Dressner v. Commonwealth

• Decision Date: 10 January 2013
• Docket Number: Record No. 120496.
• Citation: 736 S.E.2d 735,285 Va. 1
• Parties: Alison Anne DRESSNER v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

285 Va. 1

736 S.E.2d 735

Alison Anne DRESSNER

v.COMMONWEALTH of Virginia.

Record No. 120496.

Supreme Court of Virginia.

Jan. 10, 2013.

Patrick M. Blanch, Edlers, Zinicola & Blanch, on brief, for appellant.

Charles A. Quagliato, Asst. Atty. Gen., Kenneth T. Cuccinelli, II, Atty. Gen., on brief, for appellee.

Present: All the Justices.

Opinion by Chief Justice CYNTHIA D. KINSER.

In this appeal challenging a denial of expungement of police and court records, we conclude that a possession of marijuana charge, amended to a reckless driving charge, was “otherwise dismissed” as contemplated by Code § 19.2–392.2(A)(2). Therefore, we will reverse the circuit court's judgment denying the requested expungement.

RELEVANT FACTS AND PROCEEDINGS ¹

Alison Anne Dressner was issued a summons for possession of marijuana in violation of Code § 18.2–250.1. Prior to a hearing in the General District Court of Fairfax County, the Commonwealth amended the charge to reckless driving in violation of Code § 46.2–852. The amendment was noted on the face of the original summons. Dressner was then arraigned on the amended charge of reckless driving, entered a guilty plea to that charge, and was found guilty. Pursuant to a plea agreement, the general district court imposed a fine of $200.

Subsequently, Dressner filed a “Petition for Expungement of Police and Court Records” in the Circuit Court of Fairfax County. At a hearing on the petition, the circuit court found that Dressner suffered a loss of employment because an employer's background check revealed the possession of marijuana charge. Thus, the court concluded Dressner established that the continuing existence of information about the possession of marijuana charge would constitute a “manifest injustice” under Code § 19.2–392.2(F). The only issue remaining in dispute, according to the court, was whether Dressner was “acquitted” of the possession of marijuana charge, or whether the charge was “otherwise dismissed” pursuant to Code § 19.2–392.2(A)(1) and (2), respectively.

After hearing argument by the parties, the circuit court denied the petition for expungement of the police and court records pertaining to the possession of marijuana charge. The court concluded that because the original summons was amended, “expunging the [p]ossession of [m]arijuana charge would also expunge the record supporting the [r]eckless [d]riving conviction” and thereby “distort [Dressner's] record in a manner deemed impermissible ... in Necaise v. Commonwealth, 281 Va. 666, 669 (2011).”

We awarded Dressner this appeal. Dressner asserts that the circuit court erred by holding (1) that the possession of marijuana charge was not “otherwise dismissed;” (2) that expungement of the possession of marijuana charge would distort the record; and (3) that Dressner was not eligible for expungement because she pled guilty to an amended charge even though the amended charge was not a lesser-included offense of the offense originally charged on the summons.

ANALYSIS

The expungement statute, Code § 19.2–392.2, provides, in relevant part, that a person charged with the commission of a crime “may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge” if the person was “acquitted, or [a] nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2–151.” Code § 19.2–392.2(A). The “threshold determination to be made by the trial court on considering any petition for expungement ... is whether the petitioner has a right to seek expungement of those records under an applicable provision of Code § 19.2–392.2(A).” Daniel v. Commonwealth, 268 Va. 523, 530, 604 S.E.2d 444, 448 (2004). The dispositive question in this appeal is whether the possession of marijuana charge was “otherwise dismissed” pursuant to Code § 19.2–392.2(A). That issue is a question of law that this Court reviews de novo. See Commonwealth v. Morris, 281 Va. 70, 76, 705 S.E.2d 503, 505 (2011).

The Commonwealth argues that the possession of marijuana charge was not “otherwise dismissed” within the meaning of the expungement statute because that charge, as subsequently amended, resulted in a conviction. The Commonwealth further asserts that expungement of the records pertaining to the possession of marijuana charge would distort the record and events resulting in the reckless driving charge and conviction. Citing Brown v. Commonwealth, 278 Va. 92, 677 S.E.2d 220 (2009), Dressner, however, argues that the possession of marijuana charge was “otherwise dismissed” because she occupies the status of one who is innocent of that particular charge. Dressner points out that she never entered any plea to the possession of marijuana charge, that she was not found guilty of the charge, that the general district court did not make a finding that the evidence was sufficient to support a conviction for possession of marijuana, and that no terms were imposed on her in exchange for having the charge amended to reckless driving. According to Dressner, the possession of marijuana charge was “otherwise dismissed by legal operation [of] the Commonwealth's amendment of the charge to [r]eckless [d]riving.”

