Com. v. Myers, J. ( 2019 )

J-S73035-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN MICHAEL MYERS :
:
Appellant : No. 770 WDA 2018
Appeal from the Order April 24, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001459-2000
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 12, 2019
Appellant, Justin Michael Myers, appeals from the order entered on April
24, 2018 in the Criminal Division of the Court of Common Pleas of Erie County
that denied his petition to expunge arrest records pertaining to a charge of
carrying a firearm without a license, 18 Pa.C.S.A. § 6106(a). We affirm.
The trial court summarized the historical facts and procedural history in
this case as follows:
In April of 2000, Appellant incurred two charges: count 1, theft
by unlawful taking movable [property] and count 2, firearms not
to be carried without a license, graded as a third-degree felony.
The alleged facts were that Appellant stole a North American
Armsa .22 Magnum Revolver Derringer from his parents’ home.
On August 23, 2000, Appellant entered a guilty plea to theft by
unlawful taking. He was sentenced to [a] period of two years of
probation. [At] count 2, firearms not to be carried without a
license, [Appellant’s charges were] nolle prossed the same date.
On August 12, 2002, Appellant was revoked from probation and
sentenced to 90 days to one year of incarceration followed by one
year of probation.
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On January 17, 2018, Appellant filed a form petition to expunge
his arrest record. The Commonwealth objected. Th[e trial c]ourt
denied Appellant’s request. Appellant filed a motion for
reconsideration [and r]equest for hearing on February 12, 2018.
A Wexler hearing was held April 23, 2018. See Commonwealth
v. Wexler, 431 A.2d 877 (Pa. 1981). After an evidentiary
hearing, an order was entered April 24, 2018, denying
expungement of Appellant’s arrest record at count 2, firearms not
be carried without a license.
Appellant filed a timely notice of appeal on May 22, 2018 and a
concise statement of matters complained of on appeal on June 6,
2018. Appellant claims it was error or abuse of discretion for
failure to apply the Wexler standards and its progeny such that
the firearms arrest record should be expunged.
Trial Court Opinion, 7/6/18, at 1-2 (superfluous capitalization omitted).
On appeal, Appellant raises the following claim for our review:
Whether the trial court committed an abuse of discretion when it
failed to correctly balance the competing interests of the Appellant
and Commonwealth in determining whether the nolle prossed
charge should be expunged.
Appellant’s Brief at 4.
This Court previously explained the principles that govern expungement
of criminal history records in Commonwealth v. V.G., 9 A.3d 222 (Pa. Super.
2010).
“The decision to grant or deny a request for expungement of an
arrest record lies in the sound discretion of the trial judge, who
must balance the competing interests of the petitioner and the
Commonwealth. We review the decision of the trial court for an
abuse of discretion.” Commonwealth v. Waughtel, 999 A.2d
623, 624-625 (Pa. Super. 2010), quoting Commonwealth v.
Hanna, 964 A.2d 923, 925 (Pa. Super. 2009). In Waughtel, we
provided a comprehensive outline of the law applicable to
expungement. Defendants in Pennsylvania have a due process
right to petition for expungement that is not dependent upon
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statutory authority. [Waughtel, 999 A.2d] at 625; see
Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981).
Where a defendant is convicted of a crime, he is not entitled to
expungement of that crime, except as outlined by 18 Pa.C.S.A.
§ 9122, which is an extensive statutory provision governing
expungement. Waughtel, supra; Commonwealth v. Maxwell,
737 A.2d 1243, 1244 (Pa. Super. 1999). “At the opposite
extreme, if the defendant is acquitted, he is generally entitled to
automatic expungement of the charges for which he was
acquitted.” Waughtel, supra at 625, citing Commonwealth v.
D.M., 695 A.2d 770 (Pa. 1997).
