VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court Building in the 

City of Richmond on Thursday the 20th day of April, 2023.

Present: All the Justices

Monique Alicia Williams, Appellant,

against Record No. 220034

Circuit Court No. CL21001850-00

Commonwealth of Virginia, Appellee.

Upon an appeal from a judgment 

rendered by the Circuit Court of Arlington 

County.

Upon consideration of the record, briefs, and argument of counsel, the Court is of opinion 

that the judgment of the circuit court should be reversed.

Monique Williams appeals from the denial of her expungement petition. She was 

arrested on one charge, accessory after the fact of homicide, and she pleaded guilty to an 

amended charge, obstruction of justice. She argues that the accessory after the fact of homicide 

charge was “otherwise dismissed” and, therefore, qualifies for expungement. For the reasons 

that follow, we reverse the order denying expungement and remand for further proceedings.

BACKGROUND

Williams was arrested on the charge of accessory after the fact of a homicide, in violation 

of Code § 18.2-19, a felony. A grand jury indicted her on that charge. Williams pleaded “not 

guilty” to this charge. Several months later, the prosecution amended the indictment, striking out 

the accessory after the fact charge and substituting in its place a new charge: obstruction of 

justice in violation of Code § 18.2-460, a Class 1 Misdemeanor. Williams did not object to the 

amendment. She pleaded guilty to the amended charge. The circuit court found her guilty and 

sentenced her to a suspended sentence of 12 months in jail.

Williams later filed a petition for expungement under Code § 19.2-392.2. She argued 

that under Dressner v. Commonwealth, 285 Va. 1 (2013), the amendment to the indictment 

operated as an acquittal on the charge of being an accessory after the fact to a homicide, and thus 
2

she had the right to have the records related to the initial accessory to murder charge expunged. 

The Commonwealth did not oppose Williams’ petition for expungement.

The circuit court, however, disagreed. In a memorandum opinion, the circuit court 

distinguished Williams’ case from Dressner. It observed that, in Dressner, the amended charge 

“share[d] absolutely nothing similar in any respect” with the original charge. The circuit court 

assumed without deciding that obstruction of justice was not a lesser included offense of the 

accessory after the fact of homicide charge. That was not the end of the inquiry, however. The 

circuit court explained that, in this case, the indictment itself showed that the original accessory 

after the fact of homicide charge and the amended obstruction of justice charge “share[d] many 

similarities.” Relying on Necaise v. Commonwealth, 281 Va. 666 (2011), the circuit court

reasoned that “[a]mending an indictment from accessory to a charge of the same ‘nature or 

character’ — obstruction of justice — does not render [Williams] an ‘innocent citizen’ ‘falsely 

accused.’” The circuit court concluded that “[o]bstruction of justice and accessory after the fact 

are not completely different or separate or unrelated charges by operation of statute and 

interpretation of precedent.” The circuit court added a footnote explaining that Williams’ role in 

the events surrounding the murder are explained in the record of Commonwealth v. Jason Allen 

Johnson, No. CR18000379-00 (Arlington Cnty. Cir. Ct. July 31, 2018), which was attached as an 

exhibit to its memorandum opinion.

ANALYSIS

Virginia law permits the expungement of criminal records in certain circumstances. 

“[T]he threshold determination to be made by the trial court on considering any petition for 

expungement . . . is whether the petitioner has a right to seek expungement of those records 

under an applicable provision of Code § 19.2-392.2(A).” Daniel v. Commonwealth, 268 Va. 

523, 530 (2004). The expungement statute specifies that a person may ask for expungement 

when the petitioner has been 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)(2).

Williams contends that the circuit court employed an incorrect standard in adjudicating 

her petition for expungement. According to Williams, expungement of a charge that has been 

amended “rests on a comparative analysis of the elements between criminal offenses. In other 
3

words, the inquiry is whether the misdemeanor the petitioner was convicted of is a

lesser-included offense of the felony sought to be expunged.”1 We disagree.

