             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Craig Eugene Redding,                          :
                 Petitioner                    :
                                               :
                v.                             :
                                               :
Pennsylvania State Police,                     :     No. 258 C.D. 2018
                   Respondent                  :     Submitted: December 11, 2018



BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                              FILED: January 11, 2019


                Craig Eugene Redding (Petitioner) petitions for review of the February
23, 2018 order of an administrative law judge (ALJ) of the Office of the Attorney
General that denied Petitioner’s challenge to the grading of his 1976 receiving stolen
property conviction. Upon review, we affirm.
                On April 30, 1976, Petitioner pled guilty to one count of theft by
receiving stolen property1 graded as a misdemeanor of the first degree (RSP
conviction).2 Reproduced Record (R.R.) at 46a. A certified copy of the indictment

       1
           18 Pa. C.S. § 3925.
       2
           18 Pa. C.S. § 3903 mandates the grading of theft offenses. The statutory language in
effect at the time of Petitioner’s crime and prosecution provided as follows:

                § 3903. Grading of theft offenses.
and plea signed by Petitioner on April 30, 1976 (indictment/plea) included a
handwritten portion underneath where “I PLEAD” was written that indicated
Petitioner pled “[g]uilty to be treated for purposes of sentencing as a misdemeanor
of [the] third degree[.]” Notes of Testimony, Jan. 8, 2018 (N.T.), Exhibit D. At
sentencing on June 28, 1976, the Court of Common Pleas of Adams County
suspended Petitioner’s sentence for the RSP conviction and instead placed him on
two years’ probation. R.R. at 48a-49a.




               (a) Felony of the third degree.–Theft constitutes a felony of the
               third degree if the amount involved exceeds $2,000, or if the
               property stolen is a firearm, automobile, airplane, motorcycle,
               motorboat or other motor-propelled vehicle, or in the case of theft
               by receiving stolen property, if the receiver is in the business of
               buying or selling stolen property.

               (b) Other grades.–Theft not within subsection (a) of this section
               constitutes a misdemeanor of the first degree, except that if the
               property was not taken from the person or by threat, or in breach of
               a fiduciary obligation, and the actor proves by a preponderance of
               the evidence that:

                  (1) the amount involved was $50 or more but less than $200
                  the offense constitutes a misdemeanor of the second degree;
                  or

                  (2) the amount involved was less than $50 the offense
                  constitutes a misdemeanor of the third degree.

               (c) Valuation.–The amount involved in a theft shall be deemed to
               be the highest value, by any reasonable standard, of the property or
               services which the actor stole or attempted to steal. Amounts
               involved in thefts committed pursuant to one scheme or course of
               conduct, whether from the same person or several persons, may be
               aggregated in determining the grade of the offense.

18 Pa. C.S. § 3903, effective June 6, 1973.



                                                2
                Forty years later, on June 22, 2016, Petitioner, through counsel, filed a
Request for Individual Access and Review with the Pennsylvania State Police (PSP)
pursuant to Section 9151 of the Criminal History Record Information Act (CHRIA),
18 Pa. C.S. §§ 9101-9183.3 R.R. at 38a-40a. In response, on April 28, 2017, PSP
provided Petitioner with a copy of his Record of Arrest and Prosecution (RAP) sheet,
which reflected that Petitioner’s RSP conviction was graded as a misdemeanor of
the first degree. R.R. at 41a-43a.
                On May 24, 2017, Petitioner filed a timely challenge to the information
contained in his RAP sheet. R.R. at 44a. Specifically, Petitioner’s challenge alleged:

                10/13/1975 offense date for [r]eceiving stolen property
                docketed at CR-20-70 is not accurate. According to my
                research, the Adams County Clerk of Courts does not have
                information on record for this record.

