Home / Fulltext Opinions / Supreme Court of Virginia / COMMONWEALTH OF VA v. JACKSON



April 17, 1998
Record No. 971431





William C. Andrews,
PRESENT: All the Justices

In this appeal, we
consider whether under the specific facts of this case a person
who has entered a plea of
nolo contendere
to a criminal charge is entitled to have her arrest record
subsequently expunged under Code ? 19.2-392.2.

The facts are not in
dispute. On January 10, 1995, Lynnette M. Jackson entered a plea
nolo contendere to a charge of
misdemeanor concealment of merchandise, Code ? 18.2-103, in the
General District Court of the City of Hampton. That court found
the evidence sufficient to convict, but refrained from entering a
judgment of guilty and imposing sentence on condition that
Jackson be on "good behavior," pay court costs, and not
return to the store where the act of concealment occurred for one
year. One year later and upon stipulation from the Commonwealth
that Jackson had complied with these conditions, that court
dismissed the charge.

On March 25, 1997,
Jackson filed a petition in the Circuit Court of the City of
Hampton seeking expungement under Code ? 19.2-392.2 of the
police and court records related to the concealment charge. In
the petition, Jackson alleged that she "was innocent of any
and all charges."

The Commonwealth did
not file an answer, but appeared at the hearing on the petition,
opposing it on the ground that Jackson was not
"innocent" as contemplated in the statement of policy
governing expungement contained in Code ? 19.2-392.1. The
Commonwealth asserted that the general district court's
determination that the evidence was sufficient to convict her
precluded Jackson from asserting her innocence in the expungement
proceeding. In support of its position, the Commonwealth relied
Gregg v. Commonwealth, 227 Va. 504,
507, 316 S.E.2d 741, 742-43 (1984), for the proposition that
"[t]he expungement statute applies to innocent persons, not
those who are guilty." Alternately, the Commonwealth
asserted that, under the holding in
the charge against Jackson was not "otherwise
dismissed" within the meaning of Code ? 19.2-392.2(A)(2).

In granting the
petition for expungement, the circuit court distinguished
on the ground that the defendant in that case had entered a plea
of guilty to the charge subsequently dismissed following deferral
of judgment, whereas Jackson had pled
nolo contendere.
The trial court's final order directed that the police and court
records of Jackson's arrest on the concealment charge be
expunged. We awarded the Commonwealth this appeal.

On appeal, the
Commonwealth reasserts the arguments it advanced in the circuit
court. In response, Jackson asserts that the circuit court
properly distinguished
Gregg from her
case based upon her entry of a plea of
rather than a guilty plea. Moreover, she
asserts that, as a result of amendments to Code ? 19.2-392.2
enacted subsequent to our decision in
this statute no longer restricts expungement to those dismissals
involving innocent defendants. Specifically, Jackson relies upon
the 1992 amendment to Code ? 19.2-392.2(A)(2) to include charges
dismissed "by accord and satisfaction pursuant to ?
19.2-151" and the amendment of Code ? 19.2-392.2(E) to
include the provision that "if the petitioner has no prior
criminal record and the arrest was for a misdemeanor violation,
the petitioner shall be entitled, in the absence of good cause
shown to the contrary by the Commonwealth, to expungement of the
police and court records relating to the charge." In short,
Jackson argues that these amendments modify the applicability of
and allow expungement in the case of a person convicted of a
first-offense misdemeanor and in such cases shift the burden to
the Commonwealth to show why the records should not be expunged.

We first consider
whether the trial court properly distinguished
on the ground that the defendant in that case entered a plea of
guilty, whereas Jackson entered a plea of
. Asserting that a plea of nolo
is not a confession of guilt, Jackson
contends that there has been no determination of guilt in her
case, and she should be considered an "innocent person"
entitled to petition for expungement. We disagree.

We recognize that a
plea of
nolo contendere is not a
confession of guilt and has no effect beyond permitting the court
to impose sentence in a particular case.
Roach v.
, 157 Va. 954, 959, 162 S.E. 50, 51
(1932). Nonetheless, by entering a plea of
, the defendant "implies a confession
. . . of the truth of the charge . . . [and] agrees that the
court may consider him guilty" for the purpose of imposing
judgment and sentence.
Honaker v. Howe,
60 Va. (19 Gratt.) 50, 53 (1869). Thus, while not an admission of
guilt, neither is a plea of
nolo contendere
a declaration of innocence equivalent to a plea of not guilty.
157 Va. at 960, 162 S.E. at 52;
60 Va. (19 Gratt.) at 53.