I. DETERMINING WHEN A CHARGE IS “OTHERWISE DISMISSED.”

The terms acquittal and nolle prosequi, or nolle prosse, are readily understood. The 

meaning of the phrase “otherwise dismissed” is not as clear. A criminal case may be dismissed 

for a variety of reasons. See, e.g., Code § 19.2-8 (misdemeanor statute of limitations); Code 

§ 19.2-294 (statutory double jeopardy); Groffel v. Commonwealth, 70 Va. App. 681, 687 (2019)

(constitutional double jeopardy), aff’d, 299 Va. 271 (2020). We have construed the phrase 

“otherwise dismissed” more broadly, however, to encompass more than a literal dismissal.

Whether a charge has been “otherwise dismissed” is a question of law that we review de 

novo. Dressner, 285 Va. at 5. In construing the expungement statute, we have considered the 

purpose of the statute, which is to allow “innocent citizens” to avoid the consequences that flow 

from the existence of arrest records. Code § 19.2-392.1.

Where a petitioner is convicted of a lesser included offense of the original charge, the 

original charge does not qualify for expungement. Necaise, 281 Va. at 669-70. In Necaise, the 

petitioner pleaded guilty to two misdemeanor charges that were lesser-included offenses of two 

original felony charges. Id. at 667-69. We held that these original charges were ineligible for 

expungement. We explained that “[b]ecause the misdemeanors of which Necaise was convicted 

were lesser included offenses of the felonies with which he was charged, all of the elements of 

the offenses of which he was convicted were subsumed within the felony charges and they 

form[ed] the sole bases for the convictions.” Id. at 669. When a person is convicted of lesser 

included offenses, that person has “been found guilty of offenses charged within the warrants 

upon which he was arrested,” and is “not an ‘innocent citizen’ entitled to the benefit of the 

expungement statutes.” Id. at 670.

When a charge is not a lesser included offense, the inquiry turns on whether the charge is 

a “completely separate and unrelated charge.” Dressner, 285 Va. at 6. In Dressner, the 

petitioner was originally charged by summons with possession of marijuana. Id. at 3. The 

1 In their briefs and at oral argument, both sides draw from existing precedent. Neither 

party has asked us to discard our existing approach in favor of a radically new test. Stare decisis, 

therefore, not only applies as it ordinarily would, Selected Risks Insurance Co. v. Dean, 233 Va. 

260, 265 (1987), it applies with all the more force when neither side has asked us to overturn our 

precedent.
4

charge was amended to reckless driving. Id. at 3-4. The petitioner sought to expunge the police 

and court records related to the marijuana charge. Id. at 4. We concluded that the petitioner was 

entitled to seek expungement, reasoning that the marijuana charge was “otherwise dismissed.” 

Id. at 7. We observed that reckless driving is a “completely separate and unrelated” charge 

compared to possession of marijuana. Id. at 6. Furthermore, “[r]eckless driving is not a 

lesser-included offense of possession of marijuana.” Id. We observed that “‘the elements of the 

offense[] of which [Dressner] was convicted’ were not ‘subsumed within the [possession of 

marijuana charge]’ and did not ‘form the sole bas[i]s for the conviction[].’” Id. (alterations in 

original) (quoting Necaise, 281 Va. at 669). Consequently, the petitioner “occupie[d] the ‘status 

of “innocent”’” with respect to that charge. Id. at 7 (quoting Brown v. Commonwealth, 278 Va. 

92, 102 (2009)).

In A.R.A. v. Commonwealth, 295 Va. 153, 157 (2018), “[t]he dispositive question [before 

us was] whether the petitioner established that the continued existence and possible 

dissemination of a felony arrest record would constitute an actual or a potential ‘manifest 

injustice.’” Nevertheless, as a threshold matter, we held that the petitioner’s charges were 

“otherwise dismissed” so as to render them eligible for expungement. Id. at 158. We reiterated 

Dressner’s standard for when a criminal charge is “otherwise dismissed.” Id.

