ first conviction for driving while
intoxicated. However, the prior record is of no moment to this analysis. If the government takes
on the obligation of faithful reporting of crimes which ultimately informs subsequent charging
decisions, accuracy must be paramount.
2
There is no question that the felony offense was placed on Forness’ criminal record.
This occurs by operation of law. Code § 19.2-390 requires that the arrest be entered into both the
Virginia Criminal Information Network (“VCIN”) and the National Crime Information Center
(“NCIC”). VCIN is maintained by the Department of the State Police and NCIC is the
responsibility of the Federal Bureau of Investigation.
Under any circumstances this appears to be a non-issue, as the presence of the wrong
charge on Forness’ criminal record was never disputed by the Commonwealth’s Attorney in its
Answer below, by the Commonwealth’s Attorney in its Brief in Opposition, by the Attorney
General in the Amicus filing, or by the trial court in its order.

6
 Although the majority opinion states the facts, the following should be emphasized:

Forness was arrested and charged with felony driving while intoxicated (“DWI”) after having

been previously convicted of a felony DWI charge. Following Forness’ arrest, the Arlington

County Deputy Commonwealth’s Attorney contacted Forness’ attorney, and confessed that he

could not “track down a prior [f]elony conviction” and that he would need to set the case for a

misdemeanor trial instead of a preliminary hearing on a felony. 3

In March 2020, the Arlington County General District Court amended the charge to

misdemeanor DWI, second offense within ten years, over Forness’ objection. 4 In July 2020,

Forness was convicted in the district court of misdemeanor DWI, second within ten years.

Forness then noted his appeal to the Arlington County Circuit Court. In September 2021,

Forness was convicted in the circuit court of misdemeanor DWI, second offense within ten years.

Forness petitioned to expunge the charged felony DWI, prior felony conviction.

While Virginia’s expungement statute does not mandate expungement generally, because

Forness’ original felony charge was “otherwise dismissed” under the plain meaning of Code

§ 19.2-392.2 and a nonexistent felony conviction based upon a charging error constitutes a

manifest injustice, I would reverse the judgment of the circuit court.

3
In its Brief in Opposition, the Arlington County Commonwealth’s Attorney conceded
that “the warrant had been incorrectly issued as a felony” and as a result the Commonwealth
“moved to amend the charge of felony driving while intoxicated after having been previously
convicted of a felony driving while intoxicated charge to the appropriate charge of driving while
intoxicated; second offense within ten years; with a BAC greater than .15 but less than .20.” (Br.
in Opp. 3).
4
Forness objected to the amendment by the Commonwealth, presumably because it
would have been a legal impossibility for the Commonwealth to win a conviction for felony
DWI as originally charged. See Mwangi v. Commonwealth, 277 Va. 393, 395 (2009).

7
 The expungement analysis provided in Code § 19.2-392.2 consists of a two-step process:

(1) Whether the petitioner can seek expungement under the statute, and (2) whether the record

qualifies as a manifest injustice. See Dressner v. Commonwealth, 285 Va. 1, 5-8 (2013); Brown

v. Commonwealth, 278 Va. 92, 102-03 (2009). Because I conclude that Forness was entitled to

seek an expungement under the statute, I also address the manifest injustice statutory element.

I. Standard of Review

Whether a petitioner is eligible to seek expungement of a record under Code

§ 19.2-392.2(A) is “a question of law that this Court reviews de novo.” Dressner, 285 Va. at 5.

However, this Court “review[s] a trial court’s decision to grant or deny expungement under Code

§ 19.2-392.2(F) under an abuse of discretion standard.” A.R.A. v. Commonwealth, 295 Va. 153,

160 (2018). That discretion “is restricted by the forgiving standard that the statute sets forth.”

Id. “The statute provides that the petition should be granted if the petitioner, who bears the

burden of proof, can establish that ‘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.’” Id. (quoting Code § 19.2-392.2(F)).

