Commonwealth v. Giulian v. Aplt.

[J-49-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 75 MAP 2015
:
Appellee : Appeal from the Order of the Superior
: Court at No. 906 MDA 2014 dated
: February 23, 2015 Affirming the Order
v. : of the Centre County Court of Common
: Pleas, Criminal Division, at No. CP-14-
: MD-0000836-2013 dated April 30, 2014.
VICTORIA C. GIULIAN, :
:
Appellant : ARGUED: April 6, 2016
OPINION
JUSTICE DOUGHERTY DECIDED: July 19, 2016
We consider the statutory requirements for expungement of criminal history
record information for summary convictions pursuant to 18 Pa.C.S. §9122(b)(3) and
conclude the lower courts erred in holding expungement unavailable as a matter of law
in this matter. We therefore reverse and remand.
Appellant Victoria C. Giulian, then twenty years old, was arrested on April 20,
1997, and ultimately pleaded guilty to the summary offenses of public drunkenness, 18
Pa.C.S. §5505, and harassment, 18 Pa.C.S. §2709(a)(1). At this same time, appellant
was also charged with the misdemeanor offense of disorderly conduct, 18 Pa.C.S.
§5503(a)(2), a charge later withdrawn, and the summary offense of underage drinking,
18 Pa.C.S. §6308(a), to which she pleaded guilty. Appellant was then arrested on
September 27, 1998, and pleaded guilty to the summary offense of criminal mischief, 18
Pa.C.S. §3304.
Appellant has had no arrests since September 27, 1998. On May 8, 2013,
appellant filed a petition seeking expungement of these summary convictions from her
criminal history record under Section 9122(b)(3), which provides:
(b) Generally.--Criminal history record information may be expunged
when:
* * *
(3)(i) An individual who is the subject of the information petitions the court
for the expungement of a summary offense and has been free of arrest or
prosecution for five years following the conviction for that offense.
(ii) Expungement under this paragraph shall only be permitted for a
conviction of a summary offense.
18 Pa.C.S. §9122(b)(3).1
The Commonwealth did not object to expungement of the withdrawn disorderly
conduct charge and the guilty plea conviction for underage drinking, and the record of
these charges was expunged. The Commonwealth did oppose expungement
respecting the other offenses, however. The Centre County Court of Common Pleas
granted the petition with regard to the 1998 criminal mischief conviction, but denied
expungement of the records relating to the 1997 public drunkenness and harassment
convictions. The court acknowledged appellant was “conviction free for 16 years” after
1998, but determined appellant was not entitled to expungement of the earlier
convictions because her 1998 arrest and plea meant she did not remain free of arrest or
prosecution for “at least five years following the 1997 convictions” as required by
subsection (b)(3)(i). Trial Court Opinion, 7/16/14, slip op. at 4.
1
Subsection (b) also allows discretionary expungement when an individual “reaches 70
years of age and has been free of arrest or prosecution for ten years following final
release from confinement or supervision,” 18 Pa.C.S. §9122(b)(1), or “has been dead
for three years.” 18 Pa.C.S. §9122(b)(2).
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Appellant filed an appeal to the Superior Court, which affirmed the trial court in a
brief published decision. Commonwealth v. Giulian, 111 A.3d 201 (Pa. Super. 2015).
The panel recognized penal statutes are to be strictly construed under the rule of lenity,
with ambiguities resolved in favor of the defendant. Id. at 204. However, the panel
considered the language of Section 9122(b)(3)(i) to be clear and unambiguous and held
the language supported the trial court’s reading of the term “free of arrest or prosecution
for five years following the conviction.” Id. The panel interpreted the statutory language
as requiring appellant to remain free of arrest or prosecution for “the” five years
“immediately following her conviction for the 1997 offense[s],” rather than for “any” five-
year period following those offenses. Id. (emphases in original). In the panel’s view,
the reading proffered by appellant treated as surplusage the concluding statutory
phrase, “following the conviction for that offense.” Id.Appellant filed a petition for allowance of appeal, and this Court granted review of
the following question:
Did the Superior Court commit an error of law in finding that the Petitioner
was not statutorily eligible to have her summary convictions expunged
pursuant to 18 Pa.C.S.A. § 9122(b)(3) despite the fact that Petitioner has
been free of arrest and prosecution for more than sixteen years following
the convictions, over ten years longer than the statutory requirement?