In determining whether a charge qualifies for expungement on the basis that it was 

“otherwise dismissed,” a court should examine whether the charge for which the petitioner was 

convicted is a lesser included offense of the original charge. If it is, the petitioner does not 

occupy the status of innocent, and the original charge cannot be expunged. Necaise, 281 Va. at

670. Similarly, as a majority of the Court has recently held, if “[an] amendment to the arrest 

warrant [for the original charge] relate[s] only to the sentencing enhancement sought to be 

imposed, [and] not the underlying offense,” it “simply cannot be said that the amendment 

resulted in a completely separate and unrelated charge” that would render the original charge 

eligible for expungement. Forness v. Commonwealth, ___ Va. ___, ___, 882 S.E.2d 201, 203 

(2023). However, if the original charge is “completely separate and unrelated” to the charge the 

petitioner was convicted of, and the elements of that offense are not subsumed within the original 

charge, the petitioner is eligible to seek expungement of the original charge. Dressner, 285 Va. 

at 6.
5

A determination of whether an amended charge is “completely separate [from] and 

unrelated” to the original charge is not equivalent to a mechanical application of the 

Blockburger2 test. Rather, a court should (1) compare the conceptual similarities and differences 

between the original charge and the amended charge and (2) examine whether the two charges 

share a common nucleus of operative facts. For example, a charge of robbery that is amended to 

a charge of grand larceny from the person is not “completely separate and unrelated” if both 

originate from the same background facts.

In determining whether an original charge is “completely separate and unrelated,” a court 

may consult the underlying records of the petitioner’s criminal case, or related criminal cases,

including any transcripts.3 However, the presentation of new evidence to prove the petitioner’s

guilt or innocence is not permitted. The focus of an expungement proceeding is on existing court 

records; its purpose is not to engage in a retrial of a concluded criminal case. A.R.A., 295 Va. at 

159.

The burden rests with the petitioner to show that the original charge that was later 

amended qualifies as one that was “otherwise dismissed.” Eastlack v. Commonwealth, 282 Va. 

120, 123 (2011).4

II. WE REMAND FOR RECONSIDERATION UNDER THE APPROPRIATE STANDARD.

The circuit court did not rely on a Blockburger comparison of the elements to deny the 

expungement petition. Rather, the circuit court below relied on Code § 19.2-231, which governs 

the amendment of a charging instrument, to determine whether the amended obstruction of 

justice charge was completely separate from and unrelated to the original charge of accessory 

after the fact of murder. In light of our clarification of the standard that applies to the review of 

expungement petitions when the claim is that the original charge was “otherwise dismissed,” we 

reverse the judgment below and remand for the circuit court to review anew Williams’ 

2 See Blockburger v. United States, 284 U.S. 299 (1932).

3 Williams also assigns error to the trial court’s taking of judicial notice of court records 

in a separate case. We need not address this issue in light of our remand. Nevertheless, we note 

that if a court does take judicial notice of court records, such notice must be taken in conformity 

with the rules that govern such notice. See Rule 2:201.

4 The General Assembly, as the policy making body of our Commonwealth, remains free, 

of course, to narrow or to broaden the scope of the expungement statute. Whether it should do so 

is for that body to determine. It is not the province of the courts to “inquire into the wisdom of 

legislation.” Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 161 (1919).
6

expungement petition.

JUSTICE MANN, concurring in the judgment.

The majority’s decision today culminates in a reversal. I, much like the majority, am 

trying my best to work within the constraints in which the Code’s ambiguity has placed the 

Court. In doing so, I come to the majority’s result, but by considerably different measures.

Over the passage of time, the remedial intent of Code § 19.2-392.2 has been neutralized 

by the common law this Court has been forced to create. The tests we have crafted to construe 

the statute were only necessary to begin with because the statutory expungement framework was 

really a vision without direction. Tasked with interpreting the statute, this Court had no good 

options when it began to populate the resulting vacuum with different analytical rules to 

determine who was the recipient of the legislature’s grace. The resulting jurisprudential structure 

has become unworkable and unwieldy. The body of expungement law created by a wellintentioned redefinition of eligibility has left the bench and bar in a difficult position.

I recognize and appreciate that our function is to engage in the process of statutory 

construction to determine the intent of the legislature. Once we do that our function “is to 

resolve cases based on the law.” Taylor v. Northam, 300 Va. 230, 247 (2021). Stated more 

starkly, “[i]t is emphatically the province and duty of the judicial department to say what the law 

is.” Marbury v. Madison, 5 U.S. 137, 177 (1803).

