Daniel v. Com., Record No. 040116.

• Citation: 604 S.E.2d 444,268 Va. 523
• Decision Date: 05 November 2004
• Docket Number: Record No. 040116.
• Parties: Joseph Tilghman DANIEL v. COMMONWEALTH OF VIRGINIA.
• Court: Supreme Court of Virginia

604 S.E.2d 444

268 Va. 523

Joseph Tilghman DANIEL v. COMMONWEALTH OF VIRGINIA.

Record No. 040116.

Supreme Court of Virginia.

November 5, 2004.

Larry A. Pochucha (Bowen, Champlin, Carr & Rockecharlie, on brief), Richmond, for appellant.

Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, LEMONS, and AGEE, JJ.

Opinion by Justice LAWRENCE L. KOONTZ, Jr.

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 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 court¹ 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 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 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 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 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...