In the Wexler case, our Supreme Court confronted the question
of whether a defendant was entitled to have his arrest record
expunged when the charges were nol prossed because the
Commonwealth came to the conclusion that it had insufficient
evidence to prosecute the defendant. Our Supreme Court
answered in the affirmative. It first observed:
The serious harm an individual may suffer as a result of the
Commonwealth's retention of an arrest record has been set
forth in Commonwealth v. Malone, 366 A.2d 584, 587-88
(Pa. Super. 1976). Because of this potential hardship, the
Court in Malone recognized that in certain circumstances
substantive due process guarantees an individual the right to
have his or her arrest record expunged. In determining
whether justice requires expungement, the Court, in each
particular case, must balance the individual's right to be free
from the harm attendant to maintenance of the arrest record
against the Commonwealth's interest in preserving such
records. The Superior Court, in Commonwealth v. Iacino,
411 A.2d 754 (Pa. Super. 1979) (Spaeth, J., concurring)
listed several factors that should be considered in
determining the respective strengths of the Commonwealth's
and petitioner's interest in this type of case, and we cite them
here with approval:
“These (factors) include the strength of the
Commonwealth's case against the petitioner, the
reasons the Commonwealth gives for wishing to retain
the records, the petitioner's age, criminal record, and
employment history, the length of time that has elapsed
between the arrest and the petition to expunge, and the
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specific adverse consequences the petitioner may
endure should expunction be denied.”
Id. at 759. We note that this is not necessarily an exclusive
or exhaustive list; other factors may require examination in
a particular case.
Wexler, 431 A.2d at 879.
In Wexler, the trial court refused to expunge the arrest records
of two defendants who were married because the arrests were
lawful and the defendants had been bound over for trial after a
preliminary hearing. After those events, the charges against the
Wexlers were nol prossed based upon the district attorney's
conclusion that the defendants' actions did not support convictions
for the charges pending before them. Additionally, at the
expungement hearing, the Commonwealth admitted that it
dropped the cases against the defendants because it could not
prove they were guilty beyond a reasonable doubt. Our Supreme
Court stated, “We believe this fact places a heavy burden upon
the Commonwealth to present compelling evidence justifying the
retention of Mr. and Mrs. Wexler's arrest records.” Id. at 880.
Our Supreme Court reversed the trial court's refusal to expunge,
concluding that a decision to nol pros charges due to a lack of
evidence was not materially different from an acquittal. It ruled
that “if the Commonwealth does not bear its burden of proof
beyond a reasonable doubt [as in an acquittal], or admits that it
is unable to bear its burden of proof (as in the present case), the
Commonwealth must bear the burden of justifying why the arrest
record should not be expunged.” Id. It continued that the
Commonwealth therein had offered no specified, valid reason for
retaining the Wexlers' arrest records and granted them
expungement. []
The Wexler court further held that where a defendant has been
admitted to ARD with respect to criminal charges and has
successfully completed the ARD program, expungement should be
granted unless the Commonwealth produces specific, compelling
reasons for retaining the arrest record. Wexler, 431 A.2d at 880.
V.G., 9 A.3d at 223-225 (parallel citations omitted).
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This Court has acknowledged problems that arise in expunction cases
when the facts fall between a conviction, which prevents expungement, and
circumstances mandating automatic expungement, such as an acquittal or a
nol pros based upon an inability to obtain a conviction or successful completion
of ARD. See V.G., 9 A.3d at 225. We have discussed these phenomena in
the context of plea agreements.