Further recognizing our preference to conform to the restrictions of the doctrine of 

judicial review, there is a point where the statute in question which has been construed by this 

Court in different factual settings creates ongoing difficulties relative to its practical and 

common application. That is where we are now. As such, it is appropriate for this Court to 

identify the issue for the legislature and request clarification. This is not unprecedented. See, 

e.g., Butcher v. Commonwealth, 298 Va. 392 (2020) (Mims, J. concurring).

The practical application of the expungement statute as applied to different factual 

scenarios cause difficulties for the reasons set out below. “It therefore is not in the interest of 

justice to postpone resolving the issue highlighted by our diverging interpretations of what the 

statute requires.” Id. at 407. While an unusual request, I respectfully write separately to ask the 

General Assembly to “clarify the statute to express its legislative intent now.” Id. 
7

Notwithstanding my analysis as to the legislature’s intent below, should the legislature decide to 

clarify “otherwise dismissed” it will be our function to interpret and to apply the law.

I. A STATUTORY OVERVIEW

The majority, using the “completely separate and unrelated charge” language from 

Dressner1 as guidance, argues that using a factual-relatedness test2 is necessary to determine 

whether a petitioner is eligible for expungement. I suggest that the construction of the plain 

language of Code § 19.2-392.2 should control in the absence of guidance from the legislature, 

not a factual-relatedness test. But that guidance is needed.

A. LOOKING FOR GUIDANCE

Before I turn to Code § 19.2-392.2, it is helpful to look at expungement procedures from 

other states. There are three states whose statutes share the “otherwise dismissed” phrase used in 

Code § 19.2-392.2. Each state naturally differs in which charges they deem eligible for 

expungement. As examined below, in jurisdictions where a factual-relatedness test is used, the 

legislature of that jurisdiction has expressly included the requirement in their Code, and often 

only requires the test when multiple charges arise out of one course of conduct. In the absence 

of clear instruction from our General Assembly, the manner in which these states use “otherwise 

dismissed” provides persuasive guidance.

Iowa’s expungement statute contains language most similar to ours. See Iowa Code 

§ 901C.2. In State v. Doe, the Iowa Court of Appeals held that a case had been “otherwise 

dismissed” when it became inactive. 949 N.W.2d 658 (Iowa Ct. App. 2020) (holding that when 

a case has been “transferred” or merged into another case number, the original case becomes 

inactive and is considered otherwise dismissed). The Iowa Supreme Court has rejected a 

“factual-relatedness” test for expungements because their statute, much like ours, does not 

contain language enacted by their legislature permitting that analysis. See State v. Doe, 903 

1 Dressner v. Commonwealth, 285 Va. 1 (2013).

2 Many jurisdictions that follow a form of the majority’s test refer to it as a factualrelatedness test. For simplicity, I refer to the majority’s test in this manner. Often, this test is 

only used when a petitioner is seeking expungement of one or more charges from a group of 

charges received simultaneously that have not been formally dismissed. See, e.g., Md. Code

Ann., Crim. Proc. § 10–107. It does not appear that any jurisdiction has expanded this factualrelatedness test to require a factual comparison of conduct giving rise to a single charge that is 

thereafter amended in the manner our majority does today.
8

N.W.2d 347 (Iowa 2017), as amended (Nov. 15, 2017).

Similarly, Delaware’s expungement statute states that a case is eligible for expungement 

if the case is “terminated in favor of the accused” in seven specific manners, one of which is 

when “[a]ll charges related to the case are otherwise dismissed.” Del. Code Ann. tit. 11, 

§ 4372(b)(4). Delaware does not require a factual-relatedness test to determine eligibility of 

“otherwise dismissed” charges but does require that all charges related to the case are dismissed. 

Id. Delaware’s expungement statute also shares a purpose similar to Code § 19.2-392.2 in 

recognizing that “criminal history is a hinderance to a person’s present and future ability to 

obtain employment, housing, education, or credit,” and was enacted “to protect persons from 

unwarranted damage which may occur when the existence of a criminal history continues 

indefinitely.” Del. Code Ann. tit. 11, § 4371.

Finally, Maryland’s expungement statute also contains “otherwise dismissed” language. 

