Com. v. Baldwin, P.

J. A18002/15
2015 Pa. Super. 197
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PAMELA JO BALDWIN, : No. 1812 MDA 2014
:
Appellant :
Appeal from the Order Entered September 26, 2014,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0003948-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 16, 2015
Appellant, Pamela Jo Baldwin, appeals from the order of the Court of
Common Pleas of York County entered on September 26, 2014, which
denied appellant’s Petition to Direct Expungement of Case Pursuant to
Accelerated Rehabilitative Disposition (“ARD”). We reverse.
On May 17, 2011, Pennsylvania State Police charged appellant with
theft by unlawful taking pursuant to 18 Pa.C.S.A. § 3912(A). On July 15,
2011, appellant filed an ARD application with the York County District
Attorney’s Office. On October 25, 2011, appellant was formally accepted
into the ARD program with a 12-month term of probation supervision. The
trial court imposed conditions of the ARD program including, inter alia, that
appellant perform 35 hours of community service and pay costs, fees, and
restitution. (Docket #8.)
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On September 26, 2012, the York County Adult Probation and Parole
Department (“Probation Department”) filed an ARD violation petition
pursuant to Pa.R.Crim.P. 318. The Probation Department alleged that
appellant failed to pay costs, fees, and restitution and comply with her
condition of community service.1 A hearing was held on December 27,
2012. Appellant’s counsel stated that appellant was starting a new job in
two weeks and would start making payments at that time. The trial court
ordered that appellant’s “period of supervision be extended 12 months.”
(Order, 12/27/12 at 1.) The extension was granted from the date of the
hearing. The period of supervision was modified to expire on December 26,
2013.2
On December 3, 2013, the Probation Department filed a second ARD
violation petition due to appellant’s continued failure to pay costs, fees, and
restitution. The Probation Department averred that appellant’s most recent
payment was on July 24, 2013, and that appellant owed a balance of
$1,208.78. A hearing was held on January 29, 2014. Immediately prior to
the hearing, appellant paid her costs and restitution in full. The Probation
1
The initial 12-month period of supervision was set to expire on October 25,
2012.
2
The trial court has acknowledged in hindsight that it should not have
extended the ARD supervision for another year from December 27, 2012,
since that effectively made the period of supervision longer than the
two years permitted under Pa.R.Crim.P. 316(B). (Trial court opinion, 1/8/15
at 2.)
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Department verbally moved to withdraw the violation petition. The trial
court granted the Probation Department’s request to withdraw the violation
petition and authorized the Department to close the case. (Order, 1/29/14
at 1.) The assistant district attorney for the Commonwealth was present at
that hearing and did not object to dismissal of the charges. There was no
request by any party that the ARD program be “terminated” or any
suggestion that the Commonwealth intended to proceed on the charges
under Pa.R.Crim.P. 318 as a result of condition violations.
After the hearing, appellant contacted the Probation Department and
requested expungement of her arrest record. The Probation Department
refused because appellant did not complete the ARD program within the
two-year limit set forth in Pa.R.Crim.P. 316(B), which provides that: “[t]he
period of such [ARD] program for any defendant shall not exceed
two years.” According to the Probation Department, the two-year period
imposed by Pa.R.Crim.P. 316(B) expired on October 25, 2013, two years
from the date appellant was first placed on ARD. The Probation Department
determined that appellant’s failure to complete the program within two years
effectively removed her from the purview of ARD such that she was not
qualified for automatic expungement.
On April 29, 2014, appellant filed a petition to direct expungement of
case. The petition was served on the assistant district attorney for the
Commonwealth. The Commonwealth did not file objections to the
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expungement. A hearing was held on June 24, 2014. The assistant district
attorney for the Commonwealth was present at the hearing and did not
object to the expungement. In fact, according to the Commonwealth,
“because [the] Probation [Department] withdrew the violation, it was treated
as if she did, if fact, pay everything off within the two years.” (Hearing
transcript, 6/24/14 at 2.)
The trial court nevertheless believed it was authorized to consider the
“objections” of the Probation Department and “exercise its discretion” to
deny expungement. By order dated September 26, 2014, the trial court
denied appellant’s petition for expungement.
[T]he rule on expungement does not make
expungement automatic if there are objections,
which indicates that despite the mandatory language
contained in Rule 320(A), the court still maintains
discretion in granting or denying expungement.
....
[T]he Defendant did not complete the ARD program
in the allotted two year time frame as required by
Rule 316(B)…Because the Defendant failed to
complete her ARD conditions within two years, we
concluded that she did not ‘successfully’ complete
the program, and therefore, should not benefit from
expungement of her record pursuant to the rules
governing the ARD program.
Trial court opinion, 9/26/14 at 3-4.
On appeal, appellant raises two issues:
1. Whether the trial court erred as a matter of
law when it denied Appellant’s request for an
expungement when the trial court closed
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Appellant’s ARD case and expungement is
mandatory pursuant to Pa.R.Crim.P. 320(A)
under the circumstances?
2. Whether the trial court erred as a matter of
law when it denied Appellant’s request for
expungement absent an objection from the
‘attorney for the Commonwealth,’ the only
party with authority to object to an ARD
expungement under Pa.R.Crim.P. 319 and
Pa.R.Crim.P. 320(B)?
