J-S73035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JUSTIN MICHAEL MYERS                     :
                                          :
                    Appellant             :   No. 770 WDA 2018

                    Appeal from the Order April 24, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0001459-2000


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 12, 2019

      Appellant, Justin Michael Myers, appeals from the order entered on April

24, 2018 in the Criminal Division of the Court of Common Pleas of Erie County

that denied his petition to expunge arrest records pertaining to a charge of

carrying a firearm without a license, 18 Pa.C.S.A. § 6106(a). We affirm.

      The trial court summarized the historical facts and procedural history in

this case as follows:

      In April of 2000, Appellant incurred two charges: count 1, theft
      by unlawful taking movable [property] and count 2, firearms not
      to be carried without a license, graded as a third-degree felony.
      The alleged facts were that Appellant stole a North American
      Armsa .22 Magnum Revolver Derringer from his parents’ home.

      On August 23, 2000, Appellant entered a guilty plea to theft by
      unlawful taking. He was sentenced to [a] period of two years of
      probation. [At] count 2, firearms not to be carried without a
      license, [Appellant’s charges were] nolle prossed the same date.
      On August 12, 2002, Appellant was revoked from probation and
      sentenced to 90 days to one year of incarceration followed by one
      year of probation.
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      On January 17, 2018, Appellant filed a form petition to expunge
      his arrest record. The Commonwealth objected. Th[e trial c]ourt
      denied Appellant’s request.      Appellant filed a motion for
      reconsideration [and r]equest for hearing on February 12, 2018.

      A Wexler hearing was held April 23, 2018. See Commonwealth
      v. Wexler, 431 A.2d 877 (Pa. 1981). After an evidentiary
      hearing, an order was entered April 24, 2018, denying
      expungement of Appellant’s arrest record at count 2, firearms not
      be carried without a license.

      Appellant filed a timely notice of appeal on May 22, 2018 and a
      concise statement of matters complained of on appeal on June 6,
      2018. Appellant claims it was error or abuse of discretion for
      failure to apply the Wexler standards and its progeny such that
      the firearms arrest record should be expunged.

Trial Court Opinion, 7/6/18, at 1-2 (superfluous capitalization omitted).

      On appeal, Appellant raises the following claim for our review:

      Whether the trial court committed an abuse of discretion when it
      failed to correctly balance the competing interests of the Appellant
      and Commonwealth in determining whether the nolle prossed
      charge should be expunged.

Appellant’s Brief at 4.

      This Court previously explained the principles that govern expungement

of criminal history records in Commonwealth v. V.G., 9 A.3d 222 (Pa. Super.

2010).

      “The decision to grant or deny a request for expungement of an
      arrest record lies in the sound discretion of the trial judge, who
      must balance the competing interests of the petitioner and the
      Commonwealth. We review the decision of the trial court for an
      abuse of discretion.” Commonwealth v. Waughtel, 999 A.2d
      623, 624-625 (Pa. Super. 2010), quoting Commonwealth v.
      Hanna, 964 A.2d 923, 925 (Pa. Super. 2009). In Waughtel, we
      provided a comprehensive outline of the law applicable to
      expungement. Defendants in Pennsylvania have a due process
      right to petition for expungement that is not dependent upon

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     statutory authority.   [Waughtel, 999 A.2d] at 625; see
     Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981).
     Where a defendant is convicted of a crime, he is not entitled to
     expungement of that crime, except as outlined by 18 Pa.C.S.A.
     § 9122, which is an extensive statutory provision governing
     expungement. Waughtel, supra; Commonwealth v. Maxwell,
     737 A.2d 1243, 1244 (Pa. Super. 1999). “At the opposite
     extreme, if the defendant is acquitted, he is generally entitled to
     automatic expungement of the charges for which he was
     acquitted.” Waughtel, supra at 625, citing Commonwealth v.
     D.M., 695 A.2d 770 (Pa. 1997).

