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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                     v.                 :
                                        :
JASON WILLIAM KALER,                    :          No. 13 MDA 2015
                                        :
                          Appellant     :


             Appeal from the Order Entered December 4, 2014,
              in the Court of Common Pleas of Clinton County
             Criminal Division at No. CP-18-CR-0000026-2003


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 18, 2015

      Jason William Kaler appeals from the order of the Court of Common

Pleas of Clinton County which denied his request to expunge charges from

his arrest record.

      On January 16, 2003, appellant was charged with criminal trespass, 1 a

second-degree felony, criminal mischief,2 a third-degree misdemeanor, and

defiant trespass,3 a third-degree misdemeanor.4        Appellant waived his


1
  18 Pa.C.S.A. § 3503. A person is guilty of criminal trespass if, inter alia,
knowing that he is not licensed or privileged to do so, he breaks into any
building or occupied structure or separately secured or occupied portion
thereof.
2
  18 Pa.C.S.A. § 3304. A person is guilty of criminal mischief if he,
inter alia, intentionally damages real or personal property of another.
3
  18 Pa.C.S.A. § 3503(b)(1)(ii). A person is guilty of defiant trespass if,
inter alia, knowing that he is not licensed or privileged to do so, he enters
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preliminary hearing on January 21, 2003. On May 8, 2003, one day before

trial was to start, appellant completed and signed a standard Clinton County

guilty plea colloquy form and pled guilty to defiant trespass. In Paragraph 8

of the guilty plea colloquy, appellant and the Commonwealth agreed that “all

other charges would be dismissed 31 days after sentencing.”      (Guilty plea

colloquy form, 5/8/03 at 7; R-9a.)        On May 8, 2003, the trial court

conducted a hearing and accepted appellant’s plea.     On June 16, 2003, a

sentencing hearing was held.      Appellant was sentenced to a term of

incarceration of 1 day to 12 months. He was credited for time served, and

on that same day, he was paroled to the supervision of the Clinton County

Adult Probation Department.      There was no discussion on the record

pertaining to the disposition of the criminal trespass and criminal mischief

charges at either hearing.

      On May 30, 2014, appellant filed a petition for expungement of the

criminal   trespass    and   criminal   mischief    charges    pursuant    to

Pa.R.Crim.P. 790(A).   Appellant asserted that the charges which remained

on his record negatively affected his ability to find employment. Appellant




or remains in any place as to which notice against trespass is given by
enclosure manifestly designed to exclude intruders.
4
   Appellant allegedly forcibly entered a private residence, by breaking
through a locked door, because he believed the occupant took his cell
phone. Appellant took a DVD player. Prior to the police contacting him,
appellant took the DVD player back and started to fix the door. (Sentencing
transcript, 6/16/03 at 4; R-56a.)


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attached a copy of his Pennsylvania State Police Criminal History Record to

the petition for expungement in accordance with Pa.R.Crim.P. 790(A)(1)(3). 5

      The Commonwealth filed objections pursuant to Pa.R.Crim.P. 790(B).

The Commonwealth argued that the criminal trespass and criminal mischief

charges should not be erased from appellant’s criminal history records

because those charges were “dismissed” as part of a plea agreement.

Commonwealth            v.     Waughtel,    999      A.2d   623    (Pa.Super.   2010);

Commonwealth v. Lutz, 788 A.2d 993 (Pa.Super. 2001).

      Appellant disputed that the criminal trespass and criminal mischief

charges were dismissed. He asserted that the plea and sentencing hearing

transcripts did not reflect the disposition of the remaining two charges.

Thus, it was unclear whether the charges were dismissed pursuant to the

plea agreement, as opposed to having been withdrawn or nolle prossed.

Appellant also argued that the Lutz case was inapposite because in that

case, Chad Lutz had pled guilty to aggravated assault in exchange for the

dismissal of the charges of criminal attempt to commit homicide, simple

assault,   recklessly        endangering   another    person,     and   possessing   an

instrument of a crime.            Appellant argued that by pleading guilty to

aggravated assault (the more serious charge), Lutz had, in effect, admitted

guilt to two of the lesser included offenses of simple assault and recklessly


5
   The State Police Criminal History Record indicated that the criminal
trespass and criminal mischief charges were “[d]ismissed” on April 11, 2005.
(State Police Criminal History Record, 4/19/14 at 2; R-25a.)


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endangering another person.        The Lutz court found that denial of

expungement with respect to the two lesser included offenses was proper in

that circumstance. Appellant gleaned from Lutz that the denial of a request

for expungement is only proper when the plea bargain includes the dismissal

of lesser included offenses. He argued that since he pled guilty to the lesser

charge, this did not imply his guilt to the other charges of criminal trespass

(a felony), and criminal mischief. Therefore, expungement was proper.

