Wednesday, May 30, 2012

non-conviction arrest record - expungement - detailed disposition record - right to hearing

Commonwealth v. Wallace - Superior Court - May 25, 2012

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, 188 (Pa. 2002). . . . 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).

When a petitioner has been tried and acquitted of the offenses charged, we have held that the petitioner is “automatically entitled to the expungement of his arrest record.” Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770, 772-73 (1997).

When a prosecution has been terminated without conviction or acquittal, for reasons such as nolle prosse of the charges or the defendant’s successful completion of an accelerated rehabilitative disposition program (“ARD”), then the trial court must “balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records.” Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa.1981)

To aid courts in applying the balancing test for expungement, the Wexler Court adopted the following nonexhaustive list of factors that the court should consider: These factors include [1] the strength of the Commonwealth’s case against the petitioner, [2] the reasons the Commonwealth gives for wishing to retain the records, [3] the petitioner’s age, criminal record, and employment history, [4] the length of time that has elapsed between the arrest and the petition to expunge, and [5] the specific adverse consequences the petitioner may endure should expunction be denied. Wexler, supra at 879 (citation omitted).

In applying the balancing test and considering the above factors, the court must analyze the particular, specific facts of the case before it. Id. at 880-81. The mere assertion by the Commonwealth of a general interest in maintaining accurate records of those accused of a crime does not outweigh an individual’s specific, substantial interest in clearing his or her record. Id. at 881-82. Commonwealth v. Moto, ___ Pa. ___, ___, 23 A.3d 989, 993-994 (2011).

Here, the official record in this matter consists of six incomplete, disorganized parts and appears to cover 19 arrests, 37 criminal action numbers, and approximately 228 charges as of May 10, 2010. As of that date, we estimate that the charges had terminated in four guilty pleas, four convictions, sixteen acquittals, five sustained demurrers, fourteen withdrawals, fifty-three dismissals, forty-four nolle prosequi, three transfers to family court, thirty transfers to juvenile division, and fifty-five held for court. The record does not indicate whether the nolle prossed and

withdrawn charges were based upon a lack of evidentiary support or whether the charges were dropped in exchange for a plea. Moreover, the record does not indicate why some charges were dismissed. Yet, the Commonwealth argues generally - and the trial court agrees - that none of the records should be expunged in light of Appellant’s extensive criminal record and the possibility that he might reoffend.

Substantively, and depending on the circumstances surrounding their termination, some of Appellant’s non-conviction arrest records may be eligible for expungement under the laws of Pennsylvania. However, we cannot make that determination based on the record at hand. Therefore, we remand to the trial court for “a clarification of the record as much as a clarification of the reasons for the trial court decision.” Roland, 871 A.2d at 222. Toward that purpose, “we cannot suggest strongly enough that all parties provide a comprehensive list of each criminal action number in question with the disposition of each charge contained therein.” Id. The trial court should then apply the Wexler factors, balancing Appellant’s right to be free from the harm attendant to maintenance of the arrest records against the Commonwealth’s interest in preserving such records, to determine in each particular case whether justice requires expungement. Waughtel, 999 A.2d at 625; A.M.R., 887 A.2d at 1268.

Individuals have the right, as an adjunct to due process, to seek expungement of their criminal records which can be effectuated through a hearing.[…] Punishment of the innocent is the clearest denial of life, liberty and property without due process of law. To remedy such a situation, an individual must be afforded a hearing to present his claim that he is entitled to an expungement - that is, because an innocent individual has a right to be free from unwarranted punishment, a court has the authority to remedy the denial of that right by ordering expungement of the arrest record. Maxwell, 737 A.2d at 1245 (citation omitted); accord Roland, 871 A.2d at 221

Having determined that the record at hand requires supplementation and clarification with regard to the circumstances surrounding Appellant’s non-conviction arrest records, we conclude that a hearing for this purpose is necessary. Accordingly, while making no determination as to whether expungement is warranted, we vacate the orders denying the motions for expungement and remand for a hearing on which non-conviction arrests records, if any, are eligible for application of the Wexler factors, and, based on application of the Wexler factors, which non-conviction arrests records, if any, should be expunged.