Commonwealth v. Giulian, 122 A.3d 1029 (Pa. 2015).
Appellant argues she is eligible to have the records of her 1997 summary
convictions expunged because she has been free from arrest and prosecution for more
than sixteen years following those convictions, over ten years longer than the five-year
requirement set forth in Section 9122(b)(3)(i). Appellant asserts the Superior Court
incorrectly read into the statute a requirement that the five arrest-free years be
“immediately” following the conviction sought to be expunged, when the actual text of
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the statute does not include that qualifier. Appellant claims courts should not add words
or phrases when construing a statute unless the words are “necessary for a proper
interpretation, do not conflict with the obvious intent of the statute, and do not in any
way affect its scope and operation.” Appellant’s Brief at 11, citing Commonwealth v.
Segida, 985 A.2d 871, 875 (Pa. 2009). Appellant points out the General Assembly has
used “immediately following” in other statutes when it intends to qualify timing in this
way, and thus the omission of the phrase from Section 9122(b)(3)(i) is telling.
Appellant’s Brief at 12, citing, e.g., 18 Pa.C.S. §9143 (Office of Attorney General has
power to promulgate guidelines for implementation of statute for period of “one year
immediately following the effective date of this section”).
In a second textual argument, appellant points to the absence of the definite
article “the” to circumscribe the period referenced in Section 9122(b)(3)(i); she argues
the Superior Court improperly supplied this limiting language to the statute when it
interpreted it as requiring her to remain arrest-free for “the” five years “immediately
following” the 1997 convictions. Giulian, 111 A.3d at 204. Appellant further stresses
the Legislature’s use of the present perfect tense — “has been free of arrest” —
supports her interpretation that the statute does not refer to any particular five-year
period, and that period can occur recently, as opposed to the Superior Court’s
conversion of the language, in the final paragraph of its opinion, to read “was not free of
arrest or prosecution.” Id. (emphasis added). Moreover, appellant argues, the Superior
Court’s concern that her reading renders the final phrase of the statute surplusage is
misplaced because the words “following the conviction for that offense” are necessary
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to establish the possible start date for any five-year waiting period, i.e., the period
begins after conviction for the summary offense.
According to appellant, even if Section 9122(b)(3) is ambiguous, it is a penal
statute which must ordinarily be strictly construed, see 1 Pa.C.S. §1928(b)(1), and
under the rule of lenity any ambiguity must be construed in her favor. See
Commonwealth v. Fithian, 961 A.2d 66, 74 (Pa. 2008) (if ambiguity exists in penal
statute it should be interpreted in light most favorable to accused; where doubt exists,
accused should receive benefit of doubt). In the alternative, appellant argues
exceptions to remedial legislation — such as this expungement provision — are
narrowly construed against the Commonwealth, because such a statute should be
“construed liberally to effectuate its humanitarian objectives.” Appellant’s Brief at 22,
quoting School Dist. of Phila. v. WCAB, 117 A.3d 232, 242 (Pa. 2015).
Finally, appellant argues the General Assembly intended to allow rehabilitated
individuals like herself to secure expungement of their minor summary citations, in order
to achieve better access to jobs or housing, and so, to the extent there is an ambiguity,
this Court should interpret the statute with this particular legislative intent in mind.2
2
Amici curiae Juvenile Law Center, Homeless Advocacy Project, Defender Association
of Philadelphia, X-Offenders for Community Empowerment, Pennsylvania Prison
Society, Broad Street Ministry, Impact Services, and Resources for Human
Development filed a brief in support of appellant, expanding on this particular argument
involving the consequences of a narrowing interpretation of the availability of
expungement. Amici posit that Section 9122(b)(3)(i) is ambiguous, and should be
construed in favor of criminal defendants like appellant with low-level offenses, so they
can overcome the substantial barriers created by a criminal record to finding
employment or housing, or pursuing opportunities for higher education. Amici note
research indicates individuals who are permitted to have their criminal records
expunged or sealed are more likely to find jobs and less likely to be rearrested. Amici
argue it is in the best interests of the citizens of the Commonwealth to allow low-level
(continuedN)
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Appellant claims the Superior Court’s interpretation will produce absurd and
unreasonable results, as it has here — where the record of the more recent summary
citation was expunged while the older ones remain intact — and this cannot be the
intent of the Legislature. See, e.g., 1 Pa.C.S. §1922(1) (presumption that General
Assembly does not intend absurd, impossible or unreasonable result); Banfield v.
