J-S51002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMES ANTHONY ALBIN                      :
                                          :
                    Appellant             :   No. 419 MDA 2019

              Appeal from the Order Entered February 6, 2019
               In the Court of Common Pleas of Adams County
            Criminal Division at No(s): CP-01-CR-0000325-2018


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                   FILED NOVEMBER 07, 2019

      James Anthony Albin appeals from the order denying his petition for

partial expungement following a negotiated guilty plea. We affirm.

      We derive the facts and procedural history of the case from the trial

court opinion and our independent review of the certified record. See Trial

Court Opinion, 4/16/19; see also Pa.R.A.P. 1925(a).

      Albin was charged by criminal information with four counts: count 1,

possession with intent to deliver marijuana under 35 P.S. § 780-113(a)(30);

count 2, criminal conspiracy to possess with intent to deliver marijuana, under

18 Pa.C.S.A. § 903(a)(1), both felonies; count 3, simple possession of

marijuana under 35 P.S. § 780-113(a)(16); and count 4, possession of drug

paraphernalia under 35 P.S. § 780-113(a)(32), both misdemeanors, in
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violation of the Controlled Substance, Drug, Device, and Cosmetic Act, 35 P.S.

§§ 780-101 to 780-144, and the Crimes Code.

     On October 3, 2018, shortly before Albin’s jury trial was set to begin, he

entered a written, counseled, negotiated guilty plea to the two misdemeanors,

simple possession of marijuana and possession of drug paraphernalia. See

Guilty Plea, 10/3/18; see also Plea Agreement, 10/3/18. The written guilty

plea included the handwritten notation that the plea was “Guilty to Counts 3

and 4 only.” Guilty Plea, 10/3/18.

     Also on October 3, 2018, pursuant to the negotiated plea agreement,

the trial court sentenced Appellant on each count to twelve months’ probation

with the sentence on count 3 running consecutive to the DUI sentence Albin

was then serving in York County and count 4 running consecutive to count 3.

     On November 15, 2018, Albin filed a petition for the expungement of

counts 1 and 2, pursuant to Pennsylvania Rule of Criminal Procedure 790.

     By order of February 6, 2019, the trial court denied the petition without

a hearing. Albin filed a timely notice of appeal on March 7, 2019. On April 9,

2019, he filed a concise statement of errors complained of on appeal.




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       The Commonwealth objected in writing to any relief for Appellant. It

concluded his appeal was meritless. However, the Commonwealth declined to

file a responsive brief, relying on the trial court’s Rule 1925(a) opinion.1

       Albin presents one question for our review on appeal:

             I. Did the trial court err when it denied [Appellant’s] Petition
       for Expungement?

Appellant’s Brief, at 4.2

       Albin maintains the trial court erred because it had no legitimate,

compelling reason to deny the petition for expungement. Id. at 6.               We

disagree.

       Our standard of review is well-settled.

       [The Pennsylvania Supreme] Court has consistently found that the
       right in this Commonwealth to petition for expungement of
       criminal records is an adjunct of due process. The decision to grant
       or deny a petition for expungement lies in the sound discretion of
       the trial court, who must balance “the individual’s right to be free
       from harm attendant to maintenance of the arrest record against
       the Commonwealth’s interest in preserving such records.”
       [Commonwealth v.] Wexler, [494 Pa. 325, 431 A.2d 877, 879
       (1981)].


____________________________________________


1  See Commonwealth’s letter to Jennifer Traxler,                Esquire,   Deputy
Prothonotary of Superior Court, dated August 5, 2019.

2 We note that even though Albin correctly cites our standard of review as
abuse of discretion, he frames his issue as an error of law. We also note that
Albin’s brief omits a table of contents or a table of citations. Therefore, it fails
to comply with Pennsylvania Rule of Appellate Procedure 2174. Furthermore,
Albin’s brief includes an Appendix A, and an Appendix B, but both are totally
blank. As these deficiencies do not impact our ability to address this appeal,
we decline to impose any sanctions.