     In the Wexler case, our Supreme Court confronted the question
     of whether a defendant was entitled to have his arrest record
     expunged when the charges were nol prossed because the
     Commonwealth came to the conclusion that it had insufficient
     evidence to prosecute the defendant.         Our Supreme Court
     answered in the affirmative. It first observed:

       The serious harm an individual may suffer as a result of the
       Commonwealth's retention of an arrest record has been set
       forth in Commonwealth v. Malone, 366 A.2d 584, 587-88
       (Pa. Super. 1976). Because of this potential hardship, the
       Court in Malone recognized that in certain circumstances
       substantive due process guarantees an individual the right to
       have his or her arrest record expunged. In determining
       whether justice requires expungement, the Court, in each
       particular case, must 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. The Superior Court, in Commonwealth v. Iacino,
       411 A.2d 754 (Pa. Super. 1979) (Spaeth, J., concurring)
       listed several factors that should be considered in
       determining the respective strengths of the Commonwealth's
       and petitioner's interest in this type of case, and we cite them
       here with approval:

         “These (factors) include the strength of the
         Commonwealth's case against the petitioner, the
         reasons the Commonwealth gives for wishing to retain
         the records, the petitioner's age, criminal record, and
         employment history, the length of time that has elapsed
         between the arrest and the petition to expunge, and the


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          specific adverse consequences the        petitioner may
          endure should expunction be denied.”

        Id. at 759. We note that this is not necessarily an exclusive
        or exhaustive list; other factors may require examination in
        a particular case.

        Wexler, 431 A.2d at 879.

      In Wexler, the trial court refused to expunge the arrest records
      of two defendants who were married because the arrests were
      lawful and the defendants had been bound over for trial after a
      preliminary hearing. After those events, the charges against the
      Wexlers were nol prossed based upon the district attorney's
      conclusion that the defendants' actions did not support convictions
      for the charges pending before them.          Additionally, at the
      expungement hearing, the Commonwealth admitted that it
      dropped the cases against the defendants because it could not
      prove they were guilty beyond a reasonable doubt. Our Supreme
      Court stated, “We believe this fact places a heavy burden upon
      the Commonwealth to present compelling evidence justifying the
      retention of Mr. and Mrs. Wexler's arrest records.” Id. at 880.

      Our Supreme Court reversed the trial court's refusal to expunge,
      concluding that a decision to nol pros charges due to a lack of
      evidence was not materially different from an acquittal. It ruled
      that “if the Commonwealth does not bear its burden of proof
      beyond a reasonable doubt [as in an acquittal], or admits that it
      is unable to bear its burden of proof (as in the present case), the
      Commonwealth must bear the burden of justifying why the arrest
      record should not be expunged.” Id. It continued that the
      Commonwealth therein had offered no specified, valid reason for
      retaining the Wexlers' arrest records and granted them
      expungement. []

      The Wexler court further held that where a defendant has been
      admitted to ARD with respect to criminal charges and has
      successfully completed the ARD program, expungement should be
      granted unless the Commonwealth produces specific, compelling
      reasons for retaining the arrest record. Wexler, 431 A.2d at 880.

V.G., 9 A.3d at 223-225 (parallel citations omitted).




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      This Court has acknowledged problems that arise in expunction cases

when the facts fall between a conviction, which prevents expungement, and

circumstances mandating automatic expungement, such as an acquittal or a

nol pros based upon an inability to obtain a conviction or successful completion

of ARD. See V.G., 9 A.3d at 225. We have discussed these phenomena in

the context of plea agreements.

