J-S12020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

JAELENE LAFAYE WEAVER

                        Appellant                 No. 1450 MDA 2016


              Appeal from the Order Entered August 5, 2016
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0002795-2008


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                           FILED MARCH 15, 2017

     Jaelene Lafaye Weaver appeals from the order of the trial court

entered on August 5, 2016, denying her petition for expungement.           On

appeal, Weaver claims the trial court erred by (1) denying the expungement

petition as to criminal charges that were “withdrawn,” without providing a

hearing, and (2) denying the expungement petition as to a criminal charge

that was “changed,” without providing a hearing. See Weaver’s Brief at 3.

Based upon the following, we affirm in part and vacate in part, and remand

for further proceedings consistent with this memorandum.

     This appeal has its genesis in an incident that occurred on March 26,

2008, when Pennsylvania State Police were dispatched to the scene of an

automobile accident involving Weaver. Weaver was initially charged with:

     Count 1 – 75 Pa.C.S. § 3802(a)(1) – Driving Under the Influence
     (DUI): General Impairment (Misdemeanor);
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       Count 2 – 75 Pa.C.S. § 3802(c) – DUI: Highest Rate of Alcohol
       (BAC .16+) (Misdemeanor);

       Count 3 – 75 Pa.C.S. § 3309(1) – Driving on Roadways Laned
       for Traffic (Summary);

       Count 4 – 75 Pa.C.S. § 3361 – Driving Vehicle at Safe Speed
       (Summary);

       Count 5 – 75 Pa.C.S. § 3745(a) – Accidents Involving Damage to
       Unattended Vehicle or Property (Summary);

       Count 6 – 75 Pa.C.S. § 3746(a)(2) – Failure to Notify Police of
       Accident/Damage to Vehicle (Summary); and

       Count 7 – 75 Pa.C.S. § 3714 – Careless Driving (Summary).

See Criminal Complaint, 4/14/2008. The Criminal Complaint further reflects

that the charges at Counts 4, 5, and 7, are crossed out by a diagonal line

with the initialed, undated notation “withdrawn.”1 Id.

       The Information, filed July 16, 2008, does not include the three

“withdrawn” summary charges, and reflects the DUI: Highest Rate of Alcohol

charge replaced with the charge graded as a misdemeanor of the first

degree, for a second offense.            Specifically, the Information reflects the

following charges:

       Count 1 – 75 Pa.C.S. § 3802(c) – DUI: Highest Amount of
       Alcohol (Misdemeanor 1)(Second Offense);

       Count 2 – 75 Pa.C.S. § 3802(a)(1) – DUI: General Impairment
       (Misdemeanor);
____________________________________________


1
  The initials appear to be the initials of the charging Pennsylvania State
trooper.



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       Count 3 – 75 Pa.C.S. § 3309(1) – Driving on Roadways Laned
       for Traffic (Summary); and

       Count 4 – 75 Pa.C.S. § 3746(a)(2) – Failure to Notify Police of
       Accident/Damage to Vehicle (Summary).

See Information, 7/16/2008.

       On December 1, 2008, pursuant to a negotiated plea agreement,

Weaver pleaded guilty to all charges set forth in the Information. The trial

court sentenced Weaver on Count 1 to five years’ County Intermediate

Punishment with additional DUI-related conditions and fines, Count 2

“merged” with Count 1, and no sentence was imposed on the two remaining

counts involving summary offenses.2

       On July 7, 2016, Weaver filed a Petition for Order Expunging Criminal

Charges. In her petition, Weaver sought expungement of the summary

charges that had been “withdrawn,” and the DUI: Highest Rate charge that

had been changed to DUI: Highest Rate charge — second offense. The trial

court denied Weaver’s petition by order entered August 5, 2016. This timely

appeal followed.3

       It is well settled that “[t]he decision to grant or deny a petition to

expunge rests with the sound discretion of the trial court, and we review
____________________________________________


2
  Weaver’s supervision was later modified by the trial court’s order to
unsupervised, so that Weaver could attend college out of state.
3
  Weaver timely complied with the trial court’s order to file a concise
statement of errors pursuant to Pa.R.A.P. 1925(b).




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that court's decision for abuse of discretion.” Commonwealth v. Moto, 23

A.3d 989, 993 (Pa. 2011).

       If the defendant is convicted of a crime, he is not permitted to

expunge his convictions except under the extremely limited circumstances

permitted by statute. Commonwealth v. Maxwell, 737 A.2d 1243, 1244

(Pa. Super. 1999), citing 18 Pa.C.S. § 9122.4 At the opposite extreme, our

courts recognize that a defendant is generally entitled to automatic

expunction     of    charges     for   which     he   or   she   is   acquitted.   See

Commonwealth v. Hanna, 964 A.2d 923 (Pa. Super. 2009).                       However,

cases pose more difficulty where a defendant is not convicted or acquitted

and another disposition has been entered. In such cases, courts must use a

balancing test:

       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 this Court has
       required the trial court to "balance the individual’s right to be
       free from the 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 (Pa. 1981); [Commonwealth v.] D.M., [548 Pa. 131,
       695 A.2d 770, 772 (1977)] (“We reiterate the authority of
       Wexler and the balancing test approved therein as the means of
       deciding petitions to expunge the records of all arrests which are
       terminated without convictions except in cases of acquittals.”).