II. Forness’ Eligibility to Petition for Expungement

To begin the first prong of the expungement analysis, this Court must ascertain the nature

of the charge Forness was seeking to expunge. Then, the Court must determine whether it is

eligible for expungement.

A. The charged offense

Virginia’s expungement statute, in pertinent part, specifically permits a person “charged

with the commission of a crime, a civil offense, or any offense defined in Title 18.2” to petition

for “expungement of the police records and the court records relating to the charge” if the person

8
is “acquitted, or . . . [a] nolle prosequi is taken or the charge is otherwise dismissed.” Code

§ 19.2-392.2(A) (emphases added). When analyzing whether a petitioner is eligible for

expungement, this Court begins with a focus upon the charges for which expungement is sought.

See, e.g., A.R.A., 295 Va. at 158 (felony assault and battery); Dressner, 285 Va. at 4 (possession

of marijuana); Necaise v. Commonwealth, 281 Va. 666, 667-68 (2011) (felony disregard of a

police officer’s signal to stop, felony assault of a police officer engaged in public duties).

Forness maintains that he was charged with “the felony of [d]riving [w]hile [i]ntoxicated

after having been previously convicted of a felony DWI.” (Opening Br. 1). The

Commonwealth’s Attorney also maintained that Forness had been “charged with the felony of

driving while intoxicated after having previously been convicted of a felony driving while

intoxicated charge.” (Br. in Opp. 2). However, the Attorney General of Virginia disagreed, 5

conjuring the argument that the police “charged Forness with DWI under section 18.2-266” and

“listed Forness’[] violation as a Class 6 felony per the enhancements to section 18.2-266.” (Br.

Amicus Curiae 5).

The Attorney General’s argument is based on the accurate proposition that the underlying

offense of felony DWI after having been previously convicted of a felony DWI charge is a

violation of Code § 18.2-266. This Court has held that Code § 18.2-270 provides enhanced

penalties for that underlying offense. Williams v. Commonwealth, 265 Va. 268, 271 (2003).

That much is obvious.

5
The Arlington County Commonwealth’s Attorney filed a brief in opposition but did not
participate in these proceedings once this Court granted Forness’ petition for appeal. As a result,
this Court requested that the Attorney General of Virginia file a brief amicus curiae pursuant to
Rule 5:30(f).

9
 That proposition in the context of this expungement case, however, is inapposite. The

underlying offense of a charge and the charge faced by the accused are different things. The

difference is subtle, but crucial.

This Court’s decision in Mwangi, 277 Va. at 395, illustrates the distinction. There, the

defendant was convicted “of driving under the influence (DUI), in violation of Code § 18.2-

266.” 6 Id. at 394. “Mwangi, found to have been convicted of DUI twice before within a

five-year period, was sentenced, in accordance with Code § 18.2-270(C)(1), to two years in

prison with all but six months suspended.” Id. At the same time, this Court recognized that

“[t]he Commonwealth has the burden of proving all elements of a crime, including prior

convictions, beyond a reasonable doubt.” Id. at 395. We concluded that the circuit court did not

have evidence “sufficient to prove the prior DUI conviction . . . which is an element of the felony

offense described in Code § 18.2-270(C)(1).” Id. This Court then vacated the conviction and

remanded the case for a new trial on the lesser included offense of DWI – not only for a new

sentencing. 7 Id. We recognized that the underlying offense was a violation of Code § 18.2-266,

while the initial arrest was based upon a felony charge. Relatedly, a first offense violation of

Code § 18.2-266 is a misdemeanor, while a prior felony conviction is required for a felony

conviction under Code § 18.2-270. Code § 18.2-270.

This conclusion is confirmed by the record in this case. The warrant of arrest was titled

“WARRANT OF ARREST – FELONY.” (R. 3). The charging language, prior to amendment in

the district court, incorrectly stated that Forness “did unlawfully and feloniously in violation of

6
The underlying offense discussed as “DUI” in Mwangi is the same as that discussed
herein as “DWI.”
7
Notably, the Court did not remand for a trial on the charge of DWI second within 10
years (Forness’ eventual conviction here), but on simple DWI.

