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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(s): CP-10-CR-0000692-2005
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY PELLEGRINI, J.:
FILED: August 18, 2021
Because the Commonwealth did not meet its burden of proving that Levi
Rudy Troyer Jr. (Troyer) lost the right to have his charges expunged, I
respectfully dissent. According to Commonwealth v. Lutz, 788 A.2d 993(Pa. Super. 2001), and Commonwealth v. Hanna, 964 A.2d 923, 929 (Pa.
Super. 2009), expungement was properly denied only if the trial court first
ascertained from the record that (a) the Commonwealth could have proven
that Troyer committed the dropped counts, and (b) Troyer validly waived the
right to seek expungement of the dropped counts as a condition of his plea.
The trial court made neither finding, so it erred in denying expungement
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* Retired Senior Judge assigned to the Superior Court.
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without addressing the factors outlined in Commonwealth v. Wexler, 431
A.2d 877 (Pa. 1981).
The Commonwealth laid a sparse record concerning the circumstances
of Troyer’s plea negotiation. In 2004, when he was 19, Troyer and his 17-
year-old friend broke into a storage shed at a campsite to take two quad bikes,
fishing equipment and some tools. Police soon thereafter arrested the two
young men, and Troyer was charged with burglary, criminal conspiracy, theft
by unlawful taking and criminal mischief. Troyer had a prior record score of
zero.
In 2005, Troyer negotiated with the Commonwealth to plead guilty to
the theft count. The plea form shows that the “remaining” counts were
“dismissed,” but the form does not indicate why dismissals were entered. The
record contains no transcript of the plea colloquy, no stipulated facts
supporting the guilty plea to theft, and no clarification of any sort as to the
understood significance of a dismissal for the purposes of expungement.
Troyer petitioned to expunge the remaining charges from his record 14 years
after his plea was entered and the petition was denied.1
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1 The Criminal History Record Information Act provides that “[c]riminal history
record information shall be expunged in a specific criminal proceeding when
. . . a court order requires that such nonconviction data be expunged[.]” 18
Pa.C.S. § 9122 (emphasis added).
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The trial court and the majority found it proper to deny Troyer’s request
on the ground that Lutz bars expungement as a matter of law when charges
are dismissed as part of a guilty plea, even if the Wexler factors for
expungement are satisfied. I disagree with the majority because Lutz does
not restrict a trial court’s discretion to grant expungement in that manner.
Rather, it holds that denying expungement can be appropriate if the record
establishes that doing so would enforce a negotiated term of a plea
agreement.
We explained in Lutz that a negotiated plea is sometimes analogous to
a contractual arrangement wherein a defendant may plead guilty in exchange
for the dismissal of charges that could otherwise be proven if taken to trial. A
defendant might be induced to enter the agreement with “the understanding
of all parties . . . that the [dismissed] charges could never be revived.” Lutz,
788 A.2d. at 999. The Lutz panel reasoned, then, that if a defendant could
seek expungement after waiving it pursuant to a plea agreement, he would
“receive more than he bargained for.” Id. at 1001. The trial court’s denial of
expungement was affirmed because it enforced the bargain struck between
the defendant and the Commonwealth.
It was critical to the Lutz holding that the Commonwealth was “fully
prepared to proceed against [the defendant] on all charges at trial, and [the
defendant] admit[ted] to facts that could essentially constitute culpability for
the dismissed charges.” Id. Lutz, therefore, rests on a distinction between
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a charge being nolle prossed for lack of sufficient evidence and a provable
charge being dismissed purely as consideration for the defendant’s plea on
another count. See generally id.Subsequently, in Hanna, we found that Lutz did not preclude
expungement when the Commonwealth had failed to produce the contractual
plea terms that were at issue. The record contained no transcript of the plea
colloquy, no sworn testimony regarding the plea, and no “clear recitation of
the agreement, if any, between Appellant and the Commonwealth.” Hanna,
964 A.2d at 928. The Commonwealth also failed to show it could have proven
the dropped charges. See id. Accordingly, we held in Hanna that the
Commonwealth had not carried its heavy burden of proving with “clear and
convincing evidence that Lutz applies.” Id.The facts in this case, like in Hanna, do not preclude expungement.
Troyer pleaded guilty to theft, and the predicate facts needed to prove that
that offense did not establish the commission of the other charged counts
(burglary, criminal conspiracy to commit burglary and criminal mischief).
Again, as in Hanna, the Commonwealth did not identify any evidence it could
have used to prove Troyer’s guilt of the dropped offenses. Moreover, there is
no evidence that Troyer and the Commonwealth agreed that those dismissed
counts could never be revived or that Troyer would forever be precluded from
expunging the dismissed counts from his record as a condition of the plea.
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By misconstruing Lutz and denying expungement on these facts, the
trial court improperly relieved the Commonwealth of its heavy burden of
affirmatively justifying why Troyer’s petition to expunge his arrest record
should be denied. See Hanna, 964 A.2d at 929 (holding that the
Commonwealth must prove Lutz applies with “clear and convincing
evidence”); see also Commonwealth v. A.M.R., 887 A.2d 1266 (Pa. Super.
2005) (the Commonwealth “always” has the burden “to demonstrate why an
arrest record should be retained.”) (citing Commonwealth v. Maxwell, 737
A.2d 1243, 1244 (Pa. Super. 1999)). To remedy that abuse of discretion, I
would vacate the trial court’s order and remand for a Wexler hearing at which
the Commonwealth would bear the burden of showing by clear and convincing
evidence why expungement is improper.
Accordingly, I respectfully dissent.2
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2 While not central to my dissent, I fully agree with the concurrence in Hanna,
in which Judge Klein explained why distinguishing a nolle prosequi and a
dismissal of charges is inconsistent with binding precedent, as well as “the
real world of a criminal courtroom[.]” 964 A.2d at 929 (Klein, J., concurring)
(discussing In re Pflaum, 451 A.2d 1038 (Pa. Super. 1982);
Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997); Commonwealth v.
Rodland, 871 A.2d 216 (Pa. Super. 2005); and Commonwealth v. A.M.R.,
887 A.2d 1266 (Pa. Super. 2005)).
Further, barring expungement in the manner contemplated by the majority
would seem to violate the notice requirements attached to waivers of
constitutional rights, including the expungement of nonconviction data. See
A.M.R., 887 A.2d at 1268 (expungement is “an adjunct of due process”).
Unless it is shown that a defendant was given notice of that right, waiver at
the plea stage is invalid. See Commonwealth v. Scarborough, 421 A.2d
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147 (Pa. 1980) (holding that when a constitutional right is waived, the
Commonwealth must show by a preponderance of the evidence that waiver
was knowing, intelligent, and voluntary). This is true whether a count is nolle
prossed or dismissed because there is no constitutional or statutory basis for
that distinction. See e.g., 18 Pa.C.S. § 9122 (allowing expungement of
nonconviction data as to any type of final disposition); Id. at § 9122.2(a)(2)
(recent Clean Slate legislation mandating “limited access” of criminal history
record information as to charges resulting in “any final disposition other than
a conviction”); Id. at § 9102 (including “charge dismissed” in the definition of
a final disposition).
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