      After a review of the record, consideration of relevant case law, and

oral argument,6 the trial court denied appellant’s petition.        The court

concluded that the criminal trespass and criminal mischief charges were

“dismissed” as part of the plea agreement, not nolle prossed.        The trial

court relied on the language of the guilty plea colloquy and noted that the

record contained no motion by the Commonwealth for nolle prosse or trial

court order granting nolle prosse.

            [A] review of the public file satisfies us by a
            preponderance of the evidence that Counts 1 and 2
            were “dismissed” rather than “nol prossed.” We
            make this finding based upon the language of the
            guilty plea statement executed by [appellant] which
            states that [appellant] understood “all other charges
            are dismissed thirty-one days after sentencing.”
            Moreover, a thorough review of the transcripts
            indicates no oral or written motion by the
            Commonwealth for nol pros and no order from the
            Trial Court granting a nol pros. In fact, the record,

6
  No evidence was presented. The Commonwealth stipulated that appellant
“would testify that there was a negative effect on his ability to find
employment because the charges remained on this record.” (Transcript of
proceedings, 11/26/14 at 2.)


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            with the exception of the guilty plea colloquy, is
            totally silent as to what happened with regard to
            Counts 1 and 2. The Commonwealth’s suggestion
            that the State Police record itself proves the charges
            were ‘dismissed’ is of little persuasion.[7]

            As in [Commonwealth v] Waughtel, [999 A.2d
            623 (Pa.Super. 2010)] [appellant] was permitted to
            plead to a lesser included charge and was sentenced
            accordingly. As part of the sentence, [appellant]
            was ordered to pay restitution for damages to a door
            which damage is specifically averred in Count 2
            Criminal Mischief.     At no time did [appellant’s]
            counsel argue that restitution would not be
            appropriate with respect to Count 3 only.

            As in Waughtel, the contractual relationship entered
            into by [appellant] and the Commonwealth was that
            [appellant] could avoid a trial in exchange for a plea
            to Count 3 only.      There being no discussion of
            expungement in the record, [appellant] would
            receive more than he bargained for in the plea
            agreement if the dismissed charges were expunged.

Trial court order, 12/4/14 at 2.

      On appeal, appellant raises one issue:

            I.     DID   THE    TRIAL  COURT    ABUSE  ITS
                   DISCRETION     WHEN    IT  DENIED   THE
                   APPELLANT’S PETITION FOR EXPUNGEMENT OF
                   HIS NON-CONVICTION CRIMINAL HISTORY/
                   ARREST RECORD?

Appellant’s brief at 4.




7
   The Commonwealth relied, in part, on information contained in the State
Police Criminal History Record. Counsel argued: “both the felony criminal
trespass and the misdemeanor criminal mischief, both have dispositions
listed as dismissed. And so at some point, somebody dismissed those
charges.” (Hearing transcript, 11/26/14 at 9; R-92a.)


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     In expungement matters, we review the decision of the trial court for

an abuse of discretion.       Commonwealth v. Wolfe, 749 A.2d 507, 509

(Pa.Super. 2000).

     The law in this Commonwealth with respect to the expungement of

charges that were dismissed as part of a negotiated plea agreement is well

settled. Where the Commonwealth agrees to dismiss charges as part of a

negotiated plea agreement in exchange for a guilty plea, a defendant is

generally not entitled to expungement of the dismissed charges.8 Lutz, 788

A.2d at 1000.       A plea agreement is quasi-contractual in nature and

expungement of the charges in those circumstances would “obliterate or seal

any record of those charges and thus leave no accurate record of the

contractual    relationship   entered   into   by   the   [appellant]   and   the

Commonwealth.” Id.




8
   The Lutz court explained the difference between requests for
expungement of charges that are nolle prossed and charges that the
Commonwealth agrees to dismiss under a plea agreement. The court
explained: “a nolle prosequi is a voluntary withdrawal by the prosecuting
attorney” which is “traditionally only . . . used in situations in which the
Commonwealth finds it has insufficient evidence to proceed with a
prosecution.” Lutz, 788 A.2d at 999. In cases where the charges are
nolle prossed, the trial court, under Commonwealth v. Wexler, 431 A.2d
877, 879-880 (Pa. 1981), balances 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 using the multi-factor
test. It is the Commonwealth’s burden to prove by clear and convincing
evidence that a Wexler balancing test is not required and that Lutz applies.
Commonwealth v. Hanna, 964 A.2d 923, 929 (Pa.Super. 2009).


