Opinion
CL 2018-5352
06-28-2018
Re: Edwin Tory Dunson v. Commonwealth
Ronald E. Smith Lawrence, Smith & Gardner 3900 University Drive, Suite 320 Fairfax, VA 22030-2513 Keith J. Minson Assistant Commonwealth Attorney 4110 Chain Bridge Road Fairfax, VA 22030
BRUCE D WHITE, CHIEF JUDGE RANDY I BELLOWS ROBERT J SMITH JAN L BRODIE BRETT A KASSABIAN MICHAEL F DEVINE JOHN M TRAN GRACE BURKE CARROLL DANIEL E ORTIZ PENNEY S AZCARATE STEPHEN C SHANNON THOMAS P MANN RICHARD E GARDINER DAVID BERNHARD DAVID A OBLON JUDGES THOMAS A FORTKORT JACK B STEVENS J HOWE BROWN F BRUCE BACH M LANGHORNE KEITH ARTHUR B VIEREGG KATHLEEN H MACKAY ROBERT W WOOLDRIDGE, JR MICHAEL P McWEENY GAYLORD L FINCH, JR STANLEY P KLEIN LESLIE M ALDEN MARCUS D WILLIAMS JONATHAN C THACHER CHARLES J MAXFIELD DENNIS J SMITH LORRAINE NORDLUND DAVID S SCHELL RETIRED JUDGES Ronald E. Smith
Lawrence, Smith & Gardner
3900 University Drive, Suite 320
Fairfax, VA 22030-2513 Keith J. Minson
Assistant Commonwealth Attorney
4110 Chain Bridge Road
Fairfax, VA 22030 Dear Mr. Smith and Mr. Minson:
This matter is before the court on Petitioner Dunson's petition to expunge the "police and court records reciting a conviction per Code § 18.2-248" (Petition at 2) in Case # GC 14149124-00 and to amend the police and court records to reflect a misdemeanor conviction for Code § 18.2-248.1. For the reasons set forth below, the petition is DENIED.
THE POLICE AND COURT RECORDS
The Code section cited on the front of the Warrant of Arrest is Code § 18.2-248, yet the original felony offense is described as "Distribute more than ½ oz. but less than 5 lbs. marijuana." The citation of Code § 18.2-248 is thus plainly erroneous as the offense of distribution of more than ½ oz. but less than 5 lbs. of marijuana is a violation of Code § 18.2-248.1, not Code § 18.2-248. Moreover, despite the fact that the back of the Warrant of Arrest indicates that the offense of conviction was § 18.2-248.1, the Fairfax County Police Department criminal history erroneously shows a conviction for a violation of Code § 18.2-248.
EXPUNGEMENT
The court's authority to order the expungement of police and court records is found in Code § 19.2-392.2, which provides, in relevant part, that a person charged with the commission of a crime "may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge" if the person was "acquitted, or [a] nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2-151." Code § 19.2-392.2(A). The dispositive question in the instant case is thus whether the original felony charge of "Distribute more than ½ oz. but less than 5 lbs. marijuana" was "otherwise dismissed" within the meaning of Code § 19.2-392.2(A) where Mr. Dunson was found guilty of "possess marijuana w/intent to distribute (misdemeanor)" in violation of Code § 18.2-248.1.
In Necaise v. Commonwealth, 281 Va. 666, 708 S.E.2d 864 (2011), the Court held that, where a person was convicted of misdemeanors that were "lesser included offenses of the felonies with which he was charged," 281 Va. at 669, "all of the elements of the offenses of which he was convicted were subsumed within the felony charges and they form the sole bases for the convictions." Id. The Court thus affirmed the judgment of the circuit court denying the petition for expungement of the records pertaining to the two felony charges because the misdemeanors were lesser included charges.
No case from the Virginia Supreme Court or the Virginia Court of Appeals has directly addressed whether possession of marijuana with intent to distribute, a misdemeanor, in violation of Code § 18.2-248.1, is a lesser included offense of the felony of distribution of more than ½ oz. but less than 5 lbs. of marijuana. If the misdemeanor is a lesser included offense of the felony, then the felony which Petitioner Dunson seeks to have expunged may not be expunged in light of Necaise.