Md. Code Ann., Crim. Proc. § 10–105(a). However, Maryland has separately enacted Md. Code

Ann., Crim. Proc. § 10–107 specifically for expungement of charges arising from the same

incident, transaction, or set of facts. Md. Code Ann., Crim. Proc. § 10–107 states that if two or 

more charges . . . arise from the same incident, transaction, or set of facts, they are considered to 

be a unit,” (a)(1), and “[i]f a person is not entitled to expungement of one charge or conviction in 

a unit, the person is not entitled to expungement of any other charge or conviction in the unit.” 

(b)(1). Therefore, Maryland’s legislature has expressly approved a factual-relatedness test only

in situations arising from two or more charges.

Our General Assembly has not codified the test in any situation. Accordingly, our Code 

does not explicitly permit trial courts to engage in fact-finding to determine the relatedness of 

original and amended charges in resolving expungement eligibility. Instead, the General 

Assembly has provided only a narrow mechanism to allow for the introduction of information 

barring an expungement. See Code § 19.2-392.2(F) (providing the Commonwealth’s Attorney 

an opportunity to show good cause as to why an expungement should not be granted). The 

introduction of evidence showing good cause can serve as a mechanism to assist a trial court in 

determining whether a petitioner should receive an expungement. Without explicit language 

enacted by the General Assembly, this Court should avoid erecting procedural hurdles that the 

legislature chose not to incorporate into the Code. It bears repeating: clarity provided by the 
9

General Assembly would provide much-needed guidance for this Court to use in determining 

expungement eligibility.

In looking for guidance, many states take a similar approach to Delaware in explicitly 

listing the circumstances that permit an expungement. See, e.g., Mo. Rev. Stat. § 610.105(1) (“If 

the person arrested is charged but the case is subsequently nolle prossed, dismissed, or the 

accused is found not guilty or imposition of sentence is suspended in the court in which the 

action is prosecuted, official records pertaining to the case shall thereafter be closed records 

when such case is finally terminated.”). By providing explicit circumstances in which an 

expungement can be granted, the legislature leaves no vacuum for the courts to populate.

Importantly, there are states that have chosen to embrace the remedial nature of 

expungements and permit the expungement of a case where no disposition has been reached or 

the case has not been prosecuted. See Miss. Code Ann. § 99-15-57(2); § 99-15-26(5) (“Upon 

petition therefor, the court shall expunge the record of any case in which an arrest was made, the 

person arrested was released and the case was dismissed or the charges were dropped, there was

no disposition of such case, or the person was found not guilty at trial.”); N.H. Rev. Stat. Ann. §

651:5(II-a)(a) (“For an offense disposed of on or after January 1, 2019, any person whose arrest 

has resulted in a finding of not guilty on all charges that resulted from the arrest, or whose case 

was dismissed or not prosecuted, shall have the arrest record and court record annulled.”); 18 Pa.

Stat. § 9122(a) (“Criminal history record information shall be expunged in a specific criminal 

proceeding when: (1) no disposition has been received or, upon request for criminal history 

record information, no disposition has been recorded in the repository within 18 months after the 

date of arrest and the court of proper jurisdiction certifies to the director of the repository that no 

disposition is available and no action is pending.”).

Unfortunately, while “otherwise dismissed” is broad language, it does not provide broad 

relief, thus leaving this Court’s hands tied. In the interim, I turn to Code § 19.2-392.2, using the 

above guidance from states to help guide the analysis.

B. UNTANGLING CODE § 19.2-392.2

To remain true to the express legislative purpose of the statute, the Commonwealth can 

simplify that which has become complicated thusly: “otherwise dismissed” means a criminal 

defendant was not convicted of the charge which brought him or her into the criminal justice 

system.
10

I do not suggest anything groundbreaking. Rather, through traditional statutory 

construction the legislature’s intent can be gleaned. “‘[T]he primary objective of statutory 

construction is to ascertain and give effect to legislative intent.’” Conger v. Barrett, 280 Va. 

627, 630 (2010) (alteration in original) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 

(1983)). “‘When the language of a statute is unambiguous, we are bound by the plain meaning 

of that language.’” Commonwealth v. Morris, 281 Va. 70, 76 (2011) (quoting Conyers v. 

Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007)). “‘If a statute is subject to more 

than one interpretation, we must apply the interpretation that will carry out the legislative intent 

behind the statute.’” Id. (quoting Conyers, 273 Va. at 104) (emphasis added).

