Opinion
1080 WDA 2020
08-18-2021
COMMONWEALTH OF PENNSYLVANIA v. LEVI RUDY TROYER, JR. Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered September 11, 2020 In the Court of Common Pleas of Butler County Criminal Division at No: CP-lO-CR-0000692-2005.
Joseph D. Seletyn, Esq.
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.[
*
]
MEMORANDUM
MURRAY, J.:
Levi Rudy Troyer, Jr. (Appellant) appeals from the order denying his petition for expungement of prior criminal charges. We affirm.
In April 2005, the Commonwealth charged Appellant with theft by unlawful taking, as well as burglary, criminal conspiracy, and criminal mischief. The Commonwealth alleged that in December 2004, Appellant and a juvenile co-conspirator broke into and stole items from a storage trailer.
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).
See id. §§ 3502(a), 903(a), 3304(a)(1). We reference these charges collectively as "the remaining charges."
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 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). 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)).
On July 13, 2005, the parties entered into a negotiated plea agreement, which is contained in the certified record. Appellant agreed to plead guilty to one count of theft in exchange for the Commonwealth dismissing the remaining charges and recommending a sentence of 18 months of intermediate punishment (IP). See Plea Agreement, 7/13/05 (stating the remaining charges would be "dismissed"). The plea agreement did not address expunction of the remaining charges.
The trial court accepted Appellant's guilty plea to theft, and the remaining charges were dismissed. The trial court sentenced Appellant to 18 months of IP and imposed a $300 fine.
On August 23, 2019, Appellant filed a petition seeking expungement of his arrest record for the remaining charges. The Commonwealth filed an objection in opposition on February 27, 2020 and requested a hearing. The Commonwealth argued that under this Court's decision in Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001), Appellant's arrest record could not be expunged because the Commonwealth dismissed the remaining charges pursuant to the plea agreement. See id. at 1000 ("[W]here charges are dismissed pursuant to a plea agreement, those charges are not eligible for expunction, as to destroy them would obscure the true circumstances under which [the accused] has been convicted." (emphasis added)); see also id. at 999 (distinguishing dismissal of charges from a nolle prosequi and stating: "[i]n the instant case, charges were dismissed, and the understanding of all parties was apparently that the charges could never be revived, which is quite a different situation than a Nolle Prosequi.").
On May 29, 2020, the trial court convened a hearing on the expungement petition. The parties presented oral argument rather than testimony. Appellant's counsel argued:
[A]lthough Lutz is valid, the [trial c]ourt in considering whether to expunge a dismissed charge[ should conduct an evidentiary hearing] or look at the evidence and weigh the factors between the benefit to [Appellant] in getting his arrest record expunged and the detriment to the Commonwealth.N.T., 5/29/20, at 5.
By order entered September 11, 2020, the trial court denied the expungement petition. Appellant timely filed a motion for reconsideration on September 20, 2020, asserting the trial court erred in its application of the law. The trial court denied Appellant's motion two days later.
Appellant timely appealed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents three questions for review:
A. Whether trial court abused its discretion or committed an error of law by relying solely on Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001) in deciding to deny [Appellant's] Petition for Expungement?
B. Whether the trial court abused its discretion or committed an error of law by failing to place the burden of proof on the Commonwealth to prove, by clear and convincing evidence, why [Appellant's] arrest record should not be expunged[?]
C. Whether the Commonwealth satisfied its burden of affirmatively justifying why the arrest record of [Appellant] should not be expunged?
Appellant's Brief at 4.
As Appellant's issues are related, we address them together. It is well-settled that we "review the trial court's denial of a motion for expunction for an abuse of its discretion." In re P.M., 230 A.3d 454, 456 (Pa. Super. 2020) (citation and brackets omitted).
In Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), the Pennsylvania Supreme Court held that the defendant was entitled to have his arrest record expunged where the charges had been nolprossed. Id. at 879-81. The Court detailed a non-exhaustive list of factors a trial court should consider, stating the court "must balance the individual's right to be free from harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records." Id. at 879. When the Wexler balancing test applies, the Commonwealth is required "to bear the burden of affirmatively justifying why the arrest record should not be expunged." Commonwealth v. Maxwell, 737 A.2d 1243, 1244 (Pa. Super. 1999) (citing Wexler, 431 A.2d at 880).