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          Judicial evaluation of a petition to expunge depends on the
     manner of disposition of the charges an individual wishes to
     expunge.

           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. When a petitioner has been tried and acquitted of the
     offenses charged, [the Pennsylvania Supreme Court has] held that
     the petitioner is automatically entitled to the expungement of his
     arrest record. When a prosecution has been terminated without
     conviction or acquittal, for reasons such as nolle prosse of the
     charges or the defendant’s successful completion of an
     accelerated rehabilitative disposition program (“ARD”), then, [the
     Pennsylvania Supreme Court] has required the trial court to
     balance the individual’s right to be free from the harm attendant
     to the maintenance of the arrest record against the
     Commonwealth’s interest in preserving such records.

                                 *    *    *

           In Wexler, [the Pennsylvania Supreme Court] set in place
     the following five factors that the trial court must balance when
     considering a petition for expungement:

            (1) The strength of the Commonwealth’s case against the
     petitioner; (2) the reasons the Commonwealth gives for wishing
     to retain the records; (3) the petitioner’s age, criminal record, and
     employment history; (4) the length of time that has elapsed
     between the arrest and the petition to expunge; (5) and the
     specific adverse consequences the petitioner may endure should
     expunction be denied.

     Wexler, supra at 879.

     …

            [T]here is a presumption that when a court has a set of facts
     in its possession, it will apply those facts. Moreover, where the
     trial court has the record in its possession, we do not require the
     court to prove that it reviewed the entire record by citing to each
     and every circumstance it considered in its findings. The trial
     court, instead, must explain the rationale of its decision in a


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       sufficiently legal and factual manner to support its decision under
       Wexler.

Commonwealth v. Wallace, 97 A.3d 310, 317–19 (Pa. 2014) (emphasis

added) (some citations omitted).           Accord, Commonwealth v. Lutz, 788

A.2d 993, 996 (Pa. Super. 2001) (“We review the decision of the trial court

for an abuse of discretion.”) (citation omitted).

       A trial court abuses its discretion if in reaching a conclusion, the law is

overridden     or   misapplied,     or   the   exercised   judgment   is   manifestly

unreasonable or is the result of partiality, prejudice, bias, or ill will. See, e.g.,

Commonwealth v. Hann, 81 A.3d 57, 65 (Pa. 2013). To the extent

Appellant’s arguments raise questions of law, our appellate standard of review

is de novo, and the scope of our review is plenary. See Commonwealth v.

Sanford, 863 A.2d 428, 431 (Pa. 2004).

       In general, the Criminal History Record Information Act, 18 Pa.C.S.A.

§§ 9101–9183, specifically section 9122, governs the expungement of

criminal records. There is no dispute, and Appellant does not argue, that he

meets any of the statutory criteria for discretionary expungement following a

conviction.3


____________________________________________


3 See, generally, § 9122(b)(1)-(3): [(1) subject reaches seventy years of
age and has been free of arrest or prosecution for ten years; (2) subject has
been dead for three years; (3) summary offense and subject has been free of
arrest or prosecution for five years)].




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       Nor does Albin argue that the charges were withdrawn because the

Commonwealth could not meet its burden of proof.4 To the contrary, the

Commonwealth was prepared to go to trial that morning. Albin was not

acquitted of any of the charges at issue.

       Nevertheless, Albin maintains in this appeal that “expungement must

be granted.” Appellant’s Brief, at 11. He argues that because his felony

charges did not result in conviction, the Commonwealth had−but failed to

meet−the burden to prove by compelling evidence that it had reasons to

maintain “non-conviction data” which outweighed the prejudice to him. Id.

We disagree.

       Albin does concede,

       [O]ne very narrow exception is in the case where a petitioner pled
       guilty to a charge in exchange for the dismissal of the other
       charges against him. An expungement may be denied only when
       the Commonwealth proves by clear and convincing evidence (such
       as by presenting evidence from the plea colloquy) that the charges
       were dismissed in exchange for the plea.