Cortes, 110 A.3d 155, 168 (Pa. 2015) (same).
Echoing the interpretation of the courts below, the Commonwealth responds that
appellant’s 1997 summary convictions cannot be expunged because she failed to
remain free of arrest or prosecution for five years, due to her subsequent 1998 arrest
and conviction. The Commonwealth claims the statute is clear and unambiguous in its
meaning: “a defendant must be arrest or prosecution free for five years immediately
following the conviction for the offense she wishes to expunge.” Appellee’s Brief at 8.
The Commonwealth agrees Section 9122(b)(3) is a penal statute, see id. at 9, but, like
the Superior Court below, claims it is free from ambiguity and so the rule of lenity does
not mandate a reading in appellant’s favor. See Giulian, 111 A.3d at 204. The
Commonwealth asserts the statute makes plain the Legislature’s intention that a
conviction for a summary offense, no matter how old, can never be expunged if there is
another conviction within five years of that first offense; under such circumstances, “the
opportunity to expunge the initial summary offense disappears upon a defendant’s
subsequent arrest or prosecution and the focus turns to the new, subsequent offense.”
Appellee’s Brief at 10.
(Ncontinued)
offenders “to have a fair shot at becoming contributing members of society.” Amicus
Curiae Brief at 5.
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The Commonwealth rejects what it characterizes as appellant’s “public policy”
argument that the statute should be interpreted to give her “a break through
expungement.” Id. at 13. Instead, according to the Commonwealth, the humanitarian
goals of the Legislature are achieved under the statute because a defendant can “rid[ ]
herself of the stigma associated with a summary offense conviction if she can simply
remain arrest-free for five years following that conviction.” Id. at 14. Otherwise, the
Commonwealth claims, a defendant receives a “volume discount” — she could “commit
a years-long summary conviction crime-spree, end the spree, then apply for
expungement” five years after the last offense. Id. at 17.
Finally, the Commonwealth argues expungement is left to the discretion of the
trial court, even after both prongs of subsection (b)(3) are met, and while the court was
thus within its discretion to expunge the 1998 offense, the Commonwealth posits there
was no abuse of discretion in denial of expungement of the 1997 offense, where
appellant was not eligible under subsection (b)(3). Id. at 17-19.
The question presented is one of statutory interpretation and is therefore a
question of law; our standard of review is de novo, and our scope of review is plenary.
Fithian, 961 A.2d at 71 n.4. We have stated “[j]udicial analysis and evaluation of a
petition to expunge depend upon the manner of disposition of the charges against the
petitioner. When an individual has been convicted of the offenses charged, then
expungement of criminal history records may be granted only under very limited
circumstances that are set forth by statute.” Commonwealth v. Moto, 23 A.3d 989, 993
(Pa. 2011), citing, inter alia, 18 Pa.C.S. §9122. At the same time, the permissive
language of Section 9122(b) — providing “[c]riminal record history may be expunged” —
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clearly vests discretion in the court to expunge a qualifying record. See also
Commonwealth v. Wallace, 97 A.3d 310, 317 (Pa. 2014) (decision to grant or deny
petition for expungement lies in sound discretion of trial court); Commonwealth v.
Wexler, 431 A.2d 877, 879 (Pa. 1981) (in determining whether to grant expungement
court must balance individual's right to be free from harm attendant to maintenance of
arrest record against Commonwealth's interest in preserving such record).3 Subsection
(b)(3)(i) then includes the relevant qualifying language regarding timing: the individual
seeking expungement must be “free of arrest or prosecution for five years following the
conviction for that offense.”
In matters involving statutory interpretation, the Statutory Construction Act directs
courts to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S.
