J. A18002/15


                               2015 PA Super 197

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                     v.                 :
                                        :
PAMELA JO BALDWIN,                      :          No. 1812 MDA 2014
                                        :
                          Appellant     :


            Appeal from the Order Entered September 26, 2014,
               in the Court of Common Pleas of York County
             Criminal Division at No. CP-67-CR-0003948-2011


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


OPINION BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 16, 2015

      Appellant, Pamela Jo Baldwin, appeals from the order of the Court of

Common Pleas of York County entered on September 26, 2014, which

denied appellant’s Petition to Direct Expungement of Case Pursuant to

Accelerated Rehabilitative Disposition (“ARD”). We reverse.

      On May 17, 2011, Pennsylvania State Police charged appellant with

theft by unlawful taking pursuant to 18 Pa.C.S.A. § 3912(A).     On July 15,

2011, appellant filed an ARD application with the York County District

Attorney’s Office.    On October 25, 2011, appellant was formally accepted

into the ARD program with a 12-month term of probation supervision. The

trial court imposed conditions of the ARD program including, inter alia, that

appellant perform 35 hours of community service and pay costs, fees, and

restitution. (Docket #8.)
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        On September 26, 2012, the York County Adult Probation and Parole

Department (“Probation Department”) filed an ARD violation petition

pursuant to Pa.R.Crim.P. 318. The Probation Department alleged that

appellant failed to pay costs, fees, and restitution and comply with her

condition of community service.1     A hearing was held on December 27,

2012.    Appellant’s counsel stated that appellant was starting a new job in

two weeks and would start making payments at that time. The trial court

ordered that appellant’s “period of supervision be extended 12 months.”

(Order, 12/27/12 at 1.)    The extension was granted from the date of the

hearing. The period of supervision was modified to expire on December 26,

2013.2

        On December 3, 2013, the Probation Department filed a second ARD

violation petition due to appellant’s continued failure to pay costs, fees, and

restitution. The Probation Department averred that appellant’s most recent

payment was on July 24, 2013, and that appellant owed a balance of

$1,208.78. A hearing was held on January 29, 2014. Immediately prior to

the hearing, appellant paid her costs and restitution in full. The Probation



1
 The initial 12-month period of supervision was set to expire on October 25,
2012.
2
  The trial court has acknowledged in hindsight that it should not have
extended the ARD supervision for another year from December 27, 2012,
since that effectively made the period of supervision longer than the
two years permitted under Pa.R.Crim.P. 316(B). (Trial court opinion, 1/8/15
at 2.)


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Department verbally moved to withdraw the violation petition.        The trial

court granted the Probation Department’s request to withdraw the violation

petition and authorized the Department to close the case. (Order, 1/29/14

at 1.) The assistant district attorney for the Commonwealth was present at

that hearing and did not object to dismissal of the charges. There was no

request by any party that the ARD program be “terminated” or any

suggestion that the Commonwealth intended to proceed on the charges

under Pa.R.Crim.P. 318 as a result of condition violations.

        After the hearing, appellant contacted the Probation Department and

requested expungement of her arrest record.        The Probation Department

refused because appellant did not complete the ARD program within the

two-year limit set forth in Pa.R.Crim.P. 316(B), which provides that: “[t]he

period of such [ARD] program for any defendant shall not exceed

two years.”    According to the Probation Department, the two-year period

imposed by Pa.R.Crim.P. 316(B) expired on October 25, 2013, two years

from the date appellant was first placed on ARD. The Probation Department

determined that appellant’s failure to complete the program within two years

effectively removed her from the purview of ARD such that she was not

qualified for automatic expungement.

        On April 29, 2014, appellant filed a petition to direct expungement of

case.    The petition was served on the assistant district attorney for the

Commonwealth.        The Commonwealth did not file objections to the



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expungement. A hearing was held on June 24, 2014. The assistant district

attorney for the Commonwealth was present at the hearing and did not

object to the expungement.       In fact, according to the Commonwealth,

“because [the] Probation [Department] withdrew the violation, it was treated

as if she did, if fact, pay everything off within the two years.”   (Hearing

transcript, 6/24/14 at 2.)

      The trial court nevertheless believed it was authorized to consider the

“objections” of the Probation Department and “exercise its discretion” to

deny expungement.      By order dated September 26, 2014, the trial court

denied appellant’s petition for expungement.

            [T]he rule on expungement does not make
            expungement automatic if there are objections,
            which indicates that despite the mandatory language
            contained in Rule 320(A), the court still maintains
            discretion in granting or denying expungement.

            ....

            [T]he Defendant did not complete the ARD program
            in the allotted two year time frame as required by
            Rule 316(B)…Because the Defendant failed to
            complete her ARD conditions within two years, we
            concluded that she did not ‘successfully’ complete
            the program, and therefore, should not benefit from
            expungement of her record pursuant to the rules
            governing the ARD program.

Trial court opinion, 9/26/14 at 3-4.

      On appeal, appellant raises two issues:

            1.     Whether the trial court erred as a matter of
                   law when it denied Appellant’s request for an
                   expungement when the trial court closed


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                   Appellant’s ARD case and expungement is
                   mandatory pursuant to Pa.R.Crim.P. 320(A)
                   under the circumstances?

            2.     Whether the trial court erred as a matter of
                   law when it denied Appellant’s request for
                   expungement absent an objection from the
                   ‘attorney for the Commonwealth,’ the only
                   party with authority to object to an ARD
                   expungement under Pa.R.Crim.P. 319 and
                   Pa.R.Crim.P. 320(B)?