Contrary to the circuit court's holding and the Commonwealth's assertions, our decision in Necaise is not dispositive in this case. There, the petitioner, who had pled guilty to two misdemeanor charges that were lesser-included offenses of the two original felony charges, sought expungement of the records regarding the felony charges. 281 Va. at 668, 708 S.E.2d at 865. This Court affirmed the trial court's judgment refusing to expunge those charges. Id. at 670, 708 S.E.2d at 866. Our decision rested on the fact that “[b]ecause the misdemeanors of which Necaise was convicted were lesser included offenses of the felonies with which he was charged, all of the elements of the offenses of which he was convicted were subsumed within the felony charges and they form[ed] the sole bases for the convictions.” Id. at 669, 708 S.E.2d at 866. Therefore, we held that “Necaise, having been found guilty of offenses charged within the warrants upon which he was arrested, was not an ‘innocent citizen’ entitled to the benefit of the expungement statutes.” Id. at 670, 708 S.E.2d at 866.

The possession of marijuana charge in the instant case, however, was amended to the completely separate and unrelated charge of reckless driving in violation of Code § 46.2–852. Reckless driving is not a lesser-included offense of possession of marijuana. CompareCode § 46.2–852, withCode § 18.2–250.1. In other words, “the elements of the offense[ ] of which [Dressner] was convicted” were not “subsumed within the [possession of marijuana charge]” and did not “form the sole bas[i]s for the conviction[ ].” Necaise, 281 Va. at 669, 708 S.E.2d at 866. Thus, the possession of marijuana charge was necessarily “otherwise dismissed” within the intendment of Code § 19.2–392.2(A)(2). Indeed, the Commonwealth can point to no other disposition.

Furthermore, the facts here are analogous to those in Brown, where we held that two petitioners each occupied “the status of ‘innocent’ so as to qualify under the expungement statute as a person whose charge has been ‘otherwise dismissed.’ ” 278 Va. at 102, 677 S.E.2d at 226–27 (quoting Gregg v. Commonwealth, 227 Va. 504, 507, 316 S.E.2d 741, 743 (1984)). There, neither of the petitioners entered any kind of plea to the misdemeanor charges for which they sought expungement of the records. Id. at 102, 677 S.E.2d at 225. Further, the district courts where the charges were pending made no findings that evidence was sufficient to convict, nor were the offenses ones for which a deferred disposition or first offender status was allowed. Id. As we noted, each district court took “the criminal charge under advisement while the respective petitioner ... performed certain agreed-upon tasks with the understanding that, upon doing so, the charge would be dismissed.” Id. Thus, we “liken[ed] the dismissals ... to a nolle prosequi or accord and satisfaction; each dismissal took place without a determination of guilt, without a finding of evidence sufficient to establish guilt, and without penalties or conditions imposed by judicial authority.” Id. The petitioners occupied the status of innocent and were persons whose charges had been “otherwise dismissed” under the expungement statute. Id. at 102, 677 S.E.2d at 226.

Dressner likewise never entered any plea to the possession of marijuana charge, nor did the general district court make any finding that the evidence was sufficient to establish guilt on that charge. Nothing in the record suggests that the general district court even heard any evidence with regard to the possession of marijuana charge, and the general district court did not take the matter under advisement or defer disposition. In fact, Dressner, unlike the petitioners in Brown, did not agree to perform any tasks with the understanding that the possession of marijuana charge would then be dismissed. The record reveals only that the general district court imposed a fine of $200 on the reckless driving conviction pursuant to a plea agreement. Any suggestion that the plea agreement contained other terms that would be relevant to the question of expungement now before us is pure speculation. Thus, as in Brown, Dressner occupies the “status of ‘innocent’ [as to the possession of marijuana charge] so as to qualify under the expungement statute as a person whose charge has been ‘otherwise dismissed.’ ” Id. (quoting Gregg, 227 Va. at 507, 316 S.E.2d at 743).

The circuit court's sole basis for refusing to expunge the records pertaining to the possession of marijuana charge was that such expungement would distort Dressner's record. While we noted that concern in Necaise, it is not a statutory basis that makes a petitioner ineligible to...