R.R. at 44a. PSP reviewed Petitioner’s challenge and, on June 8, 2017, found it to
be invalid. R.R. at 53a.4



       3
          Under CHRIA, PSP serves as the central repository for the collection, compilation,
maintenance and dissemination of criminal history record information in Pennsylvania. 18 Pa.
C.S. § 9102(a). CHRIA Section 9151 provides individuals with the right to review, challenge,
correct, and appeal the accuracy and completeness of their criminal history record information. 18
Pa. C.S. § 9151(a).
       4
           PSP’s challenge response explained:

                Per fingerprint arrest card submitted by the Gettysburg police
                department for arrest dated November 7, 1975, the offense date is
                listed as October 13, 1975 and is reflected as such on your criminal
                history.

R.R. at 53a.



                                                 3
              Petitioner appealed,5 alleging that the RAP sheet court data indicating
the grading of his RSP conviction as a misdemeanor of the first degree was incorrect,
and that the conviction should be properly graded as a misdemeanor of the third
degree. R.R. at 6a-12a. The ALJ conducted a hearing on the matter on January 8,
2018, and on February 23, 2018, issued her Findings and Reasons for Denying
Request for Relief (ALJ Opinion) and an order denying Petitioner’s challenge.
Petitioner timely appealed to this Court.6
              Petitioner now contends that PSP failed to adduce substantial evidence
to prove the accuracy of the grading of his RSP conviction as a misdemeanor of the
first degree. See Petitioner’s Brief at 9-17. Petitioner argues that his testimony, the
testimony of PSP’s witness, and the certified copy of his signed indictment entered
into evidence at the hearing before the ALJ illustrate that Petitioner actually pled
guilty to receiving stolen property graded as a third degree misdemeanor, not a first
degree misdemeanor. Id. We disagree.


       5
         Petitioner filed his original Appeal from the Determination of the Pennsylvania State
Police (original appeal) on July 10, 2017. See R.R. at 1a-5a. In his original appeal, Petitioner
challenged the RAP sheet information because the Adams County Clerk of Courts had no records
regarding the RSP conviction information that appeared on Petitioner’s RAP sheet. See R.R. at
2a. However, upon the discovery that the RSP conviction had been erroneously listed on
Petitioner’s RAP sheet under the wrong docket number (CR-20-70 instead of the correct docket
number of CC-20-76), the Clerk of Courts located the records pertaining to Petitioner’s RSP
conviction. Thereafter, on July 21, 2017, Petitioner filed his Amended Appeal from the
Determination of the Pennsylvania State Police (amended appeal), which alleged his RSP
conviction should be graded as a misdemeanor of the third degree. R.R. at 6a-12a. This Court
now addresses Petitioner’s amended appeal.
       6
         “The Court’s review of an order of an ALJ of the Office of Attorney General relating to
CHRIA is limited to determining whether constitutional rights were violated, whether an error of
law was committed or whether necessary findings of fact are supported by substantial evidence.”
Dunbar v. Pa. State Police, 902 A.2d 1002, 1004 n.2 (Pa. Cmwlth. 2006). “Substantial evidence
is such relevant evidence a reasonable person might find sufficient to support the [factfinder’s]
findings.” Frog, Switch & Mfg. Co. v. Workers’ Comp. Appeal Bd. (Johnson), 106 A.3d 202, 206
(Pa. Cmwlth. 2014).
                                               4
             CHRIA Section 9151 grants individuals the right to review, challenge,
correct and appeal the accuracy and completeness of their criminal history record
information. 18 Pa. C.S. § 9151(a). To challenge the accuracy of criminal record
information, a petitioner must specify which portion of the record is incorrect and
what the correct version should be. 18 Pa. C.S. § 9152(c). The criminal justice
agency that maintains the record in question then conducts a review of the challenge
and has the burden of proving the accuracy of the record. 18 Pa. C.S. § 9152(d). If
the agency determines a challenge to be invalid, the individual may then appeal to
the Office of the Attorney General, which must conduct a de novo hearing on the
matter. 18 Pa. C.S. § 9152(e). At such a hearing, the agency maintains the burden
of proving the accuracy of the information. Id.
             In the instant matter, PSP submitted the following exhibits relative to
Petitioner’s RSP conviction, without objection: Petitioner’s June 22, 2016 Request
for Individual Access and Review (Exhibit A); the Criminal Record Check and RAP
sheet produced by PSP (Exhibit B); the Review of Criminal Records Information
form containing Petitioner’s challenge to the RAP sheet information and PSP’s
determination that the determination was invalid (Exhibit C); certified copies of the
criminal complaint, indictment/plea, and sentence regarding the RSP conviction
(Exhibit D); Petitioner’s fingerprint card from his November 7, 1975 arrest
preceding the RSP conviction (Exhibit E); PSP’s June 8, 2017 Criminal History
Challenge Response (Exhibit F); and a copy of the versions of 18 Pa. C.S. §§ 3903
& 3925 in effect on the date of the underlying crime (Exhibit G). PSP also provided
the testimony of Jeremy Maldonado (Maldonado), a legal assistant with PSP, who
requested, received and reviewed records relating to Petitioner’s RSP conviction.
See N.T. at 8-18. Maldonado testified that his examination of the relevant criminal


