PRESENT: All the Justices 

COMMONWEALTH OF VIRGINIA 

v. Record No. 071162 OPINION BY 

JUSTICE S. BERNARD GOODWYN 

NINA CARMAN DOTSON June 6, 2008 

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL 

Larry B. Kirksey, Judge 

 In this appeal, we consider whether a criminal charge that 

was dismissed pursuant to a first offender statute, Code 

§ 18.2-251, can be expunged from a defendant’s record. 

 Nina Dotson (“Dotson”), charged with possession of 

marijuana under Code § 18.2-250.1, tendered a plea of nolo 

contendere in the Circuit Court of the City of Bristol. The 

court accepted the plea, deferred proceedings pursuant to a 

first offender statute, Code § 18.2-251, and, upon Dotson’s 

successful completion of the obligations imposed upon her by 

the court, dismissed the charge. Approximately three years 

later, Dotson made a motion for expungement of her records 

regarding the possession of marijuana charge. The trial court 

granted the motion. The Commonwealth appeals. 

 On August 2, 2001, Dotson pled not guilty to the 

misdemeanor charge of possession of marijuana and was convicted 

in the General District Court of the City of Bristol. Dotson 

appealed the conviction to the Circuit Court of the City of 

Bristol, where she tendered a plea of nolo contendere as part 
of an agreement that the Commonwealth would recommend that she 

be treated as a first offender pursuant to Code § 18.2-251. 

The court accepted the plea and deferred proceedings pursuant 

to the first offender statute. The trial court’s order did not 

state that there was a finding of guilt or that there was 

evidence sufficient for a finding of guilt. 

 Pursuant to the disposition of her claim under the first 

offender statute, the court ordered Dotson to serve one year of 

active probation and suspended her driver’s license for six 

months. The court also ordered Dotson to pay the cost of the 

proceedings within six months, enter into and successfully 

complete any substance abuse programs as directed by her 

probation officer, complete twenty-four hours of community 

service, and remain free from using drugs and alcohol. On 

October 23, 2002, the circuit court ruled that Dotson had 

satisfied her court-ordered obligations and, based upon 

Dotson’s successful completion of those court-ordered 

obligations, the court dismissed the possession of marijuana 

charge. 

 On December 27, 2005, Dotson served the Commonwealth with 

a motion for expungement of her police and court records 

regarding the possession of marijuana charge. Dotson stated in 

her motion that the charge had been dismissed upon her 

successful completion of her court-ordered obligations. Dotson 

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did not allege that she had been acquitted or that a nolle 

prosequi had been taken in her case. Her motivation for 

seeking expungement, as stated in her motion, was a job 

rejection and the potential for subsequent rejections due to 

her criminal record. 

 After a hearing, the trial court found that “[u]nwarranted 

damage [] occurred to [Dotson] and may occur in the future if 

her arrest record is not expunged.” The trial court also found 

that, even though the court had treated Dotson as a first 

offender, the court’s order doing so failed to “reflect a 

finding of guilt or that the evidence would have been 

sufficient for a finding of guilt.” Based on these findings, 

the trial court ordered that Dotson’s arrest and court records 

regarding the possession of marijuana charge be expunged. 

 Code § 19.2-392.1 contains the following statement of 

policy: 

The 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. 

It further finds that the police and court records of 

those of its citizens who have been absolutely 

pardoned for crimes for which they have been unjustly 

convicted can also be a hindrance. This chapter is 

intended to protect such persons from the unwarranted 

damage which may occur as a result of being arrested 

and convicted. 

Code § 19.2-392.1 (emphasis added). 

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 Code § 19.2-392.2(A) lists the pertinent occasions when an 

expungement may be sought; it states, in relevant part: 

If a person is charged with the commission of a 

crime and (1) [i]s acquitted, or (2) [a] nolle 

prosequi is taken or the charge is otherwise 

dismissed, including dismissal by accord and 

satisfaction pursuant to § 19.2-151 . . . he may 

file a petition setting forth the relevant facts and 

requesting expungement . . . . 

Code § 19.2-392.2(A).∗

 There is no dispute regarding the fact 

that Dotson was neither acquitted nor was a nolle prosequi 

taken dismissing her charge. Thus, under the statute, in order 

for Dotson’s charge to be expunged, it must have been 

“otherwise dismissed.” 

