COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Fulton and Ortiz

ANTHONY MCFADDEN

MEMORANDUM OPINION* BY

v. Record No. 0312-23-1 JUDGE DANIEL E. ORTIZ

APRIL 16, 2024

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Kevin M. Duffan, Judge

(Alafia Sharpe; Legal Aid Society of Eastern Virginia, on brief), for 

appellant. Appellant submitting on brief.

(Colin D. Stolle, Commonwealth’s Attorney; Andre J. Rosenberg, 

Assistant Commonwealth’s Attorney, on brief), for appellee. 

Appellee submitting on brief.

Anthony McFadden petitioned the Circuit Court of the City of Virginia Beach for 

expungement of his 2016 arrest for attempting to possess a firearm after conviction of a nonviolent 

felony. Seeking expungement under the provisions of Code § 19.2-392.2(A), McFadden asserted 

that the charge was nolle prossed and that the “continued existence and possible dissemination of 

information relating to the arrest” “causes or may cause circumstances which constitute a manifest 

injustice to” him. The Commonwealth opposed the petition, contending that, considering 

McFadden’s existing criminal record, no circumstances “would constitute a manifest injustice” to 

him from the continued existence or possible dissemination of information relating to the arrest. 

Following a hearing, the circuit court denied the petition for expungement, and then, after a second 

hearing, denied McFadden’s motion to reconsider. McFadden argues that the circuit court erred in 

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
- 2 -

denying his petition and his motion to reconsider its decision. The parties waived argument in this 

case. Code § 17.1-403(ii); Rule 5A:28(e). Finding that the circuit court abused its discretion by 

applying the incorrect standard in evaluating McFadden’s expungement petition, we reverse and 

remand for further proceedings. 

BACKGROUND

We note as a preliminary matter the odd procedural posture of this case. No transcript 

was prepared based on the circuit court’s November 15, 2022 hearing on McFadden’s petition. 

Instead, we rely on a statement of facts filed by McFadden and signed by the circuit court.

1

 

Although the record contains a transcript from the February 15, 2023 hearing on McFadden’s 

motion to reconsider, that transcript is not properly before us. 2 

1

“A written statement of facts, testimony, and other incidents of the case becomes a part 

of the record when” it is filed with the clerk of the circuit court within 60 days after entry of the 

judge’s final order, delivered to opposing counsel, and then signed by the judge. Rule 5A:8(c). 

“Any party may object to a . . . written statement on the ground that it is erroneous or 

incomplete” by filing an objection with the clerk before the latter of 15 days after the statement 

of facts is filed or 10 days after the notice of appeal is filed. Rule 5A:8(d). Upon receipt of such 

an objection, the judge has 10 days to overrule the objection or correct the statement of facts 

before signing it. Id. “The judge’s signature on a transcript or written statement, without more, 

constitutes certification that the procedural requirements of this Rule have been satisfied.” Id. 

The Commonwealth on appeal notes that it emailed McFadden’s counsel before the 

statement of facts was filed with the circuit court, noting its exception to the final paragraph of 

the statement of facts. But the Commonwealth does not allege that it submitted a timely 

objection to the circuit court, and the record reflects no such objection. Further, the judge’s

signature on the statement of facts is enough to certify compliance with Rule 5A:8. Therefore, 

we rely upon the statement of facts in its entirety in evaluating this appeal.

2 By the time of that hearing, the circuit court had lost jurisdiction over the matter 

because more than 21 days had passed since it entered final judgment on January 17, 2023. See 

Rule 1:1(a) (“All final judgments, orders, and decrees . . . remain under the control of the trial 

court and may be modified, vacated, or suspended for twenty-one days after the date of entry, 

and no longer.”). Thus, the circuit court had no authority to reconsider its denial of the petition 

for expungement, and we do not rely on the proceedings in the reconsideration hearing in 

evaluating McFadden’s appeal. See Minor v. Commonwealth, 66 Va. App. 728, 743 (2016) 

(noting that this Court lacks jurisdiction to consider appeals from orders over which the circuit 

court had no jurisdiction).
- 3 -

Based on the facts in the record, in 2016, McFadden was arrested for attempted 

possession of a firearm after conviction of a nonviolent felony. That charge was concluded with 

a nolle prosequi. McFadden’s record also includes a few out-of-state convictions: a 2001 felony 

drug conviction in Connecticut, which was “provisional[ly] pardon[ed]” in 2009; two 

misdemeanor drug convictions in New York from 1986 and 1987; and a felony drug conviction 

in New York from 1997. 