      When the defendant pleads guilty and the Commonwealth agrees
      to dismiss charges as part of the plea agreement, a defendant is
      normally not entitled to expungement of the dropped charges
      under the Wexler factors. Commonwealth v. Lutz, 788 A.2d
      993 (Pa. Super. 2001). In such a scenario, the Commonwealth
      dismisses charges in connection with a plea arrangement and,
      accordingly, there is no implicit or express admission that it lacks
      evidence to convict a defendant of the crimes. The action of
      dropping the charges is viewed as a contractual arrangement
      negotiated as part of the plea bargain. Id. This situation is
      contrasted with that involved in the nol pros setting, where the
      Commonwealth concedes that there is insufficient evidence to
      support the dismissed charges. Id. Thus, if expungement were
      permitted as to charges withdrawn pursuant to a plea bargain
      rather than due to a lack of evidence, there would not be an
      accurate record of the agreement reached by the defendant and
      the Commonwealth. Id. Furthermore, “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.”            Id. at 1001; but see
      Commonwealth v. A.M.R., 887 A.2d 1266 (Pa. Super. 2005)
      (where charges of theft and misapplication of entrusted property
      were dropped after defendant agreed to resign from his job,
      defendant's arrest record was ordered to be expunged); Matter
      of Pflaum, 451 A.2d 1038 (Pa. Super. 1982) (before the district
      justice, Commonwealth dropped charges of burglary, trespass,
      and theft and defendant pleaded guilty to disorderly conduct;
      defendant was entitled to have record of withdrawn charges
      expunged). In applying Lutz and Wexler in the plea agreement
      setting, we have had occasion to remand to the trial court to make
      a clear record as to whether charges were nol prossed based upon


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      lack of evidentiary support or whether the charges were dropped
      in exchange for the plea. See Commonwealth v. Hanna, 964
      A.2d 923 (Pa. Super. 2009).

V.G., 9 A.3d at 225-226.

      In this case, Appellant argues that his firearms charge was nol prossed

and that expungement should be awarded under the Wexler factors. The

Commonwealth, however, argues that the firearms charge was dropped as

part of a plea agreement and not because of a lack of evidence. Thus, the

Commonwealth maintains that Wexler does not apply and expungement is

not available to Appellant.

      The difficulty in Appellant's position is that he has conceded that the

factual component of the Commonwealth’s case was strong.             See N.T.

Hearing, 4/23/18, at 6 (counsel acknowledging that “Appellant took the gun

while he was leaving home, turn[ed] the corner and there’s the police … [h]e

had the firearm on him”). It is thus uncontested that Appellant is not seeking

expungement of a charge that was nol prossed due to lack of evidence or for

which he was acquitted. Instead, the Commonwealth dropped the firearms

charge against Appellant as part of the plea bargaining process and the parties

made no agreement as to expungement.             Under these circumstances,

Appellant is not entitled to expungement. See Lutz, 788 A.2d at 999-1000

(explaining that Commonwealth's decision to drop charges pursuant to a plea

agreement carries no implicit admission that proof is lacking);      see also

Hanna, 964 A.2d at 926-927.


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      Appellant no doubt presents a compelling case for expungement,

particularly if the Wexler factors were to be applied.          At the time of the

underlying offenses, Appellant was in his early twenties and had certain issues

with anger. He decided to leave his parents’ home, took a gun during his

departure, but encountered police almost immediately.               Ultimately, the

Commonwealth          dropped   the   firearms   charge   and   Appellant   received

probation. Appellant served a brief period in jail after a revocation in 2002

but thereafter completed his time and paid all outstanding costs and fines. In

the nearly two decades since the underlying incidents, Appellant has acquired

a family of his own, reunited with his parents, and avoided contacts with law

enforcement. He petitioned to expunge the records relating to his firearms

offense in order to avoid further adverse employment consequences.

Appellant also points out that since he is not seeking expungement of the theft

charges, references to his involvement with a firearm will remain in his file

and, therefore, law enforcement has a reduced need to retain the challenged

arrest record.    Appellant obviously makes a forceful argument that he is

entitled to relief.

      Nevertheless, as the Commonwealth points out and as the record makes

clear, Appellant is not seeking expungement of charges that were nol prossed

because of a lack of evidence. Instead, he seeks expungement of charges

that were abandoned as part of plea negotiations. Under these circumstances,

we are constrained to agree with the Commonwealth that Wexler does not


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apply and that expungement is inappropriate. Thus, the trial court did not

abuse its discretion in denying Appellant’s petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2019




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