10
Section 18.2-266 . . . drive or operate a motor vehicle while having a blood alcohol concentration

of 0.08 percent or more by weight” and did so “after having committed one prior violation of

§ 18.2-266 or an offense set forth in subsection E of § 18.2-270 during a period of five to ten

years from the date of the current offense and after having committed a previous violation of

§ 18.2-36.1, 18.2-36.2, 18.2-51.4, 18.2-51.5, or a felony violation of § 18.2-266.” (R. 3)

(Emphasis added). Before the amendment, the warrant reflected a Class 6 felony charge.

Further, while the “Short Offense Description” is not a legal definition, it listed the offense as

“DWI: PREV FEL; 2ND DWI W/IN 5Y-10Y.” The warrant indicates that Forness was

improperly charged with felony DWI; a charge of violating Code § 18.2-266 would be a

misdemeanor. See Code § 18.2-270(A), (C)(2).

Forness was charged with felony DWI after having been previously convicted of a felony

DWI conviction. As in Mwangi, the charge arose from a felony violation under Code

§§ 18.2-266 and 18.2-270. Having clarified the nature of the charge at issue, I turn next to

whether that charge was eligible for expungement.

B. Eligibility of the charge

The Petition requested expungement of a charge of felony DWI, prior felony DWI

conviction. This charge results from the “commission of a crime, a civil offense, or any offense

defined in Title 18.2,” specifically, Code §§ 18.2-266 and 18.2-270. Code § 19.2-392.2(A).

Forness was not acquitted of that charge, nor was the charge nolle prossed. Instead, the charge

was amended to misdemeanor DWI, second within ten years, over Forness’ objection. Thus, the

11
issue is whether the original charge qualifies as “otherwise dismissed” under Code

§ 19.2-392.2(A).8

This Court has previously recognized that Virginia’s expungement statute exists to

“avoid injustice to an ‘innocent citizen’ falsely accused and unjustly convicted.” Necaise, 281

Va. at 669. The Court has looked to a lesser included offense analysis, set forth in Blockburger

v. United States, 284 U.S. 299 (1932), to determine whether an individual is an “innocent

citizen” for purposes of expungement. A.R.A., 295 Va. at 159.

Importantly, this Court has not been confronted with an expungement case where the

record to be expunged was the result of the Commonwealth conceding a charging error. Central

to the analysis is the fact that the wrongly charged offense remains on Forness’ criminal record.

This Court first interpreted the phrase “otherwise dismissed” in cases where the defendant

pleaded guilty or no contest but the charge was later dismissed, holding that those original

charges were not eligible for expungement. See Commonwealth v. Jackson, 255 Va. 552, 554

(1998) (Jackson pleaded no contest to the original charge); Gregg v. Commonwealth, 227 Va.

504, 505 (1984) (Gregg pleaded guilty as a first offender). We have also applied this analysis in

cases where the original charge was dismissed as the result of a negotiated plea agreement. See

A.R.A., 295 Va. at 166 (Kelsey, J., dissenting) (A.R.A.’s original felony charge was nolle prossed

pursuant to a plea agreement); Dressner, 285 Va. at 4 (Dressner’s original charge was amended

pursuant to a plea agreement); Dressner, 285 Va. at 11 (Powell, J., dissenting) (citing Necaise v.

Commonwealth, 281 Va. at 668) (Necaise’s original charge was amended pursuant to a plea

8
The underlying charge should have been treated as a nullity and, therefore, no
amendment would have been possible. The Commonwealth’s better course would have been to
nolle prosse the felony charge and bring the correct charge to make sure the process in this case
was scrupulous and uncontaminated. The amendment sought to unring a broken bell. The
Commonwealth could have – and should have – started with a clean slate.