Between 2009 and 2021, McFadden worked successfully at Home Depot, but he lost his 

job due to an injury. Afterward, McFadden applied for numerous jobs, including with Amazon, 

Walmart, and other similar companies, but he was unable to obtain employment. As a result of 

his unemployment, McFadden faced financial hardship, including an inability to pay rent or 

purchase food without government assistance. Most employers who declined to hire him did not 

provide specific reasons for his rejection. One rejection involved “a dispute regarding his 

commercial driver’s license.” Asserting that his 2016 arrest created a barrier to being able to 

regain employment and maintain “a good lifestyle,” McFadden applied for expungement under 

Code § 19.2-392.2(A). 

Following a hearing, the circuit court found that McFadden failed to show that the 

existence of the nolle prossed felony charge on his record caused or might cause circumstances 

that could constitute manifest injustice to him. The court found no “direct connection with the 

felony charge” and McFadden’s inability to gain employment. Thus, in a January 17, 2023 

order, the circuit court denied the petition for expungement. 

McFadden moved for reconsideration of the circuit court’s decision, and the court 

conducted a hearing on the motion on February 15, 2023, more than 21 days after entry of the 

court’s final order. The circuit court denied the motion to reconsider, but entered no order 

containing this ruling. McFadden appeals.
- 4 -

DISCUSSION

“[W]e generally review a trial court’s decision to grant or deny expungement for abuse of 

discretion.” Obregon v. Commonwealth, 75 Va. App. 582, 586 (2022). However, that discretion 

is limited by the proper application of Code § 19.2-392.2, Virginia’s expungement statute. See 

id. 

“[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).” Williams v. Commonwealth, 302 Va. 

172, 173 (2023) (alterations in original) (quoting 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.’” Id. at 173-74 (alteration in original) (quoting Code § 19.2-392.2(A)(2)). After 

receiving relevant information from the Central Criminal Records Exchange concerning the 

fingerprints submitted by the petitioner as required by statute, see Code § 19.2-392.2(E), the 

circuit court

shall conduct a hearing on the petition. If the court finds that the 

continued existence and possible dissemination of information 

relating to the arrest of the petitioner causes or may cause

circumstances which constitute a manifest injustice to the 

petitioner, it shall enter an order requiring the expungement of the 

police and court records, including electronic records, relating to 

the charge. Otherwise, it shall deny the petition.

Code § 19.2-392.2(F) (emphasis added).

“[I]n using the word ‘may’” in Code § 19.2-392.2(F), “the General Assembly ‘plainly

signaled that a petitioner need not show actual prejudice.’” Obregon, 75 Va. App. at 587 

(quoting A.R.A. v. Commonwealth, 295 Va. 153, 161 (2018)). “[T]he policy goal of 

expungement [i]s to remove the ‘hindrance to an innocent citizen’s ability to obtain employment, 
- 5 -

an education and to obtain credit.’” Id. (quoting A.R.A., 295 Va. at 161). “Because a citizen 

with an expungable record ‘occupies the status of innocent,’ even a ‘reasonable possibility’ of 

such hindrance can be ‘a basis of a finding of manifest injustice.’” Id. (quoting A.R.A., 295 Va. 

at 161-62). Therefore, “an expungement petitioner only need[s] to establish ‘a reasonable 

possibility of manifest injustice.’” Id. (quoting A.R.A., 295 Va. at 161). The statutory standard is 

“forgiving,” thereby restricting a judge’s discretion to deny an expungement petition. A.R.A., 

295 Va. at 160. Though courts should not favor “fantastical or exaggerated assertions of a 

potential adverse impact,” even “a reasonable fear” of a negative impact on career advancement 

or other prospects is sufficient to compel an expungement under the statute. Id. at 162-63.