                                         5
records revealed that Petitioner pled guilty to theft by receiving stolen property
worth $350.00, a misdemeanor of the first degree. N.T. at 9-11. Maldonado also
specifically testified that he believed the handwritten portion of the indictment/plea
that read “[g]uilty to be treated for purposes of sentencing as a misdemeanor of third
degree” indicated that Petitioner pled guilty to a first degree misdemeanor that would
then be treated as a misdemeanor of the third degree at sentencing. N.T. at 10-11.
On cross-examination, Maldonado conceded that often individuals are charged with
one crime and ultimately plead guilty to another. N.T. at 15.
             Petitioner also testified at the hearing before the ALJ. See N.T. at 18-
22. Petitioner testified that he entered into an agreement with the prosecution in his
theft case whereby he would testify against the actual perpetrator of the theft and, in
exchange, his own theft charges would be treated as a misdemeanor of the third
degree for all purposes. N.T. at 19-20.
             Based on the above evidence, the ALJ concluded as follows:

             PSP has sustained its burden where it has demonstrated
             that, where the value of the theft exceeded $200.00, the
             grading of receiving stolen property at the relevant time
             was a first degree misdemeanor. The record reflects that
             Petitioner pled guilty to the offense as charged with his
             sentence to be treated as a third degree misdemeanor.
ALJ Opinion at 3 (pagination supplied).
             Substantial evidence of record exists to support the ALJ’s order.
Petitioner’s RAP sheet and the underlying court documents establish that Petitioner
was charged with and pled guilty to receiving stolen property in excess of $200.00.
The grading of this crime as a misdemeanor of the first degree comported with the
then-existing statute and the facts of the case.         Petitioner’s testimony and
interpretation of the criminal records notwithstanding, the two-year probationary

                                          6
sentence Petitioner received as a result of the RSP conviction comported with the
handwritten portion of the indictment that indicated Petitioner was to receive a
sentence consistent with a misdemeanor of the third degree, despite having pled
guilty to a misdemeanor of the first degree. Further, the handwritten portion of the
indictment/plea supports that Petitioner entered a guilty plea to a misdemeanor of
the first degree, but was expecting to be sentenced in conformity with misdemeanor
of the third degree norms.
              We acknowledge that Maldonado agreed on cross-examination with
Petitioner’s counsel’s suggestion that the handwritten portion of the indictment/plea
that indicated Petitioner was pleading guilty so that the crime would be treated as a
misdemeanor of the third degree “would have essentially the same meaning or the
same idea [that Petitioner was pleading] guilty to be treated for purposes of grading
as a misdemeanor of the third degree[.]” See Petitioner’s Brief at 11-12.7 We further
acknowledge, however, that the plain language of the handwritten notation on the

       7
         Petitioner’s counsel asked Maldonado the following, somewhat confusing, questions on
cross-examination:

              Q. Would you agree with me that where it says guilty to be treated
              for purposes of sentencing as a misdemeanor of the third degree, it
              would be just as fair to say that that means guilty to be treated for
              purposes of grading as a misdemeanor of the third degree?