When the defendant pleads guilty and the Commonwealth agrees
to dismiss charges as part of the plea agreement, a defendant is
normally not entitled to expungement of the dropped charges
under the Wexler factors. Commonwealth v. Lutz, 788 A.2d
993 (Pa. Super. 2001). In such a scenario, the Commonwealth
dismisses charges in connection with a plea arrangement and,
accordingly, there is no implicit or express admission that it lacks
evidence to convict a defendant of the crimes. The action of
dropping the charges is viewed as a contractual arrangement
negotiated as part of the plea bargain. Id. This situation is
contrasted with that involved in the nol pros setting, where the
Commonwealth concedes that there is insufficient evidence to
support the dismissed charges. Id. Thus, if expungement were
permitted as to charges withdrawn pursuant to a plea bargain
rather than due to a lack of evidence, there would not be an
accurate record of the agreement reached by the defendant and
the Commonwealth. Id. Furthermore, “In the absence of an
agreement as to expungement, Appellant stands to receive more
than he bargained for in the plea agreement if the dismissed
charges are later expunged.” Id. at 1001; but see
Commonwealth v. A.M.R., 887 A.2d 1266 (Pa. Super. 2005)
(where charges of theft and misapplication of entrusted property
were dropped after defendant agreed to resign from his job,
defendant's arrest record was ordered to be expunged); Matter
of Pflaum, 451 A.2d 1038 (Pa. Super. 1982) (before the district
justice, Commonwealth dropped charges of burglary, trespass,
and theft and defendant pleaded guilty to disorderly conduct;
defendant was entitled to have record of withdrawn charges
expunged). In applying Lutz and Wexler in the plea agreement
setting, we have had occasion to remand to the trial court to make
a clear record as to whether charges were nol prossed based upon
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lack of evidentiary support or whether the charges were dropped
in exchange for the plea. See Commonwealth v. Hanna, 964
A.2d 923 (Pa. Super. 2009).
V.G., 9 A.3d at 225-226.
In this case, Appellant argues that his firearms charge was nol prossed
and that expungement should be awarded under the Wexler factors. The
Commonwealth, however, argues that the firearms charge was dropped as
part of a plea agreement and not because of a lack of evidence. Thus, the
Commonwealth maintains that Wexler does not apply and expungement is
not available to Appellant.
The difficulty in Appellant's position is that he has conceded that the
factual component of the Commonwealth’s case was strong. See N.T.
Hearing, 4/23/18, at 6 (counsel acknowledging that “Appellant took the gun
while he was leaving home, turn[ed] the corner and there’s the police … [h]e
had the firearm on him”). It is thus uncontested that Appellant is not seeking
expungement of a charge that was nol prossed due to lack of evidence or for
which he was acquitted. Instead, the Commonwealth dropped the firearms
charge against Appellant as part of the plea bargaining process and the parties
made no agreement as to expungement. Under these circumstances,
Appellant is not entitled to expungement. See Lutz, 788 A.2d at 999-1000
(explaining that Commonwealth's decision to drop charges pursuant to a plea
agreement carries no implicit admission that proof is lacking); see also
Hanna, 964 A.2d at 926-927.
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Appellant no doubt presents a compelling case for expungement,
particularly if the Wexler factors were to be applied. At the time of the
underlying offenses, Appellant was in his early twenties and had certain issues
with anger. He decided to leave his parents’ home, took a gun during his
departure, but encountered police almost immediately. Ultimately, the
Commonwealth dropped the firearms charge and Appellant received
probation. Appellant served a brief period in jail after a revocation in 2002
but thereafter completed his time and paid all outstanding costs and fines. In
the nearly two decades since the underlying incidents, Appellant has acquired
a family of his own, reunited with his parents, and avoided contacts with law
enforcement. He petitioned to expunge the records relating to his firearms
offense in order to avoid further adverse employment consequences.
Appellant also points out that since he is not seeking expungement of the theft
charges, references to his involvement with a firearm will remain in his file
and, therefore, law enforcement has a reduced need to retain the challenged
arrest record. Appellant obviously makes a forceful argument that he is
entitled to relief.
Nevertheless, as the Commonwealth points out and as the record makes
clear, Appellant is not seeking expungement of charges that were nol prossed
because of a lack of evidence. Instead, he seeks expungement of charges
that were abandoned as part of plea negotiations. Under these circumstances,
we are constrained to agree with the Commonwealth that Wexler does not
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apply and that expungement is inappropriate. Thus, the trial court did not
abuse its discretion in denying Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2019
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