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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAELENE LAFAYE WEAVER
Appellant No. 1450 MDA 2016
Appeal from the Order Entered August 5, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002795-2008
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MARCH 15, 2017
Jaelene Lafaye Weaver appeals from the order of the trial court
entered on August 5, 2016, denying her petition for expungement. On
appeal, Weaver claims the trial court erred by (1) denying the expungement
petition as to criminal charges that were “withdrawn,” without providing a
hearing, and (2) denying the expungement petition as to a criminal charge
that was “changed,” without providing a hearing. See Weaver’s Brief at 3.
Based upon the following, we affirm in part and vacate in part, and remand
for further proceedings consistent with this memorandum.
This appeal has its genesis in an incident that occurred on March 26,
2008, when Pennsylvania State Police were dispatched to the scene of an
automobile accident involving Weaver. Weaver was initially charged with:
Count 1 – 75 Pa.C.S. § 3802(a)(1) – Driving Under the Influence
(DUI): General Impairment (Misdemeanor);
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Count 2 – 75 Pa.C.S. § 3802(c) – DUI: Highest Rate of Alcohol
(BAC .16+) (Misdemeanor);
Count 3 – 75 Pa.C.S. § 3309(1) – Driving on Roadways Laned
for Traffic (Summary);
Count 4 – 75 Pa.C.S. § 3361 – Driving Vehicle at Safe Speed
(Summary);
Count 5 – 75 Pa.C.S. § 3745(a) – Accidents Involving Damage to
Unattended Vehicle or Property (Summary);
Count 6 – 75 Pa.C.S. § 3746(a)(2) – Failure to Notify Police of
Accident/Damage to Vehicle (Summary); and
Count 7 – 75 Pa.C.S. § 3714 – Careless Driving (Summary).
See Criminal Complaint, 4/14/2008. The Criminal Complaint further reflects
that the charges at Counts 4, 5, and 7, are crossed out by a diagonal line
with the initialed, undated notation “withdrawn.”1 Id.
The Information, filed July 16, 2008, does not include the three
“withdrawn” summary charges, and reflects the DUI: Highest Rate of Alcohol
charge replaced with the charge graded as a misdemeanor of the first
degree, for a second offense. Specifically, the Information reflects the
following charges:
Count 1 – 75 Pa.C.S. § 3802(c) – DUI: Highest Amount of
Alcohol (Misdemeanor 1)(Second Offense);
Count 2 – 75 Pa.C.S. § 3802(a)(1) – DUI: General Impairment
(Misdemeanor);
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1
The initials appear to be the initials of the charging Pennsylvania State
trooper.
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Count 3 – 75 Pa.C.S. § 3309(1) – Driving on Roadways Laned
for Traffic (Summary); and
Count 4 – 75 Pa.C.S. § 3746(a)(2) – Failure to Notify Police of
Accident/Damage to Vehicle (Summary).
See Information, 7/16/2008.
On December 1, 2008, pursuant to a negotiated plea agreement,
Weaver pleaded guilty to all charges set forth in the Information. The trial
court sentenced Weaver on Count 1 to five years’ County Intermediate
Punishment with additional DUI-related conditions and fines, Count 2
“merged” with Count 1, and no sentence was imposed on the two remaining
counts involving summary offenses.2
On July 7, 2016, Weaver filed a Petition for Order Expunging Criminal
Charges. In her petition, Weaver sought expungement of the summary
charges that had been “withdrawn,” and the DUI: Highest Rate charge that
had been changed to DUI: Highest Rate charge — second offense. The trial
court denied Weaver’s petition by order entered August 5, 2016. This timely
appeal followed.3
It is well settled that “[t]he decision to grant or deny a petition to
expunge rests with the sound discretion of the trial court, and we review
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2
Weaver’s supervision was later modified by the trial court’s order to
unsupervised, so that Weaver could attend college out of state.
3
Weaver timely complied with the trial court’s order to file a concise
statement of errors pursuant to Pa.R.A.P. 1925(b).
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that court's decision for abuse of discretion.” Commonwealth v. Moto, 23
A.3d 989, 993 (Pa. 2011).