A petitioner is eligible for an expungement if they have been acquitted of the charged 

crime or a “nolle prosequi is taken or the charge is otherwise dismissed.” 

Code §§ 19.2-392.2(A)(1) and (2) (emphasis added). Argument over the phrase “otherwise 

dismissed” continues to come before this Court and is the source of many of our judicially 

defined criteria for Code § 19.2-392.2 eligibility. See, e.g., Forness v. Commonwealth, 302 Va. 

___, ___, 882 S.E.2d 201, 203 (2023) (holding that an admittedly wrongfully charged felony was 

nonetheless ineligible for expungement because the original charge had been amended to a 

lesser-included offense and was therefore not “otherwise dismissed”); Dressner, 285 Va. 1 

(holding that when a criminal charge is amended to a separate and unrelated charge, and the 

elements of that amended charge are not subsumed within the original charge, the petitioner is 

eligible for expungement); see also Commonwealth v. Jackson, 255 Va. 552, 555-56 (1998)

(holding that a defendant who pleaded nolo contendere and later received a dismissal of his

charge was ineligible for expungement).

However, the General Assembly has recently abrogated some of this Court’s precedent to

permit expungement of charges resulting from deferred dispositions despite the entry of guilty

pleas. See, e.g., Code § 19.2-298.02(D) (“Upon agreement of all parties, a charge that is 

dismissed pursuant to [deferred disposition] may be considered as otherwise dismissed for 

purposes of expungement of police and court records in accordance with § 19.2-392.2.”). With 

these legislative trends guiding the way, the General Assembly has provided the initial 

framework for this Court, but without more specific guidance on the term “otherwise dismissed,” 

this Court is still bound by its prior precedent and is unable to free itself from its constraints.
11

Without additional guidance concerning whether “otherwise dismissed,” applies to an 

unadjudicated original charge where a petitioner has been convicted of an amended charge, I 

look to the General Assembly’s intent. Code § 19.2-392.1 states, in relevant part, that “[t]he 

General Assembly finds that arrest records can be a hindrance to an innocent citizen’s ability to 

obtain employment, an education and to obtain credit.” We should therefore read 

Code § 19.2-392.2 with this policy statement inspiring and pervading all analysis. See Rector 

and Visitors of University of Virginia v. Harris, 239 Va. 119, 124 (1990) (quoting Board of Sup. 

v. King Land Corp., 238 Va. 97, 102-03 (1989)) (“Every statute should be read so as to ‘promote 

the ability of the enactment to remedy the mischief at which it is directed. . ..’ All other rules of 

construction are subservient to that intent.”).

The definition of “otherwise” is broad, but instructive here. “Otherwise” means “in a 

different way or manner” or “in different circumstances.” Webster’s Third New International 

Dictionary 1598 (2002). The definition of “dismiss” provides additional guidance. “Dismiss” 

means “to put (a legal action or a party) out of judicial consideration: refuse to hear or hear 

further in court.” Id. at 652. It appears to me that the term “otherwise dismissed” therefore 

means to put a legal action out of consideration in a different way or manner than a nolle prosse

or dismissal in fact by the trial court. This definition is consistent with the General Assembly’s 

intent to ensure that an innocent citizen’s arrest records are not “a hindrance to an innocent 

citizen’s ability to obtain employment, an education and to obtain credit.” Code § 19.2-392.1.

This interpretation makes practical sense as well. A nolle prossed charge may be 

resurrected by the Commonwealth so long as the proper procedural requirements are met.3

 If a 

nolle prossed charge is eligible for an expungement, an indictment preceding an amended charge 

should likewise be eligible for expungement. Both a nolle prosse and a motion to amend an 

indictment have the same result: the criminal proceeding of the initial charge ceases 

immediately. Thus, they should not be treated differently. If a charge has been put out of

3 For the Commonwealth’s Attorney to resurrect a nolle prossed charge, a new indictment 

is required. Miller v. Commonwealth, 217 Va. 929, 935 (1977). This “indictment is 

a new charge, distinct from the original charge or indictment.” Harris v. Commonwealth, 258

Va. 576, 585 (1999) (emphasis added).
12

judicial consideration in any manner, unless explicitly prohibited by the General Assembly,4 the 

charge should be eligible for expungement so that it does not become a hinderance to 

employment, education, or credit.5

 The language allows for a simple application without the 

need for further statutory construction.6

As previously explained, there is nothing groundbreaking in the call for legislative 

clarification. No philosophical or conceptual legislative debate need occur to populate the 

General Assembly’s intent as construed herein, but a clarifying definition is necessary 

4 See, e.g., Code § 19.2-57.3(E) (“No charges dismissed pursuant to this section shall be 

eligible for expungement under § 19.2-392.2”).