____________________________________________


4
  18 Pa.C.S. § 9122(a) addresses mandatory expungement, and 18 Pa.C.S.
§ 9122(b) addresses discretionary expungement.



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     To aid courts in applying the balancing test for expungement, we
     also adopted in Wexler the following non-exhaustive list of
     factors that the court should consider:

         These factors include [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,
         and [5] the specific adverse consequences the petitioner
         may endure should expunction be denied.

     Wexler, supra at 879 (citation omitted).

     We have emphasized that in applying the balancing test and
     considering the above factors, the court must analyze the
     particular, specific facts of the case before it. Id. at 880-81.
     The mere assertion by the Commonwealth of a general interest
     in maintain accurate records of those accused of a crime does
     not outweigh an individual’s specific, substantial interest in
     clearing his or her record. Id. at 881-82.

Moto, supra, 23 A.3d at 993-994.

     Here, the trial court, in its Pa.R.A.P. 1925(a) opinion, explained that it

denied Weaver’s petition on the basis of Commonwealth v. Lutz, 788 A.2d

993 (Pa. Super. 2001). The trial court reasoned:

     [U]nlike charges for which the defendant has been acquitted or
     nolle prossed, charges withdrawn pursuant to plea agreements
     are not subject to the Wexler test, and require no such hearing.
     See Com[monwealth] v. Lutz, 788 A.2d 993, 1001.

     In Lutz, the defendant/appellant pushed the victim to the
     ground and stabbed the victim, causing “serious knife wounds to
     his stomach and liver.” Id. at 995. Appellant was charged with
     “one count of criminal attempt to commit homicide, two counts
     of aggravated assault, one count of simple assault, one count of
     recklessly endangering another person, and one count of
     possessing an instrument of crime.” Id. Appellant was “bound
     … for trial on all charges.” Id. Before the trial however,


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     Appellant chose to enter a guilty plea pursuant to a plea bargain
     negotiated with the Commonwealth; as the trial court reasoned,
     “the consideration received by the parties was that in return for
     Appellant’s guilty plea to the Aggravated [A]ssault charge, the
     Commonwealth would move to dismiss the remaining charges.”
     Id. at 1000.       In affirming the trial court’s holding that
     expungement would have been inappropriate, the Superior Court
     reasoned that “[i]n the absence of an agreement as to
     expungement, [an] [a]ppellant stands to receive more than he
     bargained for in the plea agreement if the dismissed charges are
     later expunged.”8
        _______________________________________________________


        8
           The Superior Court also noted that this was
        “particularly” the case “where Appellant [had] already
        been bound over for trial on all charges, the
        Commonwealth [was] fully prepared to proceed against
        Appellant on all charges at trial, and Appellant admit[ted]
        to facts that could essentially constitute culpability for the
        dismissed charges.” Com[monwealth] v. Lutz, 788
        A.2d 993, 1001 (Pa. Super. 2001).
        ______________________________________

     … [H]ere, as in Lutz, [Weaver] pled guilty pursuant to a plea
     agreement; as consideration for that agreement, certain charges
     were “withdrawn,” “merged,” or “negotiated with no further
     penalty.”    Further, here, as in Lutz, there was also no
     agreement that these charges would be expunged under the
     negotiated plea agreement. Moreover, as in Lutz, [Weaver]
     essentially admitted to the other offenses when she entered the
     plea, as the charges for which she admitted guilt met the same
     set of facts as the charges the Commonwealth agreed to
     “merge,” “negotiate” or “withdraw.”9 Finally, the “merged” and
        ________________________________________________________


        9
          The exception being the charge of DUI: Highest Rate of
        Alcohol, 1st Offense, which the docket notes was changed
        to reflect that it was [Weaver’s] 2nd offense.
        _______________________________________

     “negotiated” offenses in this case are even more essential to the
     agreement than the offenses in Lutz, as their dispositions
     implicate [Weaver] more than the “dismissed charges in that

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       case. It so follows that if the Court expunged the charges in this
       case, especially those that were “merged” or “negotiated,”
       [Weaver] would be getting even more than she “bargained for”
       than the [a]ppellant sought in Lutz. Accordingly, based on the
       quasi-contractual nature of the plea agreement, I believe I
       reasonably concluded that [Weaver] was not entitled to
       expungement in this case.