If the defendant is convicted of a crime, he is not permitted to
expunge his convictions except under the extremely limited circumstances
permitted by statute. Commonwealth v. Maxwell, 737 A.2d 1243, 1244
(Pa. Super. 1999), citing 18 Pa.C.S. § 9122.4 At the opposite extreme, our
courts recognize that a defendant is generally entitled to automatic
expunction of charges for which he or she is acquitted. See
Commonwealth v. Hanna, 964 A.2d 923 (Pa. Super. 2009). However,
cases pose more difficulty where a defendant is not convicted or acquitted
and another disposition has been entered. In such cases, courts must use a
balancing test:
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 this Court has
required the trial court to "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, 494 Pa. 325, 431 A.2d
877, 879 (Pa. 1981); [Commonwealth v.] D.M., [548 Pa. 131,
695 A.2d 770, 772 (1977)] (“We reiterate the authority of
Wexler and the balancing test approved therein as the means of
deciding petitions to expunge the records of all arrests which are
terminated without convictions except in cases of acquittals.”).
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4
18 Pa.C.S. § 9122(a) addresses mandatory expungement, and 18 Pa.C.S.
§ 9122(b) addresses discretionary expungement.
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To aid courts in applying the balancing test for expungement, we
also adopted in Wexler the following non-exhaustive 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).
We have emphasized that 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 maintain 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.
Moto, supra, 23 A.3d at 993-994.
Here, the trial court, in its Pa.R.A.P. 1925(a) opinion, explained that it
denied Weaver’s petition on the basis of Commonwealth v. Lutz, 788 A.2d
993 (Pa. Super. 2001). The trial court reasoned:
[U]nlike charges for which the defendant has been acquitted or
nolle prossed, charges withdrawn pursuant to plea agreements
are not subject to the Wexler test, and require no such hearing.
See Com[monwealth] v. Lutz, 788 A.2d 993, 1001.
In Lutz, the defendant/appellant pushed the victim to the
ground and stabbed the victim, causing “serious knife wounds to
his stomach and liver.” Id. at 995. Appellant was charged with
“one count of criminal attempt to commit homicide, two counts
of aggravated assault, one count of simple assault, one count of
recklessly endangering another person, and one count of
possessing an instrument of crime.” Id. Appellant was “bound
… for trial on all charges.” Id. Before the trial however,
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Appellant chose to enter a guilty plea pursuant to a plea bargain
negotiated with the Commonwealth; as the trial court reasoned,
“the consideration received by the parties was that in return for
Appellant’s guilty plea to the Aggravated [A]ssault charge, the
Commonwealth would move to dismiss the remaining charges.”
Id. at 1000. In affirming the trial court’s holding that
expungement would have been inappropriate, the Superior Court
reasoned that “[i]n the absence of an agreement as to
expungement, [an] [a]ppellant stands to receive more than he
bargained for in the plea agreement if the dismissed charges are
later expunged.”8
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8
The Superior Court also noted that this was
“particularly” the case “where Appellant [had] already
been bound over for trial on all charges, the
Commonwealth [was] fully prepared to proceed against
Appellant on all charges at trial, and Appellant admit[ted]
to facts that could essentially constitute culpability for the
dismissed charges.” Com[monwealth] v. Lutz, 788
A.2d 993, 1001 (Pa. Super. 2001).
______________________________________
… [H]ere, as in Lutz, [Weaver] pled guilty pursuant to a plea
agreement; as consideration for that agreement, certain charges
were “withdrawn,” “merged,” or “negotiated with no further
penalty.” Further, here, as in Lutz, there was also no
agreement that these charges would be expunged under the
negotiated plea agreement. Moreover, as in Lutz, [Weaver]
essentially admitted to the other offenses when she entered the
plea, as the charges for which she admitted guilt met the same
set of facts as the charges the Commonwealth agreed to
“merge,” “negotiate” or “withdraw.”9 Finally, the “merged” and
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9
The exception being the charge of DUI: Highest Rate of
Alcohol, 1st Offense, which the docket notes was changed
to reflect that it was [Weaver’s] 2nd offense.
_______________________________________
“negotiated” offenses in this case are even more essential to the
agreement than the offenses in Lutz, as their dispositions
implicate [Weaver] more than the “dismissed charges in that
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case. It so follows that if the Court expunged the charges in this
case, especially those that were “merged” or “negotiated,”
[Weaver] would be getting even more than she “bargained for”
than the [a]ppellant sought in Lutz. Accordingly, based on the
quasi-contractual nature of the plea agreement, I believe I
reasonably concluded that [Weaver] was not entitled to
expungement in this case.
Trial Court Opinion, 10/14/2016, at 3–5 (footnote omitted). Based on our
review, we conclude the certified record is inadequate to resolve the issue
presented in this case regarding the “withdrawn” charges.