This Court subsequently discussed the interplay of Lutz and Wexler, stating:
When the defendant pleads guilty and the Commonwealth agrees to dismiss charges as part of the plea agreement, a defendant is normally not entitled to expungement of the dropped charges under the Wexler factors. Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001). In such a scenario, the Commonwealth dismisses charges in connection with a plea arrangement and, accordingly, there is no implicit or express admission that it lacks evidence to convict a defendant of the crimes. The action of dropping the charges is viewed as a contractual arrangement negotiated as part of the plea bargain. Id. at 1000. This
situation is contrasted with that involved in the nol pros setting, where the Commonwealth concedes that there is insufficient evidence to support the dismissed charges. Id. at 999. Thus, if expungement were permitted as to charges withdrawn pursuant to a plea bargain rather than due to a lack of evidence, there would not be an accurate record of the agreement reached by the defendant and the Commonwealth. Id. at 1000-01. Furthermore, "In the absence of an agreement as to expungement, [a]ppellant stands to receive more than he bargained for in the plea agreement if the dismissed charges are later expunged." Id. at 1001; but see Commonwealth v. A.M.R., 887 A.2d 1266 (Pa. Super. 2005) (where charges of theft and misapplication of entrusted property were dropped after defendant agreed to resign from his job, defendant's arrest record was ordered to be expunged); Matter of Pflaum, 451 A.2d 1038 (Pa. Super. 1982) (before the district justice, Commonwealth dropped charges of burglary, trespass, and theft and defendant pleaded guilty to disorderly conduct; defendant was entitled to have record of withdrawn charges expunged). In applying Lutz and Wexler in the plea agreement setting, we have had occasion to remand to the trial court to make a clear record as to whether charges were nol prossed based upon lack of evidentiary support or whether the charges were dropped in exchange for the plea. See Commonwealth v. Hanna, 964 A.2d 923 (Pa. Super. 2009)[; see also id. at 929 ("[T]he Commonwealth bears the burden of proving . . . with clear and convincing evidence that Lutz applies." (footnotes omitted)).]Commonwealth v. V.G., 9 A.3d 222, 225-26 (Pa. Super. 2010) (emphasis added, citations modified).
Here, Appellant argues:
The Commonwealth failed to meet its burden that Lutz applies. As such, the trial court was required to hold a Wexler hearing and consider the competing interests between the parties as to the benefits and detriments of expungement.
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[Appellant] does not deny that Lutz is good law, but it [is] not the only case law applicable to this matter. See Wexler, supra; see also Hanna, supra; Matter of Pflaum, supra. A
proper analysis of these matters requires examination of several other cases and, ultimately, an examination of the facts and circumstances surrounding the terms of the plea agreement and, possibly, the interests of the parties.
Appellant's Brief at 10, 11-12 (citations modified); see also id. at 12-15 (discussing cases). Appellant asserts the Commonwealth had the burden to prove that Lutz applies, see Hanna, supra, and argues it failed to meet its burden. See Appellant's Brief at 18-21. We disagree.
The trial court properly found that Lutz applies and is controlling. Appellant did not seek expungement of charges that were nol prossed due to lack of evidence or for which he was acquitted. Cf. Wexler, supra. Instead, the Commonwealth dismissed the remaining charges against Appellant as part of the plea bargain, which did not address expungement. Under these circumstances, Appellant is not entitled to expungement. See Lutz, 788 A.2d at 999-1000. None of the cases Appellant cites to distinguish Lutz are on point, and contrary to Appellant's argument, the Wexler balancing test was not implicated, and therefore the Commonwealth had no burden to justify why the remaining charges should not be expunged. Cf. Maxwell, supra.
In sum, the trial court did not abuse its discretion because it properly applied the law in denying Appellant's request for expungement.
Order affirmed.
Dubow, Judge joins the memorandum.
Pellegrini, Judge files a dissenting memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
PELLEGRINI, J.:
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 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
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 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.
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
[*]Retired Senior Judge assigned to the Superior Court.