§1921(a). A statute’s plain language generally provides the best indication of legislative
intent. See, e.g., McGrory v. Dep’t of Transp., 915 A.2d 1155, 1158 (Pa. 2007);
Commonwealth v. Gilmour Mfg. Co., 822 A.2d 676, 679 (Pa. 2003). In construing the
language, however, and giving it effect, “we should not interpret statutory words in
isolation, but must read them with reference to the context in which they appear.”
3
It appears neither Wallace nor Wexler arose out of petitions for expungement filed
pursuant to Section 9122; expungement was sought on different grounds. Wallace, 97
A.3d at 312-14 (inmate with “vast criminal history” of serious offenses sought
expungement and other relief on generic due process grounds; no discussion of
statutory grounds); Wexler, 431 A.2d at 879 (expungement petitions denied in January
1978, prior to 1979 adoption of statutory grounds for expungement). We cite Wexler
because it sets forth useful factors for consideration by a court presented with a
discretionary expungement request, and because it would appear the Wexler factors
still have some force within the context of the statutory expungement scheme. See,
e.g., Moto, 23 A.3d at 1002 (Saylor, J., dissenting, joined by Castille, C.J., and Orie
Melvin, J.) (“[T]here is a colorable argument that the General Assembly intended to
codify, rather than displace, this common law [expungement] scheme when it enacted
Section 9122(a)(2) of the [Criminal History Record Information Act].”).
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Roethlein v. Portnoff Law Assocs, Ltd., 81 A.3d 816, 822 (Pa. 2013), citing Mishoe v.
Erie Ins. Co., 824 A.2d 1153, 1155 (Pa. 2003). Accord Commonwealth v. Office of
Open Records, 103 A.3d 1276, 1285 (Pa. 2014) (statutory language must be read in
context; in ascertaining legislative intent, every portion is to be read together with
remaining language and construed with reference to statute as a whole).
The United States Supreme Court also takes a contextual approach in assessing
the plain language of statutes and in determining if an ambiguity exists. See generally
King v. Burwell, __ U.S. __, __, 135 S.Ct. 2480, 2489 (2015) (“If the statutory language
is plain, we must enforce it according to its terms. But oftentimes the meaning — or
ambiguity — of certain words or phrases may only become evident when placed in
context. So when deciding whether the language is plain, we must read the words in
their context and with a view to their place in the overall statutory scheme.” (internal
quotation marks and citations omitted)); Yates v. United States, __ U.S. __, __, 135
S.Ct. 1074, 1081-82 (2015) (“‘[T]he plainness or ambiguity of statutory language is
determined [not only] by reference to the language itself, [but as well by] the specific
context in which that language is used, and the broader context of the statute as a
whole.’ Ordinarily, a word’s usage accords with its dictionary definition. In law as in life,
however, the same words, placed in different contexts, sometimes mean different
things.” (internal citations omitted)).
When a statute is ambiguous, we may go beyond the relevant texts and look to
other considerations to discern legislative intent. “Where statutory or regulatory
language is ambiguous, this Court may resolve the ambiguity by considering, inter alia,
the following: the occasion and necessity for the statute or regulation; the circumstances
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under which it was enacted; the mischief to be remedied; the object to be attained; the
former law, if any, including other statutes or regulations upon the same or similar
subjects; the consequences of a particular interpretation; and administrative
interpretations of such statute.” Freedom Med. Supply, Inc. v. State Farm Fire & Cas.
Co., 131 A.3d 977, 984 (Pa. 2016), citing 1 Pa.C.S. §1921(c).
The parties here argue Section 9122(b) is clear and unambiguous and that its
plain terms support their respective readings – which are squarely opposed. When the
parties read a statute in two different ways and the statutory language is reasonably
capable of either construction, the language is ambiguous. Id. Unlike the
Commonwealth, we believe this provision is, at a minimum, ambiguous. Appellant’s
textual points concerning the language of the statute are certainly plausible, so much
so, in fact, the Superior Court resorted to adding words to the statute in order to dismiss
appellant’s argument. For example, the statute does not include the definite article “the”
or the word “immediately” in order to circumscribe the time period referenced in Section
9122(b)(3)(i); the Superior Court itself supplied this limiting language to the statute by
concluding a defendant must remain arrest-free for “the” five years “immediately
following” the 1997 convictions. Giulian, 111 A.3d at 204 (emphasis in original). The
Commonwealth likewise interpolates the word “immediately” in insisting the statute
lacks ambiguity. This Court has cautioned, however, “although one is admonished to
listen attentively to what a statute says[,] one must also listen attentively to what it does
not say.” Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011), quoting Kmonk-
Sullivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955, 962 (Pa. 2001). Accordingly,
we have stressed courts should not add, by interpretation, a requirement not included
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by the General Assembly. Johnson, 26 A.3d at 1090, citing Commonwealth v. Rieck
Investment Corp., 213 A.2d 277, 282 (Pa. 1965).
