Forness v. Commonwealth
| Decision Date | 19 January 2023 |
| Docket Number | 210893 |
| Parties | NOLAN MARCUS FORNESS, II v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Supreme Court |
Nolan Marcus Forness, II ("Forness") appeals the decision of the Circuit Court of Arlington County denying his petition for expungement.
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]
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.
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).
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.
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]
For the foregoing reasons, we will affirm the judgment of the circuit court.
Affirmed.
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?
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] 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,...
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