Petitions to expunge incorrectly denied

Listen to this article

Where appellant sought expungement of his record after being acquitted of malicious wounding and attempted robbery, the trial court erred by denying his petitions after ruling “that appellant failed to prove he ‘would’ be denied a job or apartment opportunities despite the acquittal.”

Reasonable possibility

“[T]he evidence was uncontroverted that appellant was acquitted of the malicious wounding and attempted robbery charges. He thus ‘occupie[d] the status of an innocent’ and was entitled to seek an expungement under Code § 19.2-392.2(A). …

“At the evidentiary hearing, appellant testified that he had lost job opportunities and had been told that his criminal charges were a barrier to obtaining an apartment. He even provided copies of email correspondence in support of those contentions.

“Based on appellant’s testimony, the Commonwealth agreed that expungement was appropriate under the circumstances.

“Notwithstanding the uncontested evidence, the trial court found that appellant failed to prove he ‘would’ be denied a job or apartment opportunities despite the acquittal.

“In reaching this conclusion, the trial court necessarily required appellant to prove ‘actual manifest injustice’ rather than only a ‘reasonable possibility’ of manifest injustice from the continued existence of the charges. …

“To be sure, [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.’ …

“Appellant, however, had no charges or convictions on his criminal record other than the charges for which he sought expungement.

“Because appellant satisfied his burden to prove a ‘reasonable possibility’ of manifest injustice, this Court concludes that the trial court abused its discretion by failing to apply the appropriate standard and in denying appellant’s petitions for expungement.”

Reversed and remanded “for entry of an order granting the petitions for expungement.”

Kost v. Commonwealth, Record No. 0035-23-4, Sept. 12, 2023. CAV (unpublished opinion) (per curiam) From the Circuit Court of Arlington County. (Fiore II) (Jessica E. McCollum; McCollum Legal, PLLC, on brief), for appellant. Appellant submitting on brief. No brief or argument for appellee. VLW 023-7-356, 5 pp.