We also credit appellant’s view the General Assembly’s use of the present
perfect tense “has been free of arrest” supports that the statute does not refer to any
particular five-year period; again, it is notable the Superior Court altered the text in
narrowing the scope of the provision. See Giulian, 111 A.3d at 204 (“Therefore, as
Appellant was not free of arrest or prosecution for the five years following the 1997
offense, we discern no error or abuse of discretion in the trial court’s order denying her
petition to expunge the 1997 offense.”) (emphasis added).
For purposes of decision, we need not dispute that the contrary reading of the
provision is also colorable as a textual matter, but it is notable the Superior Court and
the Commonwealth easily demonstrate how much clearer the language could be if the
provision actually included the terms “the” and “immediately” — or other terms of
limitation. Finally, appellant successfully rebuts the Superior Court’s concern her
interpretation rendered the final phrase of the statute surplusage: the clause “following
the conviction for that offense” reasonably bears the construction it merely establishes
the possible start date for any five-year waiting period, i.e., the period is simply after the
conviction for the subject summary offense. Under this reading, there is no
surplusage.
Our determination the statute is ambiguous is further supported by viewing the
language in its context as part of the overall statutory scheme. See, e.g., 1 Pa.C.S.
§1921(a) (sections of statute should be read together and construed to give effect to all
provisions); Roethlein, 81 A.3d at 822 (statutory words not to be interpreted in isolation
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but read with reference to context in which they appear); Mishoe, 824 A.2d at 1155
(same). See also Sturgeon v. Frost, __ U.S. __, __, 136 S.Ct. 1061, 1070 (2016)
(“Statutory language ‘cannot be construed in a vacuum. It is a fundamental canon of
statutory construction that the words of a statute must be read in their context and with
a view to their place in the overall statutory scheme.’”). It is undisputed Section 9122 is
designed to afford the prospect of expungement relief to certain individuals under
specified circumstances. The statute embraces three distinct approaches: situations
where expungement must be granted, situations where it cannot be granted, and
situations where expungement is possible in the discretion of the trial court. For
example, subsection (a) describes situations where criminal record history must be
expunged. 18 Pa.C.S. §9122(a) (criminal history record information shall be expunged
when no disposition has been recorded within 18 months of arrest and it is certified no
action is pending, or when a person convicted of underage drinking attains 21 years of
age and has satisfied all terms and conditions of sentence).4 Contrarily, subsection
(b.1) describes situations where criminal history records can never be expunged. 18
Pa.C.S. §9122(b.1) (court shall not have authority to order expungement of arrest
record where defendant was placed on Accelerated Rehabilitative Disposition for
violation of certain enumerated offenses where victim is under 18 years of age). Finally,
subsection (b) describes middle-ground situations where the court may grant
expungement under certain conditions. 18 Pa.C.S. §9122(b). Cf. Moto, 23 A.3d at
4
See Commonwealth v. Furrer, 48 A.3d 1279, 1282 (Pa. Super. 2012) (expungement of
defendant’s guilty-plea conviction of underage drinking was statutorily required where
conditions were met; denial of expungement was abuse of discretion).
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1000 (Saylor, J., dissenting) (“Expungement is discretionary when sought to purge
criminal history record information generally (i.e., to wipe the slate clean).”). Here, the
reading of the Superior Court and the Commonwealth takes the provision framed in
discretionary language and carves out an exception where expungement can never be
secured. The overall structure of the statute weighs against this narrowing construction.
Other statutory construction factors also weigh in favor of appellant’s reading.
Although the Superior Court affirmed the denial of expungement in this case, the panel
nevertheless recognized the purpose of the expungement statute — the occasion and
necessity for its enactment, the mischief to be remedied, and the object to be attained
— is to ameliorate the “difficulties and hardships” that often result from an arrest record.
