COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND JAMES CITY
COUNTY Randolph T. West, Judge Designate
PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and
McCullough, JJ., and Russell, S.J.
STEPHEN R. McCULLOUGH, JUDGE.
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.
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.
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of both her felony arrest and the withdrawn misdemeanor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.
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."
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.
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.
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 §
felony charge was "otherwise dismissed."
"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
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).
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
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).
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.
petitioner's unrebutted evidence established that the
continued existence and possible dissemination of her arrest
record could constitute a "manifest injustice."
a petitioner "occupies the status of innocent, "
the facts of the alleged crime are irrelevant to the
resolution of the expungement petition.
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.
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.").
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.
standard of review.
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 §
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.
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.
"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
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.
A.R.A. established that the continued existence of the arrest
records may cause circumstances which constitute a manifest
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