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       In Waughtel, this court applied Lutz in a case with facts nearly

identical to the facts presented here.     In Waughtel, James Waughtel was

charged with three counts of aggravated assault, three counts of simple

assault, and one count of harassment as a result of an incident that occurred

during his employment as a prison guard.         On the day of trial, Waughtel

entered into a plea agreement and pled nolo contendere to summary

harassment. Although the docket indicated that the remaining charges were

nolle prossed, the notes of testimony revealed that the trial judge actually

dismissed the remaining counts. There was no discussion on the record that

the   Commonwealth      requested   that   the   charges   be    nolle   prossed.

Waughtel, 999 A.2d at 624.

       Waughtel filed a petition requesting expungement of the charges on

his   record   which   he   contended   adversely   affected    his   employment,

livelihood, and reputation. Id. The trial court reviewed the transcripts and

determined that the charges were dismissed as part of a plea agreement.

Id. at 626. The trial court concluded that Lutz precluded expungement of

the dismissed charges.

       On appeal to this court, Waughtel insisted that the charges were

nolle prossed.     He argued that the Commonwealth failed to meet its

burden under Wexler to demonstrate why the arrest record should not be

expunged.      This court affirmed the trial court’s determination that the

charges were dismissed noting that the trial court based its determination on



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its review of the record. Because the transcripts clearly confirmed that the

remaining charges were dismissed as part of the plea bargain as opposed to

being    nolle   prossed,   Wexler    did   not   apply      and    Lutz   precluded

expungement.

        Appellant contends that Lutz and Waughtel are not controlling

because “a review of the transcripts of both appellant’s plea and sentencing

hearings,   which   included   multiple   recitations   of    the   applicable   plea

agreement, indicates unequivocally that the [remaining] charges were not

dismissed by the [trial] Court.”   (Appellant’s brief at 15.)       He argues that

“defendants cannot unilaterally cause the dismissal of their own charges;

rather, dismissal of charges requires court action.          See Pa.R.Crim.P. 109,

319, 586, 587, etc.”9 (Appellant’s brief at 15.) He contends that neither the

trial court nor the Commonwealth caused the non-conviction charges to be

dismissed. He contends if the charges were, in fact, dismissed as part of the

plea agreement, there would be a court order in the record. Alternatively,

appellant asserts that Hanna applies and the case should be remanded to

the trial court to make a clear record as to whether charges were



9
   Pa.R.Crim.P. 109 clarifies when a defendant may be discharged or a case
dismissed due to a defect in form, content, or procedure. Pa.R.Crim.P. 319
sets forth the procedure for obtaining dismissal of charges upon completion
of ARD. Pa.R.Crim.P. 586 sets forth the criteria a defendant must satisfy
before the court has the discretion to dismiss charges that are not alleged to
have been committed by force or violence or threat thereof.
Pa.R.Crim.P. 587 authorizes a court to dismiss the prosecution for untimely
filing of information.


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nolle prossed.      He argues that “none of the recitations of the plea

agreement placed on the record indicate whether the remaining charges

were to be dismissed, withdrawn or nolle prossed.”         (Appellant’s brief at

16.)

       We have carefully reviewed the record and find that it fully supports

the trial court’s conclusion that the criminal trespass and criminal mischief

charges were dismissed as opposed to withdrawn or nolle prossed.

       First, there is no law or rule which requires the trial court to reduce a

plea agreement to a written order, or enter a separate order formally

dismissing charges that the Commonwealth has agreed to drop pursuant to

a plea agreement.10 The guilty plea colloquy is made part of the record and

serves as evidence of the parties’ agreement. Ordinarily, when a defendant

enters a guilty plea to one or more charges, disposition of the remaining

charges is discussed at the plea hearing. Admittedly, that did not happen

here as the transcripts are silent as to what happened to the criminal

trespass and criminal mischief charges. Nevertheless, we do not believe this

necessitates a remand because we are satisfied, based on our review of the




10
   The criminal rules cited by appellant apply to the trial court’s authority,
prior to trial or before a verdict is reached, to terminate the proceedings
against a defendant. They have no bearing on whether the trial court is
required to enter a written order dismissing charges that the Commonwealth
has agreed to drop pursuant to a plea agreement where the dismissal does
not terminate the proceedings.


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record as a whole, that the remaining charges were dismissed as opposed to

nolle prossed.

