No expungement of inaccurate felony charge

A Supreme Court of Virginia majority has refused to expunge a felony charge of driving while intoxicated even though the government conceded that the man didn’t have the requisite prior felony and should only have been charged with a misdemeanor.

Rather than dismiss and recharge the man, the government amended his arrest warrant before trial in the general district court. He was convicted of the misdemeanor, but the felony charge stayed on his record.

The circuit court rejected the man’s expungement petition and he lost on appeal, but for a different reason.

“Given that the actual offense that [the man] was charged with remained the same, it simply cannot be said that the amendment resulted in a completely separate and unrelated charge,” Justice Cleo E. Powell wrote. “Accordingly, the amendment did not render the Felony DWI charge ‘otherwise dismissed’ for the purposes of Code § 19.2-392.2.”

The decision is Forness II v. Commonwealth (VLW 023-6-001).

Justice Thomas P. Mann penned a lengthy — and pointed — dissent.

“[U]nder the particular and unique facts of this case, I conclude that Forness’ felony charge was eligible for expungement under Code § 19.2-392.2, and that the continued existence of the charge, based on an imaginary felony conviction, constitutes a manifest injustice,” he wrote. “To affirm the circuit court’s judgment applies a judicially created test in a new context and would defeat the plain language and stated intent of the expungement statute. Our precedent should foreclose such a result.”

The felony

Nolan Marcus Forness II was arrested and charged with a felony violation of Code § 18.2-266 for driving while intoxicated after having committed a prior felony violation of that statute.

The government then figured out that Forness didn’t have a prior conviction for felony driving while intoxicated. They decided to simply amend the arrest warrant to charge him with a second offense misdemeanor violation.

Forness was convicted of the misdemeanor in the general district court. He appealed to the circuit court, where he was again convicted. While that appeal was pending, Forness petitioned to expunge the felony charge from his record.

The government didn’t contest Forness’ argument that the inaccurate charge implied a nonexistent felony conviction, but they argued the petition was premature.

Calling it “speculative” that the felony charge would negatively impact his work in the jewelry industry, the circuit court denied Forness’s expungement petition.

This appeal followed.

‘Otherwise dismissed?’

Forness claimed his arrest record was “indisputably inaccurate” and that the amendment of his arrest warrant operated as a dismissal of the felony charge, making it eligible for expungement.

Because the language of the felony charge implied not only that he had been charged with a felony, but that he also had been previously convicted of a felony, Forness said the inaccurate record resulted in a manifest injustice.

Powell explained that the threshold determination when considering a petition for expungement is if the petitioner, under an applicable provision of Code § 19.2-392(A), has a right to seek expungement.

“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,’” she wrote. “Here, it is undisputed that Forness was not acquitted of the DWI after a prior felony conviction charge, nor was a nolle prosequi taken.”

The question to be resolved, Powell, noted, is whether amending the felony charge meant it was “otherwise dismissed.”

The justice pointed to 2011’s Necaise v. Commonwealth, which said “a charge is not ‘otherwise dismissed’ when, for example, it is reduced to a lesser included offense.”

She added that 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. Conversely, a charge is ‘otherwise dismissed’ when the original charge is amended to a ‘completely separate and unrelated charge.’”

“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. In other words, the difference between the two charges is one of degree and not of kind.”

— Judge Mary Grace O’Brien

Powell rebuffed Forness’ contention that the lack of any temporal element in the felony charge meant that the misdemeanor couldn’t 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,” the justice wrote.

However, Code § 18.2-270 lists the different penalties that could be levied for driving while intoxicated in violation of Code § 18.2-266.

“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,” Powell wrote. “In other words, the difference between the two charges is one of degree and not of kind.”

Here, the justice found that the arrest warrant was amended only in relation to the sentencing enhancement, 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,” Powell said. “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.”

Since the amendment did not render the felony DWI charge “otherwise dismissed,” the lower court made the correct call when it dismissed Forness’s expungement petition.

Dissent

“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,” Mann wrote. “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.”

Both parties conceded that Forness couldn’t have been convicted of the crime he was charged with; thus, the lesser included offense analysis used by the majority “defeats the plain meaning” of the expungement statute, the justice noted.

“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.”

— Justice Thomas P. Mann, dissenting

“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,” he said.

A criminal record can be “determinative of one’s livelihood, one’s future, and even one’s freedom to exercise constitutional rights,” the justice added.

“The accuracy of one’s record, just like one’s reputation, should be subject to significant scrutiny,” Mann said. “The carelessly charged offense now will remain on his record despite its alarming consequences.”

‘You wear it’

Fairfax attorney Alan J. Cilman, who was Forness’ lawyer from trial onward, told Virginia Lawyers Weekly he didn’t understand why the court chose not to rectify the government’s mistake.

“It’s the government’s mistake but you wear it. Why is that?” he asked. “The legislature created this statute with a very clear purpose and that was so you wouldn’t run around with charges for which you weren’t convicted.”

Cilman thought Mann’s dissent got it right when he pointed out that “you don’t separate the enhanced DUI punishment in expungement, you treat it like an enhanced DUI all the way.”

Cilman said he was considering arguments to address in a motion for reconsideration.

Steve Armstrong represents criminal defendants in and around Chesterfield County. While he understood what Powell detailed in her analysis — that the charge remained the same and only the sentence was at issue — he agreed with Mann’s dissent “wholeheartedly.”

“It is incredible that this case even got to the Supreme Court of Virginia,” he said. “There is no dispute that Forness was charged with the wrong crime. How could that charge remain on his criminal record?”

Armstrong fears what Mann described as the court now applying a “judicially created test in a new context” that defeats the purpose of the expungement statute, the only mechanism to “avoid injustice to an ‘innocent citizen’ falsely accused and unjustly
convicted.”