Opinion
J-A09018-14 No. 2589 EDA 2012
07-14-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. SHARON SUTTON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order August 16, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008428-2009
MC-51-CR-0027266-2009
BEFORE: BOWES, J., OTT, J., and JENKINS, J. MEMORANDUM BY OTT, J.:
Sharon Sutton appeals from the order entered August 16, 2012, in the Court of Common Pleas of Philadelphia County, granting in part and denying in part her petition for expungement. In this appeal, Sutton raises a number of issues wherein she claims the trial court improperly applied the Wexler test, and improperly denied the expungement of charges that had been nolle prossed. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm in part, reverse in part and remand for entry of expungement on four of the charges.
Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981).
Except where noted, we adopt the history and findings of fact as stated by the trial judge in her Pa.R.A.P. 1925(a) Opinion.
Appellant, Sharon Sutton, was involved in an altercation with the victim, Lacresha Gatewood, on March 1, 2009, and again on April 17, 2009. [Sutton] was arrested both times and charged with Possession of an Instrument of Crime, Terroristic Threats, Stalking, Simple Assault, Aggravated Assault, Recklessly Endangering Another Person, Harassment, Intimidation of a Witness and Violation of Protective order. A preliminary hearing was held on April 29, 2009, and the court found the Commonwealth had made a prima facie case for all but the Aggravated Assault charge.Trial Court Opinion, 6/12/2013, at 1-3 (citations to record omitted).
On January 6, 2012, [Sutton] pled nolo contendere to the Stalking charge and the remaining charges were nolle prossed in exchange, despite their having survived the preliminary hearings. [Sutton] was sentenced to a maximum of three years probation and a fine and is currently serving her probation, but has moved to expunge the nolle prossed charges because her record may make it harder for her to renew her nursing license.
On August 16, 2012, this court held a first Wexler hearing to rule on the expungement, but [Sutton] brought insufficient proof to show that her record would cause her undue prejudice. The hearing was stayed until September 13, 2012, at which point [Sutton] was to bring more evidence. The additional showing of prejudice at the September 13th Wexler hearing was deemed insufficient to expunge all but the Aggravated Assault charge.
[Sutton] filed her timely Notice of Appeal on September 14, 2012, and her 1925(b) Statement of Errors Complained of on Appeal was filed on October 12, 2012.
This Court found that the Commonwealth, at the Wexler hearing for Ms. Sutton's expungement, met its burden and showed that the record in question must be maintained for all but the Aggravated Assault charge. Based upon the record kept in this matter, this Court made the following findings of fact at its August 16, 2012, and September 13, 2012, Wexler hearings:
Ms. Sutton entered into a plea agreement with the Commonwealth, the terms of which were that the Commonwealth would nolle prosse all but the Stalking charge, to which Ms. Sutton would plead nolo contendere. This agreement was chosen in part to help Ms. Sutton because her job as a nurse requires that she renew her nursing license every four years, and convictions for some of the charges with which she was charged would preclude renewal. Ms. Sutton was not told that these arrests and charges would be completely removed from her record, however, just that she would not be convicted. Ms. Sutton attempted to show that she would suffer undue prejudice should the nolle prossed charges remain on her record, but this Court found that only the Aggravated Assault, a charge disposed of at the first preliminary hearing for the Commonwealth's failure to make a prima facie case, should be expunged.
Sutton was also charged with Retaliation Against a Witness, 18 Pa.C.S. 4953(a). See Affidavit of Probable Cause, May 23, 2009. Citations for the other crimes