J-S09022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

MEGAN LANCIANO

                            Appellee                  No. 218 EDA 2015


               Appeal from the Order Entered December 16, 2014
               In the Court of Common Pleas of Delaware County
                Criminal Division at No: CP-23-CR-0007797-2010


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 24, 2017

        The Commonwealth appeals from the December 16, 2014 order of the

Court of Common Pleas of Delaware County (“trial court”), granting Appellee

Megan Lanciano’s petition for expungement.       Upon review, we vacate and

remand.

        On March 21, 2011, following the Commonwealth’s refusal to admit

Appellee into the accelerated rehabilitative disposition (“ARD”) program,

Appellee entered into a negotiated guilty plea to driving under the influence

(“DUI”), highest rate, under 18 Pa.C.S.A. § 3802(c).           Pursuant to her

negotiated guilty plea, Appellee was sentenced to six months of intermediate

punishment (with the first ten days of electronic home monitoring).

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        On      March    26,   2014,   Appellee    petitioned   the   trial   court   for

expungement of her 2011 DUI conviction.                The trial court granted her

petition for expungement. The Commonwealth timely appealed.

        On May 14, 2015, during the pendency of the appeal, the trial court

issued     an    order    memorializing    the    Commonwealth’s      and     Appellee’s

stipulation that the trial court had erred in granting Appellee’s petition for

expungement. On May 24, 2016, the trial court issued an order, rescinding

its order granting Appellee’s petition for expungement.1

        On appeal,2 the Commonwealth argues that the trial court erred as a

matter of law in granting Appellee’s petition for expungement because she

“did not satisfy any of the qualifications for expungement enumerated in

Section 9122,” 18 Pa.C.S.A. § 9122. Commonwealth’s Brief at 4. We agree.

        Addressing the law regarding expungement of criminal records

generally, our Supreme Court has explained:

               There is a long-standing right in this Commonwealth to
        petition for expungement of a criminal arrest record, a right that
        is an adjunct of due process. Carlacci v. Mazaleski, [] 798
        A.2d 186, 188 ([Pa.] 2002). The decision to grant or deny a
____________________________________________


1
  The trial court’s May 14, 2015 and May 24, 2016 orders have no legal
effect because they were issued during the pendency of the instant appeal.
See 42 Pa.C.S.A. § 5505 (“Except as otherwise provided or prescribed by
law, a court upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or allowed.”)
(emphasis added). Accordingly, the trial court was without jurisdiction to
rescind the December 16, 2014 order granting expungement.
2
    Appellee declined to file a brief on appeal.



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      petition to expunge rests with the sound discretion of the trial
      court, and we review that court’s decision for abuse of
      discretion. Commonwealth v. Waughtel, 999 A.2d 623, 624–
      25 (Pa. Super. 2010); Commonwealth v. A.M.R., 887 A.2d
      1266, 1268 (Pa. Super. 2005).

            Judicial analysis and evaluation of a petition to expunge
      depend upon the manner of disposition of the charges against
      the petitioner. When an individual has been convicted of the
      offenses charged, then expungement of criminal history records
      may be granted only under very limited circumstances that are
      set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania
      State Police, [] 983 A.2d 627, 633 ([Pa.] 2009).


Commonwealth v. Moto, 23 A.3d 989, 993 (Pa. 2011) (emphasis added).

“[A] guilty plea is equivalent to a conviction” under Section 9122.

Commonwealth v. Furrer, 48 A.3d 1279, 1282 (Pa. Super. 2012), appeal

denied, 62 A.3d 378 (Pa. 2013).

      Section 9122 of the Criminal History Record Information Act provides

in pertinent part:

      (a) Specific proceedings.--Criminal history record information
      shall be expunged in a specific criminal proceeding when:

         (1) no disposition has been received or, upon request for
         criminal history record information, no disposition has
         been recorded in the repository within 18 months after the
         date of arrest and the court of proper jurisdiction certifies
         to the director of the repository that no disposition is
         available and no action is pending. Expungement shall not
         occur until the certification from the court is received and
         the   director   of     the   repository  authorizes    such
         expungement;

         (2) a court order requires that such nonconviction data be
         expunged; or

         (3) a person 21 years of age or older who has been
         convicted of a violation of section 6308 (relating to
         purchase, consumption, possession or transportation of
         liquor or malt or brewed beverages), which occurred on or
         after the day the person attained 18 years of age, petitions
         the court of common pleas in the county where the
         conviction occurred seeking expungement and the person
         has satisfied all terms and conditions of the sentence
         imposed for the violation, including any suspension of

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J-S09022-17


          operating privileges imposed pursuant to section 6310.4
          (relating to restriction of operating privileges).   Upon
          review of the petition, the court shall order the
          expungement of all criminal history record information and
          all administrative records of the Department of
          Transportation relating to said conviction.

       (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 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(a),(b).

       Instantly, the parties and the trial court agree that Appellee failed to

plead and prove any subsection of Section 9122 under which she was

entitled to have her 2011 DUI conviction expunged.3 Accordingly, we agree

with the Commonwealth that the trial court erred in granting Appellee’s

petition for expungement.

____________________________________________


3
  In its Pa.R.A.P. 1925(a) opinion, the trial court stated “[t]o ensure the
original grant of expungement is properly vacated, and rescinded, the trial
court is respectfully requesting the above matter to be remanded to the
jurisdiction of the undersigned for disposition in accordance with the parties’
intentions pursuant to the ‘stipulation and order.’” Trial Court Opinion,
8/8/16, at 2.



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J-S09022-17



     Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2017




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