Appellant’s brief at 4.
Appellant first contends that the trial court was required to order
automatic expungement of her arrest record at the time it ordered the
dismissal of the charges. We agree.
It is undisputed that, notwithstanding the amount of time it took for
appellant to complete the ARD program, appellant’s case was disposed of
under the ARD program.3 Pa.R.Crim.P. 320 provides:
3
As the trial court pointed out, neither party followed the correct procedure
to dismiss the charges, to expunge appellant’s arrest record, or to make
objections. (Trial court opinion, 9/26/14 at 3.) Indeed, the Probation
Department’s oral request to withdraw violation petition at the January 29,
2014 hearing, and the trial court’s grant of said request, obviated the need
for appellant to file a formal motion for dismissal of the charges pursuant to
Pa.R.Crim.P. 319, which provides:
When the defendant shall have completed
satisfactorily the program prescribed and complied
with its conditions, the defendant may move the
court for an order dismissing the charges. This
motion shall be supported by affidavit of the
defendant and by certification of the agency or
person charged with supervising the defendant’s
program, if any. A copy of the motion shall be
served on the attorney for the Commonwealth who
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(A) When the judge orders the dismissal of the
charges against the defendant, the judge also
shall order the expungement of the
defendant’s arrest record, subject to the
provisions of paragraph (B). The expungement
order shall contain the same information that
is required in Rule 490(C) in summary cases
and Rule 790(C) in court cases. (Emphasis
added.)
(B) If the attorney for the Commonwealth objects
to the automatic expungement, the objections
shall be filed with the judge, together with the
objections to dismissal, if any, within 30 days
after service of a motion for dismissal under
Rule 319, and copies of the objections shall be
served on the defendant or the defendant’s
attorney. (Emphasis added.)
(C) If the objections are filed, the judge shall hold
a hearing on the objections, affording all
parties the opportunity to be heard.
We find the language of Pa.R.Crim.P. 320 to be clear and unambiguous
in its terms. The rule straightforwardly indicates that automatic
expungement is mandatory when a judge orders the dismissal of charges
against the defendant upon completion of ARD. The only exception is when
shall within 30 days after service advise the judge of
any objections to the motion, serving a copy of such
objections on the defendant or the defendant’s
attorney. If there are no objections filed within the
30-day period, the judge shall thereafter dismiss the
charges against the defendant. If there are
objections filed with regard to the dismissal of the
charges, the judge shall proceed as set forth in
Rule 318.
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“the attorney for the Commonwealth objects to the automatic
expungement.”
Instantly, the trial court’s January 29, 2014 order, dismissing the
charges against appellant pursuant to an ARD program, did not
contemporaneously order the expungement of appellant’s arrest record.
This was error. The trial court was required to order the expungement of
appellant’s arrest record at the time it ordered the dismissal of the charges
pursuant to the mandatory language of Pa.R.Crim.P. 320(A).
The trial court bases its determination to deny expungement on the
objections of the Probation Department that appellant had not completed
ARD within two years pursuant to Rule 316. However, such an objection
would go to whether appellant successfully completed ARD such that
dismissal under Rule 319 should not be granted. In this case, the Probation
Department withdrew its objection to the dismissal of the charges and the
trial court did in fact dismiss the charges based on completion of ARD.
Nothing in Rule 320 on expungement allows for court discretion upon
completion of ARD and the dismissal of the charges pursuant thereto unless
as discussed supra, the Commonwealth objects to expungement based on
“an overriding societal interest in retaining the record.” Commonwealth v.
Armstrong, 434 A.2d 1205 (Pa. 1981). Clearly, no such objection was
made by the Commonwealth in this case.
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Moreover, the trial court, with the approval of the assistant district
attorney for the Commonwealth and the Probation Department, extended
the time within which appellant was permitted to comply with her ARD
program conditions beyond the two-year limit. The assistant district
attorney for the Commonwealth and appellant’s probation officer were at the
hearing when the extension was granted but neither objected to or raised
any concerns about violations of the Rule 316(B) two-year time limit. At no
time was appellant made aware that her right to expungement would be
compromised as a result of the extension. It would be unconscionable to
punish appellant and entertain the Probation Department’s objections on
these grounds when: (1) the Probation Department itself was instrumental
in bringing about the very violation of which it now complains; and (2) the
Commonwealth’s attorney did not object to the automatic expungement.
In sum, automatic expungement was mandatory in this matter. The
trial court’s January 29, 2014 order, dismissing the charges after the
violation allegation was withdrawn, effectively resolved the case as an ARD
disposition. Pa.R.Crim.P. 320 unambiguously provides that when the judge
orders dismissal of the charges upon successful completion of the ARD
conditions, the judge must also order the expungement of the defendant’s
arrest record. The trial court abused its discretion when it failed to order
automatic expungement and considered objections of the Probation
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Department and denied expungement absent an objection by the
Commonwealth’s attorney.
The order of the trial court is reversed, and the case is remanded to
the trial court with instructions to enter an order expunging the record of
appellant’s arrest. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2015
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