12
agreement). This Court has also analyzed expungements in the context of conditional dismissals.

See Brown, 278 Va. at 95-96; Commonwealth v. Dotson, 276 Va. 278, 284 (2008) (Dotson’s

charge dismissed pursuant to Code § 18.2-251); Daniel v. Commonwealth, 268 Va. 523, 525

(2004) (Daniel’s charge dismissed pursuant to an agreed finding of facts sufficient, deferred

disposition). None of these cases addresses the circumstance where the charge was erroneously

brought.

The majority relies primarily on Necaise, and the lesser included offense analysis, to

conclude that Forness was not an innocent citizen. I disagree with this conclusion for three

reasons.

First, Code § 19.2-392.2(A) refers to charges, not offenses. When analyzing the plain

language of a statute, “[w]e must presume that the General Assembly chose, with care, the words

that appear in a statute, and must apply the statute in a manner faithful to that choice.” Johnson

v. Commonwealth, 292 Va. 738, 742 (2016). If the General Assembly wanted to constrain the

expungement statute to underlying offenses, and not charges, it would have referred to

expungement of the offense; it did not.

Second, the majority’s reasoning here confounds the actual rationale from Necaise.

There, this Court reasoned that “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.”

Necaise, 281 Va. at 669. The majority’s analysis here does not address the Court’s statement

from Mwangi that “[t]he Commonwealth has the burden of proving all elements of a crime,

including prior convictions, beyond a reasonable doubt.” 277 Va. at 395 (emphasis added).

Forness’ prior misdemeanor conviction could not have been subsumed in the felony because it is

a separate element of the crime of DWI, second within 10 years that is not included in the felony

13
charge. Yet, under the majority’s analysis, a misdemeanor within 10 years is equivalent to a

felony, and Forness’ prior misdemeanor DWI was not actually an element of the crime for which

he was eventually convicted. The majority’s line of reasoning implies that a DWI is a DWI, no

matter the aggravating facts. If that were the case, Code § 18.2-270 would not exist, the

Commonwealth would never have amended Forness’ original charge, and this appeal would

likely not be before us. After all, why would the Commonwealth need to amend the charge if

Forness’ prior offense was not an element of the crime? Under the majority’s analysis, it could

simply address the issue during the sentencing phase.

Moreover, in Necaise, this Court stated that “[e]xpungement 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.” 281 Va. at 669. Here, in complete

contrast, all the parties agree that the original charges were errantly imposed, and that the record

does not actually contain a true account of Forness’ record.

Third, I disagree with this Court’s reasoning because it twists the meaning of “innocent

person” as intended by the legislature. The majority maintains that Forness is not an innocent

person and relies on Necaise to conclude that Forness is ineligible to petition for expungement.

This interpretation of “innocent” implies that a defendant is not innocent of a charge if

that defendant is convicted of another related crime. Yet, because a misdemeanor is not the same

as a felony charge, and the parties agreed that Forness could not be convicted of the original

charge, I would conclude that Forness was innocent of that charge for purposes of expungement.

After all, if the Commonwealth had nolle prossed the felony charge, and rearrested Forness on

the correct charge of DWI second within 10 years, Forness would be considered innocent of the

14
original charge and the original charge would have been eligible for expungement. Code

§ 19.2-392.2(A)(2). If Forness had been acquitted of felony DWI, Forness would be considered

innocent of the original charge, and the charge would be eligible for expungement. Code

§ 19.2-392.2(A)(1). And if Forness had been found to be actually innocent of felony DWI, he

would be innocent of the original charge, and would have been entitled to an order of

expungement. Code § 19.2-327.5. Yet, under the majority’s analysis, the meaning of innocent is

different for “otherwise dismissed” than for nolle prosequi, acquittal, and actual innocence.

Therefore, because the Commonwealth conceded that the original charge was made

without a proper foundation, this Court does not need to undertake a lesser included offense

analysis and, even under Necaise, Forness should be eligible to petition for expungement.