The difficulty with
Jackson's position is that she views her plea of
in isolation from the proceeding in which
it was entered. The plea was not the sole basis for the general
district court's action. That court did not merely accept the
plea, but further determined that the evidence was sufficient to
prove Jackson's guilt of the offense and then
"deferred" judgment.
[1] Jackson agreed to abide by
the terms imposed by the court, and the charge was dismissed upon
her satisfactory completion of those terms. In these respects,
the present case is indistinguishable from
We hold that, based on the record of the criminal prosecution,
Jackson is precluded from maintaining her innocence in the
expungement proceeding because, as in
the record that would be expunged affirmatively establishes her
guilt of the offense.

We must now consider
Jackson's contention that even if she is not an "innocent
person" under the rationale of
the subsequent amendments to Code ? 19.2-392.2 have altered the
further holding of that case that a dismissal following a
deferral of judgment of guilt is not a case "otherwise
[2] Code ? 19.2-151 permits the
trial court to dismiss
pending criminal
charges for assault and battery and other misdemeanors for which
there is a civil remedy where the injured party acknowledges
satisfaction of the civil wrong. Jackson asserts that such cases
"nearly always involve a guilty defendant, but may
nevertheless be expunged" under the 1992 amendment of Code
? 19.2-392.2(A)(2). Thus, she contends that this amendment is
evidence of the legislature's rejection of that part of
which, in effect, restricted dismissals only to cases where the
defendant was innocent.
[3] We disagree.

The addition of the
reference to dismissals upon accord and satisfaction under Code
? 19.2-151 is fully consistent with the rationale expressed in
distinguishing dismissals following deferral of judgment from
those cases "otherwise dismissed" as contemplated by
the expungement statute. Under Code ? 19.2-151, the dismissal
takes place without a determination of guilt just as in the case
of a
nolle prosequi or other procedural
dismissal. Accordingly, while it may be true that a defendant who
provides redress for a civil wrong may actually have committed
the concomitant criminal offense, the dismissal occurs without
any determination of guilt or imposition of penalty by judicial
authority. Thus, a dismissal under Code ? 19.2-151 is of the
same quality as those contemplated by the expungement statute at
the time
Gregg was decided, and the
addition of such dismissals to the statute does not affect the
continued viability of the rationale of that case.

In sum, we hold that
both principles of our decision in
regarding the right to seek expungement remain in force. A person
deferred from judgment following a determination that the
evidence is sufficient to support a conviction is not
"innocent" of the offense regardless of the plea
originally entered. Nor does a dismissal following satisfaction
of the terms of that deferral render the case "otherwise
dismissed" for purposes of expungement.

We will reverse the
judgment of the trial court directing that the police and court
records related to the charge against Jackson be expunged, and
enter final judgment for the Commonwealth.

Reversed and
final judgment





[1] The Commonwealth did not
challenge the authority of the general district court to
"defer" judgment or assert the lack of such authority
as a basis for opposing the expungement petition. Accordingly, we
express no opinion as to whether the action of the general
district court was proper.
But see Code
? 19.2-303.2 (excluding larceny offenses from those eligible for

[2] Jackson concedes that she
must first establish her entitlement to petition for expungement
under subsection (A)(2) of ? 19.2-392.2 before reaching the
issue raised by the amendment of subsection (E). It is apparent
on the record that Jackson could not qualify for the right to
petition for expungement of this charge under any other provision
of subsection (A) or (B).

[3] Jackson further notes that
prosecutions are often resolved upon a motion of
"for reasons other than the innocence
of the defendants." However, the provision for expungement
of records of a criminal charge resolved upon a motion for
was in place at the time of our decision in
Gregg, and, thus, has no bearing on our
determination of the effect of the subsequent amendment to the
statute on the continued viability of that decision.

[4] Because we conclude that
Jackson was not eligible to petition for expungement, we need not
consider the effect of the amendment to Code ? 19.2-392.2(E) on
the burden of proof in expungement hearings.