
    CIRCUIT COURT OF FAIRFAX COUNTY
    Kathleen C. Galdo v. Commonwealth of Virginia
    August 5, 1997
    Case No. (Chancery) 150023
   By Judge Dennis J. Smith

The facts in this case are undisputed. The Petitioner, Kathleen C. Galdo, was arrested on June 13, 1994, for trespassing, as she was in a public park afterpermissible hours. Ms. Galdo was i B years and 3 months old when this occurred. She appeared in Fairfax General District Court on July 3,19%, and pleaded guilty, whereupon, pursuant to § 19.2-303.2, Judge Kimble deferred entry of a finding of guilt for a period of six months with die charge to he dismissed if there were no further violations of law by Ms. Galdo. On January 3,1997, die charge was dismissed. On June 11,1997, she filed the Petition for Expungement which is now before die court The case was heard on July 23, 1997, at which time the Commonwealth appeared and opposed expungement

The Court has considered the arguments of both the Petitioner and tire Commonwealth. Section 19.2-392.2 provides for expungement of police and court records where a person has been acquitted, pardoned for the commission of a crime for which he has been unjustly convicted, or where a nolle prosequi has been taken or the charge has been “otherwise dismissed.” There was no acquittal, pardon, or nolle prosequi in this case, therefore tire only question is whether a dismissal pursuant to § 19.2-303.2 is “otherwise dismissed” under the statute.

The scope of the “otherwise dismissed” phrase in §19.2-392.2 was addressed by the Virginia Supreme Court in Gregg v. Commonwealth, 227 Va. 504 (1984). In the Gregg case, the Petitioner moved for expungement of an arrest record in a case which had been dismissed pursuant to § 18.2-251, which authorizes the court to place first time drag possession offenders on probation, defer entry of a finding of guilt, and ultimately dismiss the charge upon successful completion of probation conditions. In Gregg, Justice Compton analyzed the legislative intent behind the expungement statute and cited § 19.2-392.1 which states that “the chapter is intended to protect innocent persons.” He went on to opine that § 18.2-251 is available only when die defendant has pleaded guilty or die court finds die defendant guilty, and in either situation die defendant is not an "innocent person” who comes within the protection of the expungement statute. As in die § 18.2-251 disposition, the deferral and ultimate dismissal of proceedings under § 19.2-303.2 is only available where diere is a plea of guilty or if the facts found by the court would justify a finding of guilt Additionally, it must be noted that in die undertying case Ms. Galdo pleaded guilty in the District Court. Even though this situation may work a hardship on the defendant by having a youthful indiscretion follow her throughout her life, the court’s ability to rewrite history by expunging criminal records is derived only through legislative authorization, and in Gregg the Virginia Supreme Court clearly held that authority to be limited to instances where the defendant is factually innocent of the original charge. The situation is indistinguishable from the Gregg case, and the Petition is therefore denied.  