III. Manifest Injustice

Forness’ felony charge, predicated on a fictional previous felony, constitutes a manifest

injustice under this Court’s precedent. This much is conceded by the Commonwealth Attorney

in the brief in opposition to Forness’ petition for appeal.

In determining whether a manifest injustice occurred, this Court employs a

“forward-looking” analysis. A.R.A., 295 Va. at 160. 9 The existence of a fictional felony alone is

sufficient to demonstrate a manifest injustice under this framework. A felony conviction carries

with it certain civil disabilities and is by definition a statement that the convicted person

9
While I would apply the “forward-looking” test used by this Court in A.R.A., I also
acknowledge that the analytical framework provided by the dissent in that case would likely
reach the same result: even if the Commonwealth were “allowed to show how and why the
petitioner was arrested and to show the probable-cause basis for the arrest” it would be unable to
show such a basis. A.R.A., 295 Va. at 170 (Kelsey, J., dissenting). As that dissent stated, this
Court should not disregard the facts surrounding the defendant’s initial charge – to do so would
be “methodically ignorant of what everybody knows.” Id. at 168 (quoting John F. Dillon, The
Laws and Jurisprudence of England and America (1894) (internal quotation marks omitted)).

15
committed a more serious offense. See Va. Const. art. II, § 1 (disqualification from voting based

on conviction of a felony); see also, Black’s Law Dictionary 762 (11th ed. 2019) (“A serious

crime usu[][ally] punishable by imprisonment for more than one year or by death.”).

Furthermore, the specific harm caused by a fictitious felony charge and felony conviction on

one’s record is not hypothetical or speculative. The continued dissemination of false information

indicating that Forness is a convicted felon is likely to cause him adverse effects in employment

and society at large, as is explicitly recognized by Code § 19.2-392.1.

Forness was never convicted of a prior DWI felony. He was charged with a felony based

on a prior nonexistent felony, and when the error was recognized, he was charged with a

misdemeanor, by amendment. The record would not be distorted by expunging the felony

charge, because the felony charge itself was an error.

Importantly, the Virginia Administrative Code sets forth the procedure for correcting part

of a record:

If the information to be expunged is included among other information that has not been
expunged on the same form or piece of paper, the expunged information shall be
obliterated on the original or the original shall be retyped eliminating the expunged
information.

Virginia Department of Criminal Justice Services, Regulations Relating to Criminal History

Record Information Use and Security, 6 VAC § 20-120-80(C)(2). Additionally,

If the expunged information is located on a criminal history record provided by the
Central Criminal Records Exchange (i.e., “RAP sheet”), the criminal history record
information shall be destroyed, and a new copy, not containing the expunged data, shall
be obtained when necessary.

Id. at (C)(3). Forness’ record would maintain the portions related to his misdemeanor

conviction, while expunging the felony charge the Commonwealth agreed was an error. Thus,

because there is a procedure to expunge part of a record and maintain the remainder after

16
expungement, I cannot identify a reason to maintain a felony charge that both parties concede

was made in error.

Therefore, under the particular and unique facts of this case, I conclude that Forness’

felony charge was eligible for expungement under Code § 19.2-392.2, and that the continued

existence of the charge, based on an imaginary felony conviction, constitutes a manifest

injustice. To affirm the circuit court’s judgment applies a judicially created test in a new context

and would defeat the plain language and stated intent of the expungement statute. Our precedent

should foreclose such a result. See, e.g., Manu v. GEICO Casualty Co., 293 Va. 371, 389 (2017)

(observing that “every statute is to be read so as to promote the ability of the enactment to

remedy the mischief at which it is directed”) (alteration omitted) (quoting Board of Supervisors

v. King Land Corp., 238 Va. 97, 103 (1989) (discussing Virginia cases recognizing and applying

the “mischief rule”)). Objecting to the mischief perpetrated upon Forness herein, I would reverse

the circuit court’s judgment and remand this case for further proceedings.

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