In Lutz, “the Commonwealth agreed to dismiss, as part of a
negotiated plea bargain, certain charges in exchange for Appellant’s guilty
plea to the remaining charge.” Id. at 1001. As noted by the trial court,
Lutz holds that denial of expungement of charges dismissed as part of a
negotiated guilty plea is appropriate, “particularly where Appellant has
already been bound over for trial on all charges, the Commonwealth is fully
prepared to proceed against Appellant on all charges at trial, and Appellant
admits to facts that could essentially constitute culpability for the dismissed
charges.” Id.
Here, unlike Lutz, at the preliminary hearing,5 the charges against
Weaver for Driving Vehicle at Safe Speed, Accidents Involving Damage to
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5
The Commonwealth acknowledges, “The summary offenses of Driving at
Safe Speed, Careless Driving and Accidents Involving [sic] were withdrawn
at the time of the preliminary hearing.” Commonwealth’s Answer to
[Weaver’s] Motion for Order Dismissing Criminal Charges and to Expunge
Criminal Record, 8/2/2016, at 1 n.1.
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Unattended Vehicle or Property, and Careless Driving, were withdrawn, and
the charge for DUI: Highest Rate — first offense was replaced. The
Information, filed on July 16, 2008, did not include the aforementioned
charges. Weaver entered her guilty plea to the charges in the Information
almost five months later, on December 1, 2008, and there is no mention of
the withdrawn charges either in the guilty plea slip or in the written guilty
plea colloquy. As such, also unlike Lutz, this case does not reflect an
explicit agreement indicating the withdrawn charges were part of the plea
agreement.6 Here, the docket ambivalently reflects that the charges for
Driving Vehicle at Safe Speed, Accidents Involving Damage to Unattended
Vehicles or Property, and Careless Driving were “withdrawn” on
“06/24/2008,” and “withdrawn” on “12/01/2008.” However, the certified
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6
In its brief, the Commonwealth maintains:
The charges that were withdrawn at the preliminary hearing
could have been reinstated by the Commonwealth at any time
prior to [Weaver’s] plea. Pa.R.Crim.P. 544. The
Commonwealth, however, did not reinstate those charges, but
allowed them to remain withdrawn when it drafted the plea
agreement to the remaining charges. Additionally, the
Commonwealth amended the DUI-Highest Rate count to reflect
the proper offense number and grading. Finally, the plea
agreement entered into by the Commonwealth and [Weaver]
contained no provision for the expungement of any charges at a
later date. As such, to grant [Weaver’s] petition would provide
[Weaver] “more than [she] bargained for in the plea agreement
….” Lutz.
Commonwealth’s Brief, at 6.
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record contains no transcripts of the guilty plea and sentencing hearings that
would definitively resolve this issue.
Under these circumstances, we are guided by Commonwealth v.
Hanna, 964 A.2d 923 (Pa. Super. 2009). In Hanna, this Court addressed
the trial court’s denial of a petition for expungement where the trial court
had relied on Lutz to support its decision. This Court found “the current
state of the record” was “inadequate” to resolve whether the charges at
issue were subject to the plea agreement. Id. at 928. The Hanna Court
held:
Lutz is arguably inconsistent with broad language from this
Court and our Supreme Court, as well as the prevailing trend of
our case law. Nevertheless, we are not free to ignore Lutz
outright, because it has not been overruled by this Court en banc
or by our Supreme Court. We also recognize that in any given
case, there may be debate over the factual question of whether
the parties entered into the type of “quasi-contractual”
agreement described in Lutz. As noted above, this is such a
case. In keeping with the spirit of the case law discussed above,
we now further hold that the Commonwealth bears the burden of
proving on remand with clear and convincing evidence that Lutz
applies. If the Commonwealth fails to carry that heavy burden,
then the Wexler test will apply. We also urge the court to
be mindful of the public policy considerations consistently
articulated by our Supreme Court and this Court concerning the
value of expungement to an individual. See [Commonwealth v.
A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005).]. After the
remand hearing, the court is free to issue a new order granting
or denying expungement as to any or all of the charges in
accordance with the principles set forth in this Opinion.
Id., 964 A.2d at 928-29.
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Accordingly, applying Hanna to the instant case, we remand for an
evidentiary hearing on the withdrawn charges, and if the trial court
determines it is appropriate, a Wexler hearing.
However, the DUI charge that was “changed” requires a different
analysis. Weaver was originally charged with DUI: Highest Rate — first
offense. This charge was then replaced with the charge for DUI: Highest
Rate — second offense, to which Weaver pleaded guilty. Under these
circumstances, we conclude no hearing is warranted for the DUI: Highest
Rate — first offense charge that was amended to reflect the proper offense
number and grading.
Order affirmed in part, and vacated in part. Case remanded for
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2017
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