Id. at 9.

       Albin further concedes that he entered into a negotiated guilty plea. See

id. He even concedes that “[a]s a result of this guilty plea, one (1) count of

Possession with Intent to Deliver and one (1) count of Criminal Conspiracy


____________________________________________


4 We note that the Commonwealth had identified an expert witness,
Pennsylvania State Police Trooper James O’Shea, to render an opinion on
whether possession was with intent to deliver. See Notice, April 23, 2018.



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were withdrawn by the Commonwealth and dismissed by the trial court.” Id.

(emphasis added).5

       Nevertheless, he concludes, “[t]here is nothing on the record that the

Defendant pled guilty in order to obtain dismissal of those charges, therefore

the exception to the expungement does not apply.” Id.

       Albin fails to develop a persuasive argument, supported by pertinent

authority or reference to the record, sufficient to overcome the reasonable

inference that in the absence of any express exception (e.g., acquittal,

completion of ARD, Commonwealth’s conceded inability to proceed to trial)

the withdrawal of the felony charges was an integral part of his negotiated

plea to the lesser charges.

       On   independent       review,    we    conclude   that   in   the   totality   of

circumstances, the facts of the negotiated plea in this appeal are most closely

aligned with the analysis of this Court in Lutz, 788 A.2d at 1001.

       The panel in Lutz held that the trial court properly denied Lutz’s motion

for expungement, where the Commonwealth agreed to dismiss, as part of a




____________________________________________


5 The trial court maintains that “it does not appear that the Commonwealth
ever moved to [withdraw] Counts 1 and 2 of the Criminal Complaint,” the
charges Albin now seeks to have expunged. Trial Court Opinion, at 2. The
record does not contain a motion from the Commonwealth to withdraw, or an
order granting withdrawal. However, the docket does contain dispositions that
confirm both charges were withdrawn. See Adams County Criminal Docket,
CP-01-CR-0000325-2018, page 3 of 13.


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negotiated plea bargain, certain charges in exchange for Lutz’s guilty plea to

the remaining charge.

     The Lutz Court agreed with the trial court that:

     [T]he dismissal of charges pursuant to a plea agreement is clearly
     not a finding of the same order as an acquittal or Nolle Prosequi.
     It is [the trial court’s] experience that plea agreements are most
     often entered into for prosecutorial or judicial economy, or due to
     the request of the victims. In short, dismissal of charges due to a
     plea agreement should not [have the same implications] as
     acquittals or Nolle Prosequi situations.

Lutz, 788 A.2d at 1001.

     The Lutz Court also accepted the analysis of the trial court that plea

agreements are contractual (or quasi-contractual) in nature.         From that

premise, the Court reasoned that:

     In the absence of an agreement as to expungement, Appellant
     stands to receive more than he bargained for in the plea
     agreement if the dismissed charges are later expunged. Thus, we
     agree with the trial court that the better resolution is to deny
     expungement of the charges dismissed as part of Appellant’s plea
     agreement, particularly where Appellant has already been bound
     over for trial on all charges, the Commonwealth is fully prepared
     to proceed against Appellant on all charges at trial, and Appellant
     admits to facts that could essentially constitute culpability for the
     dismissed charges.

Lutz, 788 A.2d at 1001.

     Additionally, as aptly noted by the trial court, violations of The

Controlled Substance, Drug, Device and Cosmetic Act, such as Albin was

charged with in this case, are expressly excluded from the provisions of

Pennsylvania Rule of Criminal Procedure 790, Procedure for Obtaining

Expungement in Court Cases; Expungement Order. See Pa.R.Crim.P.

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790(A)(1). The trial court properly denied Albin’s petition for expungement.

Accordingly, we affirm the court’s order denying Appellant the relief he

requested.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/07/2019




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