Guidance on this question is found in Austin v. Commonwealth, 33 Va. App. 124 (2000), where the court held that "possession of a controlled substance is a lesser-included offense of distribution of that controlled substance." 33 Va. App. at 129. The court reached its conclusion because "[p]roof of the elements of the offense of feloniously, knowingly, and intentionally distributing a controlled substance necessarily encompasses proof of the possession of that same controlled substance." Id. It follows that, because proof of the elements of the offense of feloniously, knowingly, and intentionally distributing marijuana necessarily encompasses proof of the possession of marijuana with the intent to distribute it, possession of marijuana with intent to distribute is a lesser-included offense of distribution of marijuana.
In view of the holding of Austin as applied here, this court concludes that possession of marijuana with intent to distribute, a misdemeanor, in violation of Code § 18.2-248.1, is a lesser included offense of the felony of distribution of more than ½ oz. but less than 5 lbs. of marijuana. Consequently, Petitioner Dunson may not have the felony of distribution of more than ½ oz. but less than 5 lbs. of marijuana expunged.
CORRECTION OF POLICE RECORD
Petitioner Dunson also asks the court to order the correction of his record in the records of the Fairfax County Police Department, which indicates that Petitioner Dunson was convicted on 11/20/15 of a violation of Code § 18.2-248. While this is plainly wrong (as the Warrant of Arrest states on the back that he was found guilty of "possess marijuana w/intent to distribute (misdemeanor)" in violation of Code § 18.2-248.1), this court lacks subject matter jurisdiction at this time to order correction of the Fairfax County Police Department's records.
Code § 9.1-132 provides in pertinent part:
C. If an individual believes information maintained about him is inaccurate or incomplete, he may request the agency having custody or control of the records to purge, modify, or supplement them. Should the agency decline to so act, or should the individual believe the agency's decision to be otherwise unsatisfactory, the individual may make written request for review by the Board. The Board or its designee shall, in each case in which it finds prima facie basis for a complaint, conduct a hearing at which the individual may appear with counsel, present evidence, and examine and cross-examine witnesses. The Board shall issue written findings and conclusions. Should the record in question be found to be inaccurate or incomplete, the criminal justice agency maintaining the information shall purge, modify, or supplement it in accordance with the findings and conclusions of the Board. Notification of purging, modification, or supplementation of criminal history record information shall be promptly made by the criminal justice agency maintaining the previously inaccurate information to any individuals or agencies to which the information in question was communicated, as well as to the individual who is the subject of the records.
* * *
E. Any individual or agency aggrieved by any order or decision of the Board may appeal the order or decision in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).
"'Board' means the Criminal Justice Services Board." Code § 9.1-101. --------
Code § 2.2-4026 of the Administrative Process Act provides for judicial review of the decisions of the Board. Accordingly, unless the Fairfax County Police Department, and then the Criminal Justice Services Board, deny a request by Petitioner Dunson to modify his record, this court lacks subject matter jurisdiction to consider his request.
An appropriate order shall enter.
Sincerely yours,
[Redacted]
Richard E. Gardiner
Judge
VIRGINIA:
IN THE CIRCUIT COURT OF FAIRFAX COUNTY
EDWIN TORY DUNSON Petitioner v. COMMONWEALTH OF VIRGINIA Respondent
FINAL ORDER
THIS MATTER came before the court on Petitioner Dunson's petition to expunge the "police and court records reciting a conviction per Code § 18.2-248" (Petition at 2) in Case # GC 14149124-00 and to amend the police and court records to reflect a misdemeanor conviction for Code § 18.2-248.1.
IT APPEARING to the court, for the reasons stated in the court's letter of June 28, 2018, that Petitioner is not eligible for expungement of the records he seeks to have expunged and that the court lacks subject matter jurisdiction to order amendment of the police records, it is hereby
ORDERED the Petition is DENIED.
ENTERED this 28th day of June, 2018.
[Redacted]
Richard E. Gardiner
Judge
ENDORSEMENT OF THIS ORDER BY COUNSEL OF RECORD FOR THE PARTIES IS WAIVED IN
THE DISCRETION OF THE COURT PURSUANT TO RULE 1:13 OF THE SUPREME COURT OF
VIRGINIA
Copy to: Keith J. Minson
Assistant Commonwealth Attorney Ronald E. Smith