              A. I’m sorry. Could you repeat that again?

              Q. Would you agree with me that it would be fair to say where it
              says guilty to be treated for purposes of sentencing as a
              misdemeanor of third degree, it would have essentially the same
              meaning or the same idea, guilty to be treated for purposes of
              grading as a misdemeanor of third degree?

              A. Yes.

N.T. 1/8/2018 at 15-16.

                                               7
indictment/plea that states that Petitioner was entering a plea of guilty “to be treated
for purposes of sentencing as a misdemeanor of [the] third degree” indicates only
that Petitioner pled guilty to a first degree misdemeanor but would then be sentenced
as though the crime for which he was convicted was a third degree misdemeanor.
The plain language makes no mention of the grading of the offense. The ALJ did
not agree with Petitioner’s claim that the response of PSP’s legal assistant to
counsel’s hypothetical cross-examination questioning regarding the handwritten
portion of the 40-year-old indictment/plea proved that Petitioner in fact pled guilty
to a third degree misdemeanor as opposed to a first degree misdemeanor. We do not
find this determination to be in error. Instead, we note that, had Petitioner actually
pled guilty to a third degree misdemeanor as he alleges, the handwritten portion of
the indictment/plea that indicates that he was to be sentenced as though he had pled
guilty to a third degree misdemeanor would have served no purpose and been
logically unnecessary. Accordingly, the handwritten notation on the indictment/plea
indicating that the expected sentence would be imposed as though Petitioner pled
guilty to a third degree misdemeanor confirms that Petitioner was, in fact, pleading
guilty to something other than a third degree misdemeanor. We decline Petitioner’s
invitation to use Maldonado’s testimony to inject ambiguity into the meaning of the
signed indictment/plea where none is apparent from the plain language employed
and where the ALJ found none.
             Petitioner also argues that the ALJ incorrectly employed a
preponderance of the evidence standard to PSP’s burden of proof in determining his
appeal and that the ALJ should instead have employed a clear and convincing
evidence standard. See Petitioner’s Brief at 17-20. He is incorrect.




                                           8
               Regarding criminal history appeals, CHRIA Section 9152 explicitly
provides:

               The Attorney General shall conduct a hearing de novo in
               accordance with the Administrative Agency Law. The
               burden of proof shall be upon the party bearing the burden
               of proof on the challenge.

18 Pa. C.S. § 9152(e)(2). As with most civil proceedings, litigants appearing before
administrative tribunals bear the burden of proving their case by a preponderance of
the evidence. Tepper v. City of Phila. Bd. of Pensions & Ret., 163 A.3d 475, 484
n.12 (Pa. Cmwlth. 2017). Therefore, criminal history appeals, as administrative
actions, require PSP to establish its case by a preponderance of the evidence. The
ALJ properly applied the preponderance of the evidence burden of proof to the
instant matter.8
               For these reasons, the February 23, 2018 order of the ALJ is affirmed.




                                             __________________________________
                                             CHRISTINE FIZZANO CANNON, Judge


Judge McCullough concurs in the result only.




       8
         To the extent Petitioner bases his burden of proof argument on his ability to possess
firearms, we note that he raises this argument for the first time in his appellate brief. As such,
Petitioner has waived this argument. See Pa.R.A.P. 1551.


                                                9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Craig Eugene Redding,                 :
                 Petitioner           :
                                      :
           v.                         :
                                      :
Pennsylvania State Police,            :   No. 258 C.D. 2018
                   Respondent         :


                                 ORDER


           AND NOW, this 11th day of January, 2019, the February 23, 2018
order of the administrative law judge of the Office of the Attorney General is
AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