Giulian, 111 A.3d at 203, quoting Commonwealth v. Butler, 672 A.2d 806, 808 (Pa.
Super. 1996). “Expungement is a mechanism utilized to protect an individual's
reputation from the stigma that accompanies an arrest record.” Wallace, 97 A.3d at
319. Unlike the defendant in Wallace, who was denied expungement while still
incarcerated for multiple, serious crimes, see id. at 322, appellant, whose minor
offenses occurred long ago, when she was very young, and who has stayed arrest-free
for almost two decades, is the kind of person who would benefit from the elimination of
the perpetual stigma of her youthful misconduct.
Amici persuasively supplement appellant’s argument in this regard by gathering
and explaining current research and statistical information about the specific
consequences experienced by individuals like appellant, with low-level offenses on their
records, especially in this new era of easy online access to criminal records through
inexpensive background checking services. Amicus Curiae Brief at 10, citing, e.g.,
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NAT’L CENTER FOR STATE COURTS, PRIVACY/PUBLIC ACCESS TO STATE COURTS: STATE
LINKS; Jenny Roberts, Expunging America’s Rap Sheet in the Information Age,
WASHINGTON COLLEGE OF LAW RESEARCH PAPER NO. 2015-3 (2015); see id. at 12 (in one
survey, 11% of employers reported minor infraction would disqualify candidate from
employment; in another study, researchers found existence of criminal record reduced
likelihood of callback or job offer by nearly 50%); see id. at 11-18 (collecting information
regarding barriers to employment, housing and education created by criminal records).
The intended remedial impact of the expungement statute with respect to low-level
offenses reveals obvious practical humanitarian objectives, which counsel us to
construe the statutory language liberally in favor of appellant. See, e.g., School Dist. of
Phila., 117 A.3d at 242. 5
Accordingly, in our judgment, appellant’s construction of the statute is more
persuasive. Moreover, the lower courts’ contrary, stricter reading of the statute has
yielded an unreasonable result: appellant’s 1998 conviction has been expunged while
the older ones remain intact and, by the lower courts’ reasoning, those 1997 offenses
can never be expunged, even if another sixteen, or fifty, arrest-free years elapse. We
hold this is not a result the Legislature intended. Instead, we hold appellant is eligible
5
The Court is not bound by the parties’ agreement the statute is penal in nature and
thus, under the rule of lenity, subject to strict construction against the Commonwealth
and in favor of appellant. See Commonwealth v. Spruill, 80 A.3d 453, 460 (Pa. 2013)
(“the parties' agreement on a legal issue does not control this Court's independent
judgment”) (citing cases). Justice Baer’s concurrence correctly notes the difference in
the standards applicable when a statute is deemed remedial or is deemed penal;
Justice Baer also correctly notes that, for purposes of decision here, either conclusion
would require a construction favoring appellant, and we therefore need not definitively
resolve whether the higher standard (“strict construction”) attending penal provisions
applies.
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for expungement of the criminal history record of her 1997 harassment and public
drunkenness convictions.
Finally, regarding the Commonwealth’s somewhat tautological argument that the
trial court did not abuse its discretion because appellant was ineligible for expungement,
we note the trial court did not purport to exercise its discretion; the court held instead
appellant was not eligible for expungement as a matter of law pursuant to its reading of
the statute. Trial Court Opinion, 7/16/14, slip op. at 4. Accordingly, we remand to the
trial court for consideration of all factors relevant to the discretionary determination of
whether appellant’s summary offenses should be expunged. See, e.g., Wexler, 431
A.2d at 879 (factors to consider in deciding whether to expunge criminal record include
(1) strength of Commonwealth’s case; (2) Commonwealth’s reasons for wishing to
retain records; (3) petitioner’s age, criminal record, and employment history; (4) length
of time between arrest and petition to expunge; and (5) adverse consequences resulting
from denial).
Reversed and remanded for further proceedings. Jurisdiction relinq uished.
Chief Justice Saylor and Justices Donohue and Wecht join the opinion.
Justice Baer files a concurring opinion which Justice Todd joins.
Justice Wecht files a concurring opinion.
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