                                   FINAL REPORT1


                         Amendment of Rules 490 and 490.1

     SUMMARY EXPUNGEMENT FOR DEFENDANTS UNDER THE AGE OF 18



        On March 1, 2019, effective July 1, 2019, upon the recommendation of the
Criminal Procedural Rules Committee, the Court amended Rules 490 (Procedure for
Obtaining Expungement of Summary Cases; Expungement Order) and 490.1
(Procedure for Obtaining Expungement of Truancy Cases; Expungement Order) to
clarify the procedures for the expungement of summary cases for defendants under the
age of 18 in two circumstances: (1) expungement under 18 Pa.C.S. §9123(a); and (2)
the expungement of summary convictions and delinquency adjudications that result
from a failure to comply with the sentence on the underlying summary convictions.
These amendments have adopted in conjunction with amendments to Pa.R.J.C.P. 170
and 172.

        The Criminal Procedural Rules Committee and the Juvenile Court Procedural
Rules Committee, by means of a joint subcommittee, explored rule changes to address
two issues regarding the expungement of summary offenses when the defendant is
under 18 years old: (1) expungement under 18 Pa.C.S. §9123(a); and (2) the
expungement of summary convictions and delinquency adjudications that result from a
failure to comply with the sentence on the underlying summary convictions.

       There are two statutes that permit the expungement of summary
convictions. The first statute, 18 Pa.C.S. § 9122(b)(3)(i), generally applies without
reference to the age of the defendant and requires the defendant to be free from arrest
or prosecution for five years. This statute also contains a provision for the
expungement of underage drinking convictions when the defendant is 20 years or older,
provided the violation occurred when the defendant was at least 18 years old.

       The second statute, 18 Pa.C.S. § 9123(a), applies to “juvenile records” and
permits the expungement of a conviction for a summary offense if the defendant is 18
years or older and six months have elapsed after satisfying the sentence. The statute

1The Committee's Final Reports should not be confused with the official Committee
Comments to the rules. Also, note that the Supreme Court does not adopt the
Committee's Comments or the contents of the Committee's explanatory Final Reports.



Summary Expungement for Defendants Under 18 Final Report: 03/01/2019
also contains a provision for the expungement of underage drinking convictions when
the defendant is 18 years or older, provided the violation occurred when the defendant
was under 18 years old.

      Prior to this amendment, Pa.R.Crim.P. 490 (Procedure for Obtaining
Expungement in Summary Cases; Expungement Order) cited to Section 9122 and not
Section 9123(a). Summary offenses are specifically excluded from the Juvenile Act and
Pa.R.J.C.P. 170 (Motion to Expunge or Destroy Records) did not recognize Section
9123(a) as it pertains to summary convictions when the defendant is under 18 years of
age.

       The Committees did not see merit in establishing two different procedures to
expunge the same conviction in the magisterial district (“MDJ”) court based on the age
of the defendant. Therefore, Pa.R.Crim.P. 490 has been amended to include reference
to 18 Pa.C.S. § 9123(a) so that these expungements proceed in accordance with the
Criminal Rules. A cross-reference to Rule 490 has been added to the Comment to
Pa.R.J.C.P. 170.

        The other issue that the Committees examined was what procedures should be
used to expunge both the summary conviction and the juvenile record when the
conviction is certified pursuant to Pa.R.J.C.P. 200(3) and 42 Pa.C.S. § 6304.1.
Pa.R.J.C.P. 200(3) and 42 Pa.C.S. § 6304.1 provide that a delinquency petition may be
filed in a case where a juvenile has failed to comply with the sentence arising from a
summary conviction. The question was whether a petition pursuant to Pa.R.Crim.P.
490 needed to be filed to expunge the summary conviction and another petition
pursuant to Pa.R.J.C.P. 170 needed to be filed to expunge the certification and any
subsequent juvenile court record.

        The Committees recognize that requiring an expungement petition in the criminal
court for the summary offense and another expungement petition in the juvenile court
may be burdensome. However, it was observed that eligibility for expungement of the
MDJ record and the juvenile record are so different that one court should not expunge
both records. For example, a curfew violation may result in a summary conviction and
fine. If the minor fails to comply with the sentence (i.e, pay the fine), then the matter
may be certified to the juvenile court. A majority of these types of certifications result in
an informal adjustment, consent decree, or entry into a diversion program rather than a
petition being filed. Consequently, the minor would be entitled to expungement of the
juvenile record pursuant to 18 Pa.C.S. § 9123(a)(2) six months after completing the
program. However, the underlying summary offense could not be expunged until the
defendant was at least 18 years of age. See 18 Pa.C.S. §§ 9123(2.1), (2.2). The minor
could be eligible for expungement of the juvenile record before being eligible for
expungement of the summary conviction. Accordingly, the Committees agreed to
recommend a two-petition procedure. The Comment to Pa.R.Crim.P. 490 has been
revised to inform readers of the dual tracks for the expungement of certified failure to
comply cases and the underlying summary offense.

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      Finally, a cross-reference to the Rule 490 procedures for expungement of
summary cases other than truancy has been added to the Comment to Rule 490.1
Procedure for Obtaining Expungement of Truancy Cases; Expungement Order).




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