5 I emphasize that this reading does not lead to a result whereby every petitioner will be 

granted an expungement, it merely provides a petitioner with procedural eligibility for an 

expungement. It does not abrogate or affect the Commonwealth’s discretion to object to an 

expungement, to show good cause, or to request that a showing of manifest injustice be made.

6 I recognize that my proposed path forward is the minority view. My concurrence is one 

borne out of two problems with the majority’s test: its requirement of a factual determination, 

and the costs borne by the petitioner.

We have expressly held that, “[a] petitioner . . . cannot simultaneously occupy the status 

of innocent and be required to prove her actual innocence of a crime the Commonwealth 

declined to prosecute.” A.R.A. v. Commonwealth, 295 Va. 153, 159 (2018). The majority’s 

framework could compel a petitioner to do just that. The majority’s opinion states that a trial 

judge is not to engage in the retrial of the petitioner’s original charge, but the practical effect of 

asking a judge to look at the underlying facts of an unadjudicated original charge could lead a 

trial court to engage in machinations which will surely degrade the guidance of A.R.A. The 

reality of the matter is that if a person is charged with a crime based on certain conduct, any 

amended charge is almost always going to result from the same “common nucleus of operative 

facts.” Supra at 6. If there is unrelated conduct, it is more likely to have resulted in a separate 

charge than become the basis for an amended charge.

The most concerning impact of this test is the heavy burden it places on petitioners. 

Courts in this Commonwealth do not retain records indefinitely, leaving certain warrants, 

transcripts, and plea agreements unavailable. See, e.g., Code § 16.1-69.55. How is a petitioner 

seeking expungement of an older charge expected to overcome this factual-relatedness test if 

there is no evidence available to him to meet this burden? The test also encourages trial judges 

to look through “related criminal cases,” which a petitioner may not have access to, particularly 

if relevant materials in the file are sealed. The procedural difficulties petitioners face are not 

only issues of access, but issues of cost. The majority suggests that “a court may consult the 

underlying records of the petitioner’s criminal case, or related criminal cases, including any 

transcripts.” Supra at 6. Leaving aside evidentiary and admissibility concerns, if the trier of fact 

requires court transcripts, the burden will be on the petitioner to provide them. Transcripts are 

not affordable, especially when a petitioner may already be struggling with employment or 

housing stability because of his or her arrest over a charge which was otherwise dismissed.
13

nonetheless given this Court’s precedent. I recognize that this Court is bound by the doctrine of 

stare decisis, which demands that “precedent is to be respected unless the most convincing of 

reasons demonstrates that adherence to it puts us on a course that is sure error.” Citizens United 

v. Fed. Election Comm'n, 558 U.S. 310, 362-63 (2010). This adherence “does not, however, 

compel [this Court] to perpetuate what [it] believe[s] to be an incorrect application of the law” 

and this Court will not ignore the “duty to develop the orderly evolution of the common law of 

this Commonwealth.” Nunnally v. Artis, 254 Va. 247, 253 (1997). Thus, my analysis continues.

II. HOW CLARIFICATION WOULD INFORM THIS SPECIFIC CASE

A. “OTHERWISE DISMISSED” BROADLY CONSIDERED

In the struggle over the application of “otherwise dismissed,” this Court has not yet 

addressed the unique question presented by this case as to whether an indictment amended to a 

charge that is not a lesser-included charge under Blockburger is eligible for expungement. To 

effectively answer the question before us, it is necessary to address the meaning of “otherwise 

dismissed,” in a way that is consistent with traditional guidelines of statutory construction. In 

this way, once again, it is my hope that the legislature will see this construction as naturally 

flowing from its intent rather than any type of transformational amendment. In this way the trial 

courts of the Commonwealth will be able to apply a uniform standard in the statute’s routine 

application.

