Com. v. Troyer, L. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEVI RUDY TROYER, JR. :
:
Appellant : No. 1080 WDA 2020
Appeal from the Order Entered September 11, 2020
In the Court of Common Pleas of Butler County Criminal Division
at No: CP-10-CR-0000692-2005
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: August 18, 2021
Levi Rudy Troyer, Jr. (Appellant) appeals from the order denying his
petition for expungement of prior criminal charges. We affirm.
In April 2005, the Commonwealth charged Appellant with theft by
unlawful taking,1 as well as burglary, criminal conspiracy, and criminal
mischief.2 The Commonwealth alleged that in December 2004, Appellant and
a juvenile co-conspirator broke into and stole items from a storage trailer.
On July 13, 2005, the parties entered into a negotiated plea agreement,
which is contained in the certified record. Appellant agreed to plead guilty to
one count of theft in exchange for the Commonwealth dismissing the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3921(a).
2 See id. §§ 3502(a), 903(a), 3304(a)(1). We reference these charges
collectively as “the remaining charges.”
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remaining charges and recommending a sentence of 18 months of
intermediate punishment (IP). See Plea Agreement, 7/13/05 (stating the
remaining charges would be “dismissed”). The plea agreement did not
address expunction of the remaining charges.
The trial court accepted Appellant’s guilty plea to theft, and the
remaining charges were dismissed. The trial court sentenced Appellant to 18
months of IP and imposed a $300 fine.
On August 23, 2019, Appellant filed a petition seeking expungement of
his arrest record for the remaining charges. The Commonwealth filed an
objection in opposition on February 27, 2020 and requested a hearing. The
Commonwealth argued that under this Court’s decision in Commonwealth v.
Lutz, 788 A.2d 993 (Pa. Super. 2001), Appellant’s arrest record could not be
expunged because the Commonwealth dismissed the remaining charges
pursuant to the plea agreement. See id. at 1000 (“[W]here charges are
dismissed pursuant to a plea agreement, those charges are not eligible
for expunction, as to destroy them would obscure the true circumstances
under which [the accused] has been convicted.” (emphasis added)); see also
id. at 999 (distinguishing dismissal of charges from a nolle prosequi and
stating: “[i]n the instant case, charges were dismissed, and the understanding
of all parties was apparently that the charges could never be revived, which
is quite a different situation than a Nolle Prosequi.”).
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On May 29, 2020, the trial court convened a hearing on the
expungement petition. The parties presented oral argument rather than
testimony. Appellant’s counsel argued:
[A]lthough Lutz is valid, the [trial c]ourt in considering whether
to expunge a dismissed charge[ should conduct an evidentiary
hearing] or look at the evidence and weigh the factors between
the benefit to [Appellant] in getting his arrest record expunged
and the detriment to the Commonwealth.
N.T., 5/29/20, at 5.
By order entered September 11, 2020, the trial court denied the
expungement petition. Appellant timely filed a motion for reconsideration on
September 20, 2020, asserting the trial court erred in its application of the
law. The trial court denied Appellant’s motion two days later.
Appellant timely appealed. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant presents three questions for review:
A. Whether trial court abused its discretion or committed an error
of law by relying solely on Commonwealth v. Lutz, 788 A.2d
993 (Pa. Super. 2001) in deciding to deny [Appellant’s] Petition
for Expungement?
B. Whether the trial court abused its discretion or committed an
error of law by failing to place the burden of proof on the
Commonwealth to prove, by clear and convincing evidence, why
[Appellant’s] arrest record should not be expunged[?]
C. Whether the Commonwealth satisfied its burden of
affirmatively justifying why the arrest record of [Appellant] should
not be expunged?
Appellant’s Brief at 4.
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As Appellant’s issues are related, we address them together. It is well-
settled that we “review the trial court’s denial of a motion for expunction for
an abuse of its discretion.” In re P.M., 230 A.3d 454, 456 (Pa. Super. 2020)
(citation and brackets omitted).
In Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), the
Pennsylvania Supreme Court held that the defendant was entitled to have his
arrest record expunged where the charges had been nol prossed. Id. at 879-
81. The Court detailed a non-exhaustive list of factors a trial court should
consider, stating the court “must balance the individual’s right to be free from
harm attendant to maintenance of the arrest record against the
Commonwealth’s interest in preserving such records.” Id. at 879. When the
Wexler balancing test applies, the Commonwealth is required “to bear the
burden of affirmatively justifying why the arrest record should not be
expunged.” Commonwealth v. Maxwell, 737 A.2d 1243, 1244 (Pa. Super.
1999) (citing Wexler, 431 A.2d at 880).
This Court subsequently discussed the interplay of Lutz and Wexler,
stating:
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. at 1000. This
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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.
at 999. 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.
at 1000-01. Furthermore, “In the absence of an agreement as to
expungement, [a]ppellant 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 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)[; see also id. at 929 (“[T]he Commonwealth bears the
burden of proving . . . with clear and convincing evidence that
Lutz applies.” (footnotes omitted)).]
Commonwealth v. V.G., 9 A.3d 222, 225-26 (Pa. Super. 2010) (emphasis
added, citations modified).
Here, Appellant argues:
The Commonwealth failed to meet its burden that Lutz
applies. As such, the trial court was required to hold a Wexler
hearing and consider the competing interests between the parties
as to the benefits and detriments of expungement.
***
[Appellant] does not deny that Lutz is good law, but it [is]
not the only case law applicable to this matter. See Wexler,
supra; see also Hanna, supra; Matter of Pflaum, supra. A
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proper analysis of these matters requires examination of several
other cases and, ultimately, an examination of the facts and
circumstances surrounding the terms of the plea agreement and,
possibly, the interests of the parties.
Appellant’s Brief at 10, 11-12 (citations modified); see also id. at 12-15
(discussing cases). Appellant asserts the Commonwealth had the burden to
prove that Lutz applies, see Hanna, supra, and argues it failed to meet its
burden. See Appellant’s Brief at 18-21. We disagree.
The trial court properly found that Lutz applies and is controlling.
Appellant did not seek expungement of charges that were nol prossed due to
lack of evidence or for which he was acquitted. Cf. Wexler, supra. Instead,
the Commonwealth dismissed the remaining charges against Appellant as part
of the plea bargain, which did not address expungement. Under these
circumstances, Appellant is not entitled to expungement. See Lutz, 788 A.2d
at 999-1000. None of the cases Appellant cites to distinguish Lutz are on
point, and contrary to Appellant’s argument, the Wexler balancing test was
not implicated, and therefore the Commonwealth had no burden to justify why
the remaining charges should not be expunged. Cf. Maxwell, supra.In sum, the trial court did not abuse its discretion because it properly
applied the law in denying Appellant’s request for expungement.
Order affirmed.
Judge Dubow joins the memorandum.
Judge Pellegrini files a dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2021
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