Although “the ‘manifest injustice’ standard is permissive, . . . [a] person with a lengthy 

unexpungeable criminal record will generally stand on a different footing with respect to 

showing a possible ‘manifest injustice.’” Id. at 162. Importantly, a person with a prior criminal 

history still “occupies the status of innocent” in expungement matters. See Obregon, 75 

Va. App. at 587 (quoting A.R.A., 295 Va. at 161). However, as the Supreme Court has noted, 

“[f]or such a person, even if an isolated arrest record is expunged, the remaining criminal history 

remains available to prospective employers and others” and expungement “will yield no tangible 

benefit to the petitioner.” A.R.A., 295 Va. at 162. By similar logic, expungement may yield 

more significant tangible benefits to petitioners with older criminal histories, given the likely 

reality that reviewing employers and educators may weigh newer criminal charges more heavily 

than older records. The seriousness of both the expungable offense and the prior criminal 

charges, and any subsequent clemency actions are also relevant considerations. For petitioners 

whose previous charges have been addressed through clemency, whose prior criminal history is 

less serious, or whose expungable charges are more serious, expungement is more likely to offer 

protection “from . . . unwarranted damage,” as intended by the legislature. See Code 
- 6 -

§ 19.2-392.1. Additionally, the text of Code § 19.2-392.2 is forward-looking—requiring courts 

to engage in a case-by-case analysis, based not only on a person’s past, but also on their future 

educational, vocational, or other goals. See A.R.A., 295 Va. at 160, 163. Ultimately, “the 

General Assembly intended generous application of this remedial statute.” Id. at 165 (Lemons, 

C.J., concurring in the result).

Here, the circuit court “denied [McFadden’s] petition on the basis that [McFadden] failed 

to show that the existence of a nolle prossed felony charge caused or might cause circumstances 

which could constitute a manifest injustice,” apparently applying the correct statutory standard. 

However, the court elaborated, stating that “it did not find that there was a direct connection with 

the felony charge and [McFadden]’s inability to gain employment.” (Emphasis added). As this 

Court noted in Obregon, “[a] trial court applies the law incorrectly when it requires an 

expungement petitioner to prove actual manifest injustice, rather than a reasonable possibility of 

manifest injustice.” 75 Va. App. at 584. Similarly, the circuit court here erred in requiring 

McFadden to prove a “direct connection” between his nolle prossed felony charge and his 

challenges in finding work, rather than requiring only “a reasonable possibility of manifest 

injustice.” A.R.A., 295 Va. at 161. In A.R.A., the Supreme Court emphasized that a “reasonable 

fear” that past charges had impacted or would impact the petitioner’s employment and education 

prospects was sufficient, even if the petitioner had “not shown actual adverse effects on her 

employment up to this point.” Id. at 163. Accordingly, we remand to the circuit court for 

reconsideration, applying the proper statutory standard to the facts of McFadden’s case.3

3 McFadden also argues that the circuit court erred in denying his motion to reconsider. 

Because we find that the circuit court abused its discretion by applying the incorrect standard in 

issuing its final order, we need not reach McFadden’s second assignment of error. Further, as 

noted above, the circuit court lacked authority to reconsider its denial of the petition for 

expungement, and we may thus not rule on it on appeal. See Rule 1:1(a) (limiting a trial court’s 

jurisdiction to 21 days following the entry of a final order); Minor, 66 Va. App. at 743 (noting 
- 7 -

CONCLUSION

Because the circuit court abused its discretion by requiring McFadden to prove a “direct 

connection” between his employment difficulties and his unexpunged felony charge, we reverse 

and remand for the circuit court to review McFadden’s petition to consider whether he faces “a 

reasonable possibility of manifest injustice” because of the nolle prossed 2016 charge which 

remains on his record.

Reversed and remanded.

that this Court lacks jurisdiction over appeals from orders entered when the circuit court lacked 

jurisdiction).