Trial Court Opinion, 10/14/2016, at 3–5 (footnote omitted). Based on our

review, we conclude the certified record is inadequate to resolve the issue

presented in this case regarding the “withdrawn” charges.

       In Lutz, “the Commonwealth agreed to dismiss, as part of a

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

plea to the remaining charge.”          Id. at 1001.   As noted by the trial court,

Lutz holds that denial of expungement of charges dismissed as part of a

negotiated guilty plea is appropriate, “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.” Id.

       Here, unlike Lutz, at the preliminary hearing,5 the charges against

Weaver for Driving Vehicle at Safe Speed, Accidents Involving Damage to

____________________________________________


5
  The Commonwealth acknowledges, “The summary offenses of Driving at
Safe Speed, Careless Driving and Accidents Involving [sic] were withdrawn
at the time of the preliminary hearing.”     Commonwealth’s Answer to
[Weaver’s] Motion for Order Dismissing Criminal Charges and to Expunge
Criminal Record, 8/2/2016, at 1 n.1.



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Unattended Vehicle or Property, and Careless Driving, were withdrawn, and

the charge for DUI: Highest Rate — first offense was replaced.                  The

Information, filed on July 16, 2008, did not include the aforementioned

charges. Weaver entered her guilty plea to the charges in the Information

almost five months later, on December 1, 2008, and there is no mention of

the withdrawn charges either in the guilty plea slip or in the written guilty

plea colloquy.      As such, also unlike Lutz, this case does not reflect an

explicit agreement indicating the withdrawn charges were part of the plea

agreement.6      Here, the docket ambivalently reflects that the charges for

Driving Vehicle at Safe Speed, Accidents Involving Damage to Unattended

Vehicles    or   Property,     and    Careless   Driving   were   “withdrawn”   on

“06/24/2008,” and “withdrawn” on “12/01/2008.”              However, the certified

____________________________________________


6
    In its brief, the Commonwealth maintains:

        The charges that were withdrawn at the preliminary hearing
        could have been reinstated by the Commonwealth at any time
        prior to [Weaver’s] plea.          Pa.R.Crim.P. 544.         The
        Commonwealth, however, did not reinstate those charges, but
        allowed them to remain withdrawn when it drafted the plea
        agreement to the remaining charges.            Additionally, the
        Commonwealth amended the DUI-Highest Rate count to reflect
        the proper offense number and grading.         Finally, the plea
        agreement entered into by the Commonwealth and [Weaver]
        contained no provision for the expungement of any charges at a
        later date. As such, to grant [Weaver’s] petition would provide
        [Weaver] “more than [she] bargained for in the plea agreement
        ….” Lutz.

Commonwealth’s Brief, at 6.



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record contains no transcripts of the guilty plea and sentencing hearings that

would definitively resolve this issue.

        Under these circumstances, we are guided by Commonwealth v.

Hanna, 964 A.2d 923 (Pa. Super. 2009). In Hanna, this Court addressed

the trial court’s denial of a petition for expungement where the trial court

had relied on Lutz to support its decision.     This Court found “the current

state of the record” was “inadequate” to resolve whether the charges at

issue were subject to the plea agreement. Id. at 928. The Hanna Court

held:

        Lutz is arguably inconsistent with broad language from this
        Court and our Supreme Court, as well as the prevailing trend of
        our case law. Nevertheless, we are not free to ignore Lutz
        outright, because it has not been overruled by this Court en banc
        or by our Supreme Court. We also recognize that in any given
        case, there may be debate over the factual question of whether
        the parties entered into the type of “quasi-contractual”
        agreement described in Lutz. As noted above, this is such a
        case. In keeping with the spirit of the case law discussed above,
        we now further hold that the Commonwealth bears the burden of
        proving on remand with clear and convincing evidence that Lutz
        applies. If the Commonwealth fails to carry that heavy burden,
        then the Wexler test will apply. We also urge the court to
        be mindful of the public policy considerations consistently
        articulated by our Supreme Court and this Court concerning the
        value of expungement to an individual. See [Commonwealth v.
        A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005).]. After the
        remand hearing, the court is free to issue a new order granting
        or denying expungement as to any or all of the charges in
        accordance with the principles set forth in this Opinion.

Id., 964 A.2d at 928-29.




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      Accordingly, applying Hanna to the instant case, we remand for an

evidentiary hearing on the withdrawn charges, and if the trial court

determines it is appropriate, a Wexler hearing.

      However, the DUI charge that was “changed” requires a different

analysis.   Weaver was originally charged with DUI: Highest Rate — first

offense.    This charge was then replaced with the charge for DUI: Highest

Rate — second offense, to which Weaver pleaded guilty.        Under these

circumstances, we conclude no hearing is warranted for the DUI: Highest

Rate — first offense charge that was amended to reflect the proper offense

number and grading.

      Order affirmed in part, and vacated in part.     Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2017




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