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A.R.A. v. Commonwealth

Supreme Court of Virginia

March 1, 2018

A.R.A. [1]


          PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and McCullough, JJ., and Russell, S.J.



         A.R.A. appeals from a final order denying her petition to expunge a felony arrest record. The trial court declined to expunge the record on the basis that the existence of this record does not and may not cause A.R.A. a manifest injustice. We conclude that the trial court abused its discretion in denying A.R.A.'s petition. Accordingly, we will reverse the judgment below and remand for entry of an order expunging A.R.A.'s felony arrest record.


         In 2014, A.R.A. was charged with a felony, assault and battery of a law enforcement officer, under Code § 18.2-57. She was also charged with two misdemeanors: falsely identifying oneself to law enforcement, in violation of Code § 19.2-82.1, and public swearing or intoxication, in violation of Code § 18.2-388. The charges stemmed from her behavior after she drank to excess. Before A.R.A.'s arraignment, the Commonwealth's Attorney amended the charge to disorderly conduct, in violation of Code § 18.2-415. A.R.A. pled guilty to the disorderly conduct charge. The trial court found her guilty of the offense, and imposed a $200 fine, with six months in jail, suspended, conditioned on three years of "good behavior, keeping the peace, obeying this order and paying fines and costs." The Commonwealth withdrew the remaining misdemeanor charges by nolle prosequi. A.R.A. has no criminal history separate from this event. She went on to graduate from college with a 3.8 grade point average.

         In 2015, A.R.A. filed a petition seeking to expunge the records of both her felony arrest and the withdrawn misdemeanor charges. At a hearing on the petition, A.R.A. testified that she currently works for a large media company and would like to work in the field of children's entertainment. She described the field as competitive. She also has contemplated obtaining an M.B.A. or a law degree to advance her career. She is aware of the character and fitness requirements to sit for the bar exam and the necessary disclosure to law schools of an applicant's prior charges and convictions.

         Before her current employment, A.R.A. completed several internships to build her resume. A.R.A.'s disclosure of her criminal history delayed the start date for one of her internships. She further testified that she interned with a foundation and is interested in obtaining a permanent position at the foundation. To intern with this foundation, she had to undergo a background check that required the disclosure of all charges and convictions. She explained that she decided not to apply for several volunteer programs that work with children because she knew she would have to disclose her record. A.R.A.'s fear is that the positions she is applying for are very competitive and that her arrest record might serve as a disqualifier. She explained that she did not want her career to suffer and did not want the arrest record "to define [her] as a person today."

         The Commonwealth did not dispute A.R.A.'s evidence concerning her career interests or her interest in volunteer work. It chiefly argued that A.R.A. was ineligible for expungement.

         The circuit court agreed that the misdemeanor arrests for falsely identifying oneself to law enforcement and public swearing or intoxication should be expunged. The court held that the felony arrest, however, should not be expunged because "the continued existence and possible dissemination of information relating to the arrest of Petitioner on this charge does not cause and may not cause circumstances which constitute a manifest injustice to the Petitioner." In its discussion from the bench, the court focused on the facts surrounding the arrest.


         Virginia law permits a person charged with a criminal offense to seek the expungement of police and court records relating to a criminal charge if the person has been acquitted or a "nolle prosequi is taken or the charge is otherwise dismissed." Code §§ 19.2-392.2(A)(1) and (2). The dispositive question in this case is 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, " the statutory standard set forth in Code § 19.2-392.2(F).

         I. The felony charge was "otherwise dismissed."

         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 trial court did not address this point of law. We conclude that A.R.A.'s felony arrest record qualifies as a charge that was "otherwise dismissed" under Code § 19.2-392.2(A), and, therefore, she is eligible to seek expungement.

         In Dressner v. Commonwealth, 285 Va. 1, 736 S.E.2d 735 (2013), we reasoned that when a criminal charge is amended to a separate and unrelated charge, and the elements of the amended charge are not subsumed within the original charge, the petitioner occupies "the status of innocent" with respect to the original charge. As such, the petitioner qualifies "under the expungement statute as a person whose charge has been 'otherwise dismissed.'" Id. at 7, 736 S.E.2d at 738 (citation omitted). In contrast, if the petitioner was charged with a felony and is convicted of a lesser-included misdemeanor, the petitioner does not occupy the "status of innocent" for purposes of expungement. Necaise v. Commonwealth, 281 Va. 666, 669, 708 S.E.2d 864, 866 (2011).

         A.R.A. was charged with felony assault and battery, and the Commonwealth amended the charge to misdemeanor disorderly conduct. "An offense is not a lesser-included offense of a charged offense unless all its elements are included in the offense charged." Commonwealth v. Dalton, 259 Va. 249, 253, 524 S.E.2d 860, 862 (2000). A person is guilty of disorderly conduct under Code § 18.2-415 when:

with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
A. In any street, highway, public building, or while in or on a public conveyance, or public place engages in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed.

         The common law crime of assault required an attempt or offer committed with an intent to inflict bodily harm coupled with the present ability to inflict such harm. Hardy v. Commonwealth, 58 Va. (17 Gratt.) 592, 600-01 (1867). The common law tort of assault could be completed if the tortfeasor engaged in actions intended to place the victim in fear of bodily harm and created a well-founded fear in the victim. Koffman v. Garnett, 265 Va. 12, 16, 574 S.E.2d 258, 261 (2003). Over the years, Virginia has merged the common law crime and tort of assault. Today, a criminal assault occurs when either set of elements is proved. Carter v. Commonwealth, 269 Va. 44, 46-47, 606 S.E.2d 839, 841 (2005).

