J-A33030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CURT MARSDEN GAMMER
Appellant No. 1173 EDA 2015
Appeal from the Order Entered March 31, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0002670-2008
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J. FILED MAY 20, 2016
Appellant, Curt Marsden Gammer, appeals from the March 31, 2015
order entered in the Court of Common Pleas of Northampton County,
denying his petition for expungement. Upon review, we affirm.
On May 7, 2008, Appellant was charged with driving under the
influence (DUI) pursuant to 75 Pa.C.S.A. § 3802(b). On April 23, 2010,
Appellant pled guilty to the charge and, after hearing, was sentenced
accordingly. On December 19, 2013, Appellant filed a motion to withdraw
his guilty plea. After a hearing on May 9, 2014, the trial court denied
Appellant’s motion. Thereafter, on March 9, 2015, Appellant filed a petition
for expungement, which the trial court denied on March 31, 2015. Appellant
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*
Retired Senior Judge assigned to the Superior Court.
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timely filed a notice of appeal and, as ordered by the trial court, a Pa.R.A.P.
1925(b) statement. The trial court filed a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant raises two issues.
1) Was [Appellant]’s guilty plea legally defective because he did
not complete a written colloquy and did not receive an
appropriate verbal colloquy?
2) Did the trial court unconstitutionally infringed on [Appellant]’s
due process rights because it denied him the right to an
evidentiary hearing on his petition for expungement?
Appellant’s Brief at 4.
As to Appellant’s first issue, we find that we cannot address this issue
on its merits, as Appellant waived his right to challenge the validity of his
guilty plea. Appellant contends his guilty plea was “legally defective”
because the trial court did not deliver an appropriate colloquy and therefore,
he did not “knowingly, voluntarily, and intelligently enter the plea.”
Appellant’s Brief at 10. It is well settled that “[a] defendant wishing to
challenge the voluntariness of a guilty plea on direct appeal must either
object during the plea colloquy or file a motion to withdraw the plea within
ten days of sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to
employ either measure results in waiver.” Commonwealth v. Lincoln, 72
A.3d 606, 609-10 (Pa. Super. 2013). Appellant failed to object at the time
of his plea colloquy and did not file a motion to withdraw his plea within ten
days of sentencing. His challenge now, more than three years after
sentencing, is waived.
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For his second issue, Appellant contends his petition for expungement
under 18 Pa. C.S.A. § 9122 should not have been considered under the strict
criteria of that statute because his conviction was the result of judicial error.
Appellant asserts that to the extent Section 9122 precluded a hearing on his
petition, the statute unconstitutionally infringed on his due process rights.
Appellant’s Brief at 12. Appellant attempts both to resurrect his right to
challenge his guilty plea and to have his conviction expunged under Section
9122. In doing so, he essentially urges this Court to create an exception to
the statutory scheme of Section 9122 to permit another avenue of collateral
attack to challenge the validity of his guilty plea. Appellant is not entitled to
have this Court rewrite this legislative provision, or to claim he was denied
due process because he was not granted a hearing on his expungement
petition to challenge the validity of his guilty plea.
Section 9122(b) governing expungement of criminal history
information, provides in relevant part as follows:
(b) Generally.--Criminal history record information may be
expunged when:
(1) An individual who is the subject of the information reaches
70 years of age and has been free of arrest or prosecution for
ten years following final release from confinement or
supervision.
(2) An individual who is the subject of the information has been
dead for three years.
(3) (i) An individual who is the subject of the information
petitions the court for the expungement of a summary
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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.A. § 9122(b). As Appellant recognizes, he does not meet any of
these criteria for expungement of his conviction. Appellant also recognizes
that in Commonwealth v. Magdon, 456 A.2d 194 (Pa. Super. 1983), we
held that the right to due process to be heard is not abridged by denying an
expungement hearing to one actually convicted or who has pled guilty
(which waives the formalities of a hearing) because the convict’s trial
already provided an opportunity to be heard. Nonetheless, against the
weight of this authority, Appellant argues that Section 9122 and our holding
in Magdon, should not apply because a guilty plea only functions as a
waiver of constitutional safeguards where a plea is entered knowingly and
intelligently. Appellant’s Brief at 16. Since Appellant contends his plea was
not knowingly and intelligently made, the denial of an opportunity to be
heard on his expungement petition unconstitutionally infringed on his due
process rights. Appellant’s argument is circuitous at best. The right to file a
petition to expunge a criminal conviction exists only as a matter of
legislative grace. See Commonwealth v. Hanna, 964 A.2d 923 (Pa.
Super. 2009) (noting that a defendant convicted of a crime is not entitled to
expungement except under extremely limited circumstances permitted by
statute). Appellant may not attempt to expand the very limited instances
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provided for expungement of a criminal conviction under Section 9122 to
remedy his failure to exercise his right to timely challenge his guilty plea
after sentencing. Simply stated, this is not a remedy provided for under
Section 9122. Accordingly, Appellant was not denied due process by the
trial court’s refusal to grant him greater hearing rights on his petition than
that reflected by the record.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2016
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1
In passing, we note the record reflects that argument in fact was held on
Appellant’s petition during which Appellant, through counsel, admitted that
he was not entitled to expungement of his conviction. N.T. Hearing,
2/20/15, at 2-3.
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