PRESENT: All the Justices 

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 971431 JUSTICE LAWRENCE L. KOONTZ, JR. 

April 17, 1998 

LYNNETTE M. JACKSON 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

William C. Andrews, Judge 

 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 of 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 upon 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 Gregg, 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 Gregg 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 

2
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 nolo contendere 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 Gregg, 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 Gregg 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. 

3
 We first consider whether the trial court properly 

distinguished Gregg on the ground that the defendant in that 

case entered a plea of guilty, whereas Jackson entered a plea of 

nolo contendere. Asserting that a plea of nolo contendere 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. 

Commonwealth, 157 Va. 954, 959, 162 S.E. 50, 51 (1932). 

Nonetheless, by entering a plea of nolo contendere, 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. Roach, 157 Va. at 

960, 162 S.E. at 52; Honaker, 60 Va. (19 Gratt.) at 53. 

 The difficulty with Jackson’s position is that she views 

her plea of nolo contendere 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 

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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 Gregg. 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 Gregg, 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 Gregg, 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 

dismissed.”2 Code § 19.2-151 permits the trial court to dismiss 

 

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 

deferral). 

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 

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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 Gregg 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 Gregg 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 

 

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 nolle prosequi “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 nolle prosequi 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. 

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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.4

 In sum, we hold that both principles of our decision in 

Gregg 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. 

 

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. 

7
 Reversed and final judgment. 

8