The Commonwealth notes that Dotson pled nolo contendere 

and that the relevant first offender statute, Code § 18.2-251, 

requires a court to find evidence sufficient for a finding of 

guilt prior to placing a defendant on first offender status. 

The Commonwealth argues that expungement is designed for 

“innocent” citizens, and a charge dismissed pursuant to a first 

offender statute is not “otherwise dismissed” as required by 

Code § 19.2-392.2(A); thus, it may not be expunged. 

 Dotson argues that she is entitled to expungement despite 

her plea of nolo contendere because the trial court’s order, 

deferring disposition of her charge and placing her on terms 

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pursuant to Code § 18.2-251, did not expressly state that the 

court found evidence sufficient for a finding of guilt. 

Analogizing her dismissal to an accord and satisfaction, Dotson 

claims that her charge qualifies for expungement because it was 

“otherwise dismissed” within the meaning of Code § 19.2-

392.2(A). We disagree with Dotson. 

 In Commonwealth v. Jackson, 255 Va. 552, 499 S.E.2d 276 

(1998), this Court offered the following explanation regarding 

a plea of nolo contendere: 

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. 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. 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. 

Id. at 555, 499 S.E.2d at 278 (citations omitted). 

Dotson, by pleading nolo contendere to the possession of 

marijuana charge, agreed that the court could consider her 

guilty for the purpose of imposing judgment and sentence. 

Accepting Dotson’s plea of nolo contendere, the trial 

court placed her on first offender status. The first offender 

 ∗

 Code § 19.2-392.2 was amended effective July 1, 2007. 

See 2007 Acts chs. 465, 824, 883, and 905. However, these 

amendments are not relevant to this case. 

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statute, Code § 18.2-251, states that if a person pleads guilty 

or enters a plea of not guilty, “the court, upon such plea if 

the facts found by the court would justify a finding of guilt, 

without entering a judgment of guilt and with the consent of 

the accused, may defer further proceedings and place him on 

probation upon terms and conditions.” Code § 18.2-251 

(emphasis added). By statute, inherent in a trial court 

placing a defendant on first offender status is a finding by 

the trial court that there is evidence sufficient to find the 

defendant guilty. Under the first offender statute, probation 

and ultimate dismissal is conditioned upon a finding of guilt. 

Gregg v. Commonwealth, 227 Va. 504, 507, 316 S.E.2d 741, 743 

(1984). 

This Court presumes that the trial court followed the 

statutory mandate of Code § 18.2-251. See Napert v. Napert, 

261 Va. 45, 47, 540 S.E.2d 882, 884 (2001); Beck v. Semones, 

145 Va. 429, 442, 134 S.E. 677, 681 (1926). As a matter of 

law, the trial court had to find there was sufficient evidence 

to find Dotson guilty before disposing of her case pursuant to 

the first offender statute by deferring further proceedings and 

placing Dotson on probation with terms and conditions that had 

to be satisfied prior to the dismissal of her charge. 

 A defendant cannot be considered “innocent” as 

contemplated by the expungement statute when he or she 

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enters a plea of nolo contendere and the trial court finds 

that the evidence was sufficient to prove his or her 

guilt. Jackson, 255 Va. at 555-56, 499 S.E.2d at 278. 

Dotson, nevertheless, claims that her situation may be 

analogized to one in which a charge is dismissed by accord 

and satisfaction. However, in Jackson, we held that an 

accord and satisfaction “dismissal occurs without any 

determination of guilt or imposition of penalty by 

judicial authority.” Jackson, 255 Va. at 556, 499 S.E.2d 

at 279. We further held that: 

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. 

Id. at 557, 499 S.E.2d at 279. 

 Dotson pled nolo contendere and was placed on first 

offender status. The trial court was required to find evidence 

sufficient for a finding of guilt in order to defer the 

proceedings pursuant to the first offender statute, Code 

§ 18.2-251. Her charge was not dismissed until after she 

completed court-ordered obligations including the suspension of 

her operator’s license, probation, and payment of court costs. 

By statute, such obligations could not be imposed absent a 

finding of evidence sufficient to find her guilty. Thus, 

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Dotson’s charge was not “otherwise dismissed” within the 

meaning of the expungement statute, and Dotson was not entitled 

to have the charge expunged from her record. 

 We will reverse the judgment of the trial court granting 

expungement and enter final judgment for the Commonwealth. 

Reversed and final judgment.