      The   guilty   plea   colloquy   was   part   of   the   record.   It   stated

incontrovertibly that: “all other charges are dismissed thirty-one days after

sentencing.” It was clear from the language of the guilty plea colloquy that

appellant pled guilty only to the defiant trespass charge and that “all other

charges” was a reference to the criminal trespass and criminal mischief

charges.11 When charges are nolle prossed, there will be some indication

on the record that the Commonwealth dropped these charges because it did

not have sufficient evidence to proceed to trial on the criminal trespass and

criminal mischief charges.     Here, the Commonwealth negotiated the plea

agreement one day before jury selection was to take place.               Appellant

admitted at the May 8, 2013 guilty plea hearing that he forcibly broke into

the victim’s apartment by kicking in her back door and in the process

damaged her door and lock.        Appellant agreed to pay restitution for the

damage he caused as set forth in the criminal mischief charge. These same

facts formed the underlying basis for all three charges. There is nothing to

suggest that the Commonwealth was not prepared to proceed to trial on all



11
   Moreover, the Pennsylvania State Police Criminal History Record indicated
that the criminal trespass and criminal mischief charges were “dismissed.”
Unlike the trial court, we see no reason not to rely on a State Police Criminal
History Record or to doubt its accuracy. 37 Pa.Code § 195.2 requires the
repository to maintain a complete and accurate criminal record as to the
disposition of each criminal charge brought against an individual.


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three charges.   In fact, appellant’s counsel conceded at the sentencing

hearing on June 16, 2013, that no jury would find appellant not guilty.

            THE COURT: Maybe a jury will find him not guilty.

            [APPELLANT’S COUNSEL]: Judge, there’s no doubt
            that he went into a residence when he got mad
            because he thought that woman stole his cell phone;
            but prior to the police even contacting him, he
            apologized, took the DVD player back --

            THE COURT: I understand.

            [APPELLANT’S COUNSEL]:      -- and started to fix the
            door.

Hearing transcript, 6/16/03 at 4; R-56a.

     Unlike in Hanna, the record is sufficiently clear. In Hanna, this court

concluded that the state of the certified record was such that it could not

determine what had actually occurred as to the plea agreement, i.e., the

guilty plea colloquy was not part of the record before this court.        Here,

however, the guilty plea colloquy was made part of the record and stated

indisputably that:   “all other charges are dismissed thirty-one days after

sentencing.” Further, as the trial court noted, there was neither a petition

requesting nor order granting nolle prosse.     Section 8932 of the Judicial

Code prohibits the district attorney from entering a nolle prosse without

court approval at any time after the filing of an information. That section

provides:

            After the commencement of a criminal matter by the
            filing of an information or otherwise, the district
            attorney shall not enter a nolle prosequi or dispose


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            of the matter or discharge a prisoner from custody
            by means of a proceeding in lieu of a plea or trial
            without having obtained the approval of the court.

42 Pa.C.S.A. § 8932. If the criminal mischief and criminal trespass charges

were disposed of by nolle prosse, the record would contain an appropriate

motion and evidence of the court’s approval.

      Finally, Appellant urges that expungement of the second degree felony

charge is proper here because when he pled guilty to defiant trespass, he

did not, in effect, admit any facts that formulate the basis of criminal

trespass. He contends that the trial court abused its discretion because it

failed to consider the lesser included nature of the charge to which he pled

guilty when it denied his expungement request. He argues that in denying

expungement, the court in Lutz placed “significant emphasis” on Chad Lutz’s

guilty plea to aggravated assault, the underlying facts of which constituted

culpability for the dismissed charges of simple assault and recklessly

endangering another person. (Appellant’s brief at 11.) He claims that in the

instant case, he pled guilty to the lesser charge of defiant trespass, and

thus, his guilty plea did not admit to any facts that would demonstrate

culpability for criminal trespass.    Therefore, unlike in Lutz, there was no

admission   of   culpability   on    the   remaining   charges   that   precluded

expungement.

      Contrary to appellant’s interpretation, Lutz does not stand for the

proposition that expungement of dismissed charges is precluded only where



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the guilty plea involves a charge that is more serious than the dismissed

charges.   In fact, Waughtel, which relied on Lutz, involved the same

circumstances as presented here. There, James Waughtel pled guilty to a

lesser charge of summary harassment in exchange for the dismissal of

aggravated assault and simple assault charges. As in the instant case, the

Commonwealth bargained with appellant to avoid a trial on the more serious

charge in exchange for a plea to a lesser charge.      The fact that appellant

pled guilty to a lesser charge does not mandate expungement of the more

serious charge.

      Based upon the foregoing, we conclude that the trial court did not

abuse its discretion in determining that the Commonwealth had carried its

burden of proving that Lutz applied and that appellant’s expungement

petition should be denied. Accordingly, we affirm the trial court’s order.

      Order affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 8/18/2015




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