B. MS. WILLIAMS’ EXPUNGEMENT ELIGIBILITY

Using the proposed definition of “otherwise dismissed,” instead of a factual-relatedness 

test, Ms. Williams was eligible for an expungement. However, she was also eligible for an 

expungement under this Court’s prior Blockburger standard.

Ms. Williams’ felony indictment for accessory after the fact to homicide in violation of 

Code § 18.2-19 was struck and the indictment was amended to misdemeanor obstruction of 

justice in violation of Code § 18.2-460. The amended indictment deleted all the language from 

the original indictment; not a single word of the original charge is included in the amended 

indictment for obstruction of justice. There can be no question that the original charge was put 

out of judicial consideration by the trial court. Accordingly, amending the original charge in the 

indictment otherwise dismisses that charge, thus making it eligible for expungement under a 

logical reading of Code § 19.2-392.2.
14

Under my proposed interpretation of “otherwise dismissed,” a Blockburger analysis 

would become unnecessary. Nevertheless, a Blockburger test would render her charge eligible 

for expungement. Comparing the elements of the two crimes7 reveals that they share no 

similarities under a traditional Blockburger analysis. The majority and trial court relied on the 

“separate and unrelated” language from Dressner. 285 Va. at 6. However, the holding of 

Dressner made clear that the elements of the two charges were separate and unrelated, and 

therefore, the petitioner “occupie[d] the ‘status of “innocent”’” because the elements of her 

amended charge were not subsumed within her original charge. Id. at 7 (quoting Brown v. 

Commonwealth, 278 Va. 92, 102 (2009)). Thus, under a plain language definition of “otherwise 

dismissed,” or the traditional Blockburger analysis, Ms. Williams is eligible for an 

expungement.8

CONCLUSION

In truth, expungement was always somewhat of a paradox: a remedy conceived in 

hope but forged through an accompanying set of procedures that diminished that 

promise, limiting its relief to the fortunate few rather than the necessary many. 

The procedural limits of expungement law have always stunted the potential of 

the remedy.

9

7 The elements of accessory after the fact to a homicide are: (1) the homicide must be 

complete, (2) the accused must know that the felon is guilty, and (3) the accused must receive, 

relieve, comfort, or assist the felon. Commonwealth v. Dalton, 259 Va. 249, 253 (2000); 

Code § 18.2-19 (establishing the punishment for a conviction of accessory after the fact). Under 

Code § 18.2-460, obstruction of justice requires either that the accused (1) knowingly obstructs 

an enumerated officer of the law or does not cease obstruction when requested, (2) by threat or 

force intimidates or impedes an enumerated officer, (3) knowingly or willfully makes a 

materially false statement to an officer during an investigation, or (4) intentionally prevents or 

tries to resist their own lawful arrest.

8 Because I would find that Ms. Williams was eligible for expungement of her original 

charge, I would decline to rule on the other assignments of error, as our decision should be based 

on the best and narrowest ground possible. McGhee v. Commonwealth, 280 Va. 620, 626, n.4 

(2010) (citing Air Courier Conference v. American Postal Workers Union, 498 U.S. 517, 531 

(1991) (Stevens, J., concurring) (faithful adherence to the doctrine of judicial restraint warrants 

decision of cases “on the best and narrowest ground available”)).

9 Brian M. Murray, Completing Expungement, 56 U. Rich. L. Rev. 1165, 1167 (2022) 

(internal citations omitted).
15

Because I urge the General Assembly to make clear that the term “otherwise dismissed” 

means to render a legal action out of consideration in a different way or manner than a nolle 

prosse or formal dismissal by the trial court, Ms. Williams would be eligible for expungement. 

In this case, the petitioner was saddled with a process we have made so difficult and then, by 

extension, the trial court was required to utilize a conceptual framework that collapses under its 

own weight. Therefore, I concur only in the judgment of the majority, and entreat the General 

Assembly to provide this Court with the necessary guidance so that the bench and bar may utilize 

a clear framework to access Code § 19.2-392.2’s remedial relief.

This order shall be published in the Virginia Reports and certified to the Circuit Court of 

Arlington County.

 A Copy,

Teste:

Clerk