Thursday, July 12, 2012

convictions - expungement - underage drinking, simple assault

Commonwealth v. Furrer - Superior Court - July 11, 2012

Appellate court affirmed refusal to expunge simple assault conviction, but reversed and ordered expungment of conviction for underage drinking.

Expungement of criminal records is governed by statute. See Hunt v. Pennsylvania State Police, 603 Pa. 156, 166, 983 A.2d 627, 633 (2009) (citing 18 Pa.C.S.A. § 9122). “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.

There is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record, a right that is adjunct of due process. Carlacci v. Mazaleski, [798 A.2d 186,

Judicial 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. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 604 Pa. 156, 983 A.2d 627, 633 (2009). Commonwealth v. Wallace, ___ A.3d ___, 2012 WL 1893526 at *2 (Pa. Super. filed May 25, 2012) (citing Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011)).

Here, the record establishes the following undisputed facts: (1) Appellant was convicted of a violation of section 6308 in the Court of Common Pleas of Westmoreland County; (2) at age 22, he petitioned the Court of Common Pleas of Westmoreland County, seeking expungement of, inter alia, the section 6308 conviction; and (3) he satisfied all terms and conditions of the sentence imposed for the section 6308 violation. Therefore, pursuant to the plain, mandatory language of 18 Pa.C.S.A. § 9122(a)(3) the trial court was required to expunge all criminal history record information related to the section 6308 conviction. In not doing so, the trial court abused its discretion.
Expungment of a simple assault conviction is not mandatory under sec. 9122 and does not fit the discretionary criteria under sec. 9122(b), since the appellant here is not over age 70, is still alive, and simple assault is not a summary offense.