Published: September 10, 2012
Tags: Criminal, Hanover County Circuit Court, Judge J. Overton Harris, Virginia Circuit Courts
A defendant who was charged with stalking but who pleaded guilty to the amended charge of using profane language over a telephone is not entitled to have the stalking charge expunged, says the Hanover County Circuit Court, as the guilty plea removed defendant from the group of “innocent citizens” the legislature intends as the beneficiaries of expungement.
Defendant sought an order of expungement as to police and court records relating to three prior charges: trespass, assault and stalking. The trespass and assault charges were dismissed and an order of nolle prosequi entered. The stalking charge was amended to using profane language over a telephone, and defendant pled guilty to the amended charge. The commonwealth asserts expungement was proper as to the trespass and assault charges and only expungement of the stalking charge was in error. The commonwealth seeks an order voiding the expungement order as to the stalking charge only.
The first question is whether the holding in iiiNecaise v. Commonwealth,iii 281 Va. 666 (2011), is applicable; moreover, whether use of profane language over a telephone, Va. Code § 18.2-427, is a lesser included offense of stalking, § 18.2-60.3.
A lesser included offense is an offense which is composed entirely of elements that are also elements of the greater offense. In order for one crime to be a lesser included offense of another crime, every commission of the greater offense must also be a commission of the lesser offense. None of the elements of the use of profane language offense are required to be proven in order for an accused to be found guilty of stalking. Therefore, use of profane language is not a lesser included offense of stalking; consequently, iiiNecaiseiii is distinguished from the present case.
The commonwealth’s attorney argues the iiiNecaiseiii case should control nonetheless, specifically referring to the court’s language therein pertaining to the “legislative intent underlying the expungement statutes” as not being for the benefit of those defendants who have been found guilty. The purpose of the expungement statute is to avoid injustice to an “innocent citizen” falsely accused and unjustly convicted.
The policy and legislative intent discussed in iiiNecaiseiii appropriately inform this court’s analysis. The expungement statute’s statement of policy found in Va. Code § 19.2-392.1 clearly applies the statute to “innocent citizens.” In this instance, defendant was charged with stalking and on the very same warrant of arrest the charge was amended to use of profane language. Clearly, the court’s reasoning in iiiNecaiseiiii should provide the soundest reason in in this matter as well. Defendant pled guilty to use of profane langue and he did so by the reduction of the charge of stalking on the original warrant of arrest. To allow defendant to have the stalking charge expunged would distort the record of defendant’s conviction on the use of profane language charge because there would be no foundation left in the record to support his conviction.
Motion to void expungement, in part, is granted.
Commonwealth v. Rowe (Harris) No. CL 12001322-00, Aug. 31, 2012; Hanover County Cir.Ct.; Ramon E. Chalkley III, Comm. Att’y; Ryan H. Ash for defendant. VLW 012-8-140, 4 pp.
Very intersting.
Tucker Griffin Barnes P.C.
Charlottesville, VA (434-973-7474)
Inquire@TGBlaw.com
www.TGBLaw.com
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