         Each statute contains an element that is not found in the other. Therefore, disorderly conduct is not a lesser included offense of felony assault and battery of a police officer. As a consequence, the felony assault charge was "otherwise dismissed" under Code § 19.2-392.2(A)(2), and A.R.A. is eligible to seek expungement of that record.

         II. The petitioner's unrebutted evidence established that the continued existence and possible dissemination of her arrest record could constitute a "manifest injustice."

         A. When a petitioner "occupies the status of innocent, " the facts of the alleged crime are irrelevant to the resolution of the expungement petition.

         As noted above, under our decision in Dressner, the petitioner "occupies the status of innocent." Id. at 7, 736 S.E.2d at 738. Revisiting the underlying facts of the alleged crime cannot be reconciled with this holding. A petitioner in this circumstance cannot simultaneously occupy the status of innocent and be required to prove her actual innocence of a crime the Commonwealth declined to prosecute.

         The purpose of a criminal trial is to prove factual guilt or innocence and to impose punishment. The purpose of expungement is to determine whether to expunge certain records. The focus of the expungement hearing ought to be on the impact of an existing record, not a retrial of a charge the Commonwealth elected not to prosecute. See Code § 19.2-392.1 (statement of policy stating General Assembly's finding that "arrest records can be a hindrance to an innocent citizen's ability to obtain employment, an education and to obtain credit."); Code § 19.2-392.2(F) (hearing can be held to determine whether "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.").

         For these reasons, we conclude that the manifest injustice standard in this instance is forward-looking, rather than backward-looking. The inquiry turns on whether the continued existence of the record will or may cause the petitioner a manifest injustice in the future. The inquiry is not backward-looking with respect to the facts of the alleged crime. There is an appropriate symmetry to this conclusion. A petitioner may not seek to adduce facts at an expungement hearing to prove his innocence, Daniel, 268 Va. at 531, 604 S.E.2d at 448. The converse ought to hold true: the Commonwealth may not introduce facts to establish the petitioner's guilt of an offense in an expungement hearing when the Commonwealth elected not to prosecute the petitioner for a particular offense.[2]

         B. The standard of review.

         We review a trial court's decision to grant or deny expungement under Code § 19.2-392.2(F) under an abuse of discretion standard. The scope of that discretion, however, is restricted by the forgiving standard that the statute sets forth. 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." Code § 19.2-392.2(F).

         The phrase "manifest injustice" appears in a number places in the Code. See Code § 8.01-692 (requiring a court to deny in forma pauperis status to frivolous inmate litigators unless the court "determines that it would be manifest injustice to deny in forma pauperis status"); Code § 15.2-2136(4), Code § 15.2-3207; Code § 15.2-3525(6); Code § 15.2-3806(6), and Code § 15.2-3906 (all allowing a special court overseeing certain local government matters to "make an appropriate order which will control the subsequent conduct of the case unless modified before or during the trial or hearing to prevent manifest injustice"); Code § 19.2-296 (permitting withdrawal of a guilty plea to correct "manifest injustice"); Code § 20-60.6 and Code § 63.2-1917 (allowing a party to challenge a child support enforcement order "on the grounds that he did not receive the notice and enforcement of the order would constitute manifest injustice"); Code § 20-107.1(B) (barring spousal support on the grounds of adultery unless "the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice"); Code § 32.1-174.1(B) (compelling a court to order forfeiture of a bond or escrow account upon revocation of a permit for the construction of waterworks, "unless the court finds the forfeiture would result in manifest injustice"); Code § 46.2-410.1(A) (permitting a petition for review of the suspension of a driver's license in cases of a manifest injustice). None of the statutes that employ the language "manifest injustice" contain the phrase "causes or may cause circumstances" which constitute a manifest injustice. [3] By employing the word "may, " the General Assembly plainly signaled that a petitioner need not show actual prejudice. Code § 19.2-392.2(F). Instead, the statute contemplates expungement when a petitioner establishes a reasonable possibility of a manifest injustice.

         In the "Statement of Policy" for the chapter of the Code governing expungement, the General Assembly found that "arrest records can be a hindrance to an innocent citizen's ability to obtain employment, an education and to obtain credit." Code § 19.2-392.1. A citizen who occupies the status of innocent should not face the prospect of hindrance in employment, housing or credit from a government arrest record. A reasonable possibility of a hindrance to obtaining employment, an education, or credit can thus serve as a basis for a finding of manifest injustice.

         Although the "manifest injustice" standard is permissive, it does not open wide the door of expungement to all comers. Accordingly, trial courts possess limited discretion to deny such petitions. A person with a lengthy unexpungeable criminal record will generally stand on a different footing with respect to showing a possible "manifest injustice." For such a person, even if an isolated arrest record is expunged, the remaining criminal history remains available to prospective employers and others. It makes little sense to compel overburdened law enforcement agencies to devote time to redacting records when the exercise will yield no tangible benefit to the petitioner. In addition, fantastical or exaggerated assertions of a potential adverse impact on career prospects, credit, housing, or social standing will not suffice to show the potential for a manifest injustice.

         C. A.R.A. established that the continued existence of the arrest records may cause circumstances which constitute a manifest injustice.

An abuse of discretion . . . can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, ...

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