McAfee v. Commonwealth

By Judge John J. McGrath, Jr. Petitioner has filed this action pursuant to § 19.2-392.2 of the Code of Virginia requesting an expungement of certain of his police and court records. The Petitioner is currently, a resident of the Coffeewood Correctional Center, Virginia Department of Corrections, serving a penitentiary sentence for grand larceny and hit and run felonies. Petitioner requests leave to file his petition in forma pauperis because he possesses no funds. The Court hereby grants die Petitioner’s request to proceed in forma pauperis and orders the Clerk to file the Petition for Expungement without payment of fees or costs. The Court, however, has examined the Petition and also has examined the extensive criminal record of the Petitioner. In examining the criminal record, it appears that the Petitioner has been convicted of at least thirteen felonies and eight misdemeanors running the gamut from the felony of breaking and entering and possessing and manufacturing a bomb to misdemeanors of petit larceny. The expungement statute, § 19.2-392.2(E), on its face requires the Court to conduct a hearing whenever an expungement petition has been filed (“the Court shall conduct a hearing on the petition,” Ibid.). The hearing, however, is to determine whether the existence on an individual’s record of arrests and charges for which he was either acquitted or the charges were dismissed or nolle prossed operates as a “manifest injustice” to the Petitioner. This Court believes that summary judgment on the Petition is appropriate and hereby dismisses the Petition on the grounds that an individual such as this Petitioner with an extensive and long criminal record consisting of at least twenty-one criminal convictions cannot, as a matter of law, demonstrate any “manifest [111] injustice” because his police record may contain references to a number of charges which were dismissed, nolle pressed, or on which he was acquitted. The Cleric of the Court is directed to send a copy of this Order to the Petitioner at die Coffeewood Correctional Center and to the Commonwealth’s Attorney for Rockingham County.