Williams v. Commonwealth
| Docket Number | Record No. 220034 |
| Decision Date | 20 April 2023 |
| Citation | 885 S.E.2d 457 |
| Parties | Monique Alicia WILLIAMS, Appellant, v. COMMONWEALTH of Virginia, Appellee. |
| Court | Virginia Supreme Court |
Upon consideration of the record, briefs, and argument of counsel, the Court is of opinion that the judgment of the circuit court should be reversed.
Monique Williams appeals from the denial of her expungement petition. She was arrested on one charge, accessory after the fact of homicide, and she pleaded guilty to an amended charge, obstruction of justice. She argues that the accessory after the fact of homicide charge was "otherwise dismissed" and, therefore, qualifies for expungement. For the reasons that follow, we reverse the order denying expungement and remand for further proceedings.
Williams was arrested on the charge of accessory after the fact of a homicide, in violation of Code § 18.2-19, a felony. A grand jury indicted her on that charge. Williams pleaded "not guilty" to this charge. Several months later, the prosecution amended the indictment, striking out the accessory after the fact charge and substituting in its place a new charge: obstruction of justice in violation of Code § 18.2-460, a Class 1 Misdemeanor. Williams did not object to the amendment. She pleaded guilty to the amended charge. The circuit court found her guilty and sentenced her to a suspended sentence of 12 months in jail.
Williams later filed a petition for expungement under Code § 19.2-392.2. She argued that under Dressner v. Commonwealth , 285 Va. 1, 736 S.E.2d 735 (2013), the amendment to the indictment operated as an acquittal on the charge of being an accessory after the fact to a homicide, and thus she had the right to have the records related to the initial accessory to murder charge expunged. The Commonwealth did not oppose Williams’ petition for expungement.
The circuit court, however, disagreed. In a memorandum opinion, the circuit court distinguished Williams’ case from Dressner . It observed that, in Dressner , the amended charge "share[d] absolutely nothing similar in any respect" with the original charge. The circuit court assumed without deciding that obstruction of justice was not a lesser included offense of the accessory after the fact of homicide charge. That was not the end of the inquiry, however. The circuit court explained that, in this case, the indictment itself showed that the original accessory after the fact of homicide charge and the amended obstruction of justice charge "share[d] many similarities." Relying on Necaise v. Commonwealth , 281 Va. 666, 708 S.E.2d 864 (2011), the circuit court reasoned that "[a]mending an indictment from accessory to a charge of the same ‘nature or character’ — obstruction of justice — does not render [Williams] an ‘innocent citizen’ ‘falsely accused.’ " The circuit court concluded that "[o]bstruction of justice and accessory after the fact are not completely different or separate or unrelated charges by operation of statute and interpretation of precedent." The circuit court added a footnote explaining that Williams’ role in the events surrounding the murder are explained in the record of Commonwealth v. Jason Allen Johnson , No. CR18000379-00 (Arlington Cnty. Cir. Ct. July 31, 2018), which was attached as an exhibit to its memorandum opinion.
Virginia law permits the expungement of criminal records in certain circumstances. "[T]he 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 (2004). The expungement statute specifies that a person may ask for expungement when the petitioner has been 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)(2).
Williams contends that the circuit court employed an incorrect standard in adjudicating her petition for expungement. According to Williams, expungement of a charge that has been amended 1 We disagree.
The terms acquittal and nolle prosequi, or nolle prosse, are readily understood. The meaning of the phrase "otherwise dismissed" is not as clear. A criminal case may be dismissed for a variety of reasons. See, e.g. , Code § 19.2-8 (); Code § 19.2-294 (statutory double jeopardy); Groffel v. Commonwealth , 70 Va. App. 681, 687, 831 S.E.2d 503 (2019) (constitutional double jeopardy), aff'd , 299 Va. 271, 849 S.E.2d 905 (2020). We have construed the phrase "otherwise dismissed" more broadly, however, to encompass more than a literal dismissal.
Whether a charge has been "otherwise dismissed" is a question of law that we review de novo. Dressner , 285 Va. at 5, 736 S.E.2d 735. In construing the expungement statute, we have considered the purpose of the statute, which is to allow "innocent citizens" to avoid the consequences that flow from the existence of arrest records. Code § 19.2-392.1.
Where a petitioner is convicted of a lesser included offense of the original charge, the original charge does not qualify for expungement. Necaise , 281 Va. at 669-70, 708 S.E.2d 864. In Necaise , the petitioner pleaded guilty to two misdemeanor charges that were lesser-included offenses of two original felony charges. Id. at 667-69, 708 S.E.2d 864. We held that these original charges were ineligible for expungement. We explained 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 864. When a person is convicted of lesser included offenses, that person has "been found guilty of offenses charged within the warrants upon which he was arrested," and is "not an ‘innocent citizen’ entitled to the benefit of the expungement statutes." Id. at 670, 708 S.E.2d 864.
When a charge is not a lesser included offense, the inquiry turns on whether the charge is a "completely separate and unrelated charge." Dressner , 285 Va. at 6, 736 S.E.2d 735. In Dressner , the petitioner was originally charged by summons with possession of marijuana. Id. at 3, 736 S.E.2d 735. The charge was amended to reckless driving. Id. at 3-4, 736 S.E.2d 735. The petitioner sought to expunge the police and court records related to the marijuana charge. Id. at 4, 736 S.E.2d 735. We concluded that the petitioner was entitled to seek expungement, reasoning that the marijuana charge was "otherwise dismissed." Id. at 7, 736 S.E.2d 735. We observed that reckless driving is a "completely separate and unrelated" charge compared to possession of marijuana. Id. at 6, 736 S.E.2d 735. Furthermore, "[r]eckless driving is not a lesser-included offense of possession of marijuana." Id. We observed that " ‘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[ ].’ " Id. (alterations in original) (quoting Necaise , 281 Va. at 669, 708 S.E.2d 864 ). Consequently, the petitioner "occupie[d] the ‘status of "innocent" ’ " with respect to that charge. Id. at 7, 736 S.E.2d 735 (quoting Brown v. Commonwealth , 278 Va. 92, 102, 677 S.E.2d 220 (2009) ).
In A.R.A. v. Commonwealth , 295 Va. 153, 157, 809 S.E.2d 660 (2018), "[t]he dispositive question [before us was] whether the petitioner established that the continued existence and possible dissemination of a felony arrest record would constitute an actual or a potential ‘manifest injustice.’ " Nevertheless, as a threshold matter, we held that the petitioner's charges were "otherwise dismissed" so as to render them eligible for expungement. Id. at 158, 809 S.E.2d 660. We reiterated Dressner ’s standard for when a criminal charge is "otherwise dismissed." Id.
In determining whether a charge qualifies for expungement on the basis that it was "otherwise dismissed," a court should examine whether the charge for which the petitioner was convicted is a lesser included offense of the original charge. If it is, the petitioner does not occupy the status of innocent, and the original charge cannot be expunged. Necaise , 281 Va. at 670, 708 S.E.2d 864. Similarly, as a majority of the Court has recently held, if "[an] amendment to the arrest warrant [for the original charge] relate[s] only to the sentencing enhancement sought to be imposed, [and] not the underlying offense," it "simply cannot be said that the amendment resulted in a completely separate and unrelated charge" that would render the original charge eligible for expungement. Forness v. Commonwealth , --- Va. ––––, ––––, 882 S.E.2d 201, 203 (2023). However, if the original charge is "completely separate and unrelated" to the charge the petitioner was convicted of, and the elements of that offense are not subsumed within the original charge, the petitioner is eligible to seek expungement of the original charge. Dressner , 285 Va. at 6, 736 S.E.2d 735.
A determination of whether an amended charge is "completely separate [from] and unrelated" to the original charge is not equivalent to a mechanical application of the Blockburger2 test. Rather, a court should (1) compare the conceptual similarities and differences between the original charge and the amended charge and (2) examine whether the two charges share a common nucleus of operative facts. For example, a charge of robbery that is amended to a charge of...
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