Appellant’s brief at 4.

      Appellant first contends that the trial court was required to order

automatic expungement of her arrest record at the time it ordered the

dismissal of the charges. We agree.

      It is undisputed that, notwithstanding the amount of time it took for

appellant to complete the ARD program, appellant’s case was disposed of

under the ARD program.3 Pa.R.Crim.P. 320 provides:


3
  As the trial court pointed out, neither party followed the correct procedure
to dismiss the charges, to expunge appellant’s arrest record, or to make
objections. (Trial court opinion, 9/26/14 at 3.) Indeed, the Probation
Department’s oral request to withdraw violation petition at the January 29,
2014 hearing, and the trial court’s grant of said request, obviated the need
for appellant to file a formal motion for dismissal of the charges pursuant to
Pa.R.Crim.P. 319, which provides:

            When     the    defendant  shall   have  completed
            satisfactorily the program prescribed and complied
            with its conditions, the defendant may move the
            court for an order dismissing the charges. This
            motion shall be supported by affidavit of the
            defendant and by certification of the agency or
            person charged with supervising the defendant’s
            program, if any. A copy of the motion shall be
            served on the attorney for the Commonwealth who


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              (A)   When the judge orders the dismissal of the
                    charges against the defendant, the judge also
                    shall   order   the   expungement    of   the
                    defendant’s arrest record, subject to the
                    provisions of paragraph (B). The expungement
                    order shall contain the same information that
                    is required in Rule 490(C) in summary cases
                    and Rule 790(C) in court cases. (Emphasis
                    added.)

              (B)   If the attorney for the Commonwealth objects
                    to the automatic expungement, the objections
                    shall be filed with the judge, together with the
                    objections to dismissal, if any, within 30 days
                    after service of a motion for dismissal under
                    Rule 319, and copies of the objections shall be
                    served on the defendant or the defendant’s
                    attorney. (Emphasis added.)

              (C)   If the objections are filed, the judge shall hold
                    a hearing on the objections, affording all
                    parties the opportunity to be heard.

       We find the language of Pa.R.Crim.P. 320 to be clear and unambiguous

in   its   terms.    The   rule   straightforwardly   indicates   that   automatic

expungement is mandatory when a judge orders the dismissal of charges

against the defendant upon completion of ARD. The only exception is when




              shall within 30 days after service advise the judge of
              any objections to the motion, serving a copy of such
              objections on the defendant or the defendant’s
              attorney. If there are no objections filed within the
              30-day period, the judge shall thereafter dismiss the
              charges against the defendant.          If there are
              objections filed with regard to the dismissal of the
              charges, the judge shall proceed as set forth in
              Rule 318.


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“the   attorney     for   the    Commonwealth       objects   to   the   automatic

expungement.”

       Instantly, the trial court’s January 29, 2014 order, dismissing the

charges   against    appellant    pursuant   to    an   ARD   program,    did   not

contemporaneously order the expungement of appellant’s arrest record.

This was error. The trial court was required to order the expungement of

appellant’s arrest record at the time it ordered the dismissal of the charges

pursuant to the mandatory language of Pa.R.Crim.P. 320(A).

       The trial court bases its determination to deny expungement on the

objections of the Probation Department that appellant had not completed

ARD within two years pursuant to Rule 316.           However, such an objection

would go to whether appellant successfully completed ARD such that

dismissal under Rule 319 should not be granted. In this case, the Probation

Department withdrew its objection to the dismissal of the charges and the

trial court did in fact dismiss the charges based on completion of ARD.

Nothing in Rule 320 on expungement allows for court discretion upon

completion of ARD and the dismissal of the charges pursuant thereto unless

as discussed supra, the Commonwealth objects to expungement based on

“an overriding societal interest in retaining the record.” Commonwealth v.

Armstrong, 434 A.2d 1205 (Pa. 1981).              Clearly, no such objection was

made by the Commonwealth in this case.




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     Moreover, the trial court, with the approval of the assistant district

attorney for the Commonwealth and the Probation Department, extended

the time within which appellant was permitted to comply with her ARD

program conditions beyond the two-year limit.          The assistant district

attorney for the Commonwealth and appellant’s probation officer were at the

hearing when the extension was granted but neither objected to or raised

any concerns about violations of the Rule 316(B) two-year time limit. At no

time was appellant made aware that her right to expungement would be

compromised as a result of the extension.      It would be unconscionable to

punish appellant and entertain the Probation Department’s objections on

these grounds when: (1) the Probation Department itself was instrumental

in bringing about the very violation of which it now complains; and (2) the

Commonwealth’s attorney did not object to the automatic expungement.

     In sum, automatic expungement was mandatory in this matter. The

trial court’s January 29, 2014 order, dismissing the charges after the

violation allegation was withdrawn, effectively resolved the case as an ARD

disposition. Pa.R.Crim.P. 320 unambiguously provides that when the judge

orders dismissal of the charges upon successful completion of the ARD

conditions, the judge must also order the expungement of the defendant’s

arrest record.   The trial court abused its discretion when it failed to order

automatic   expungement     and   considered   objections   of   the   Probation




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Department     and   denied   expungement        absent   an   objection   by   the

Commonwealth’s attorney.

      The order of the trial court is reversed, and the case is remanded to

the trial court with instructions to enter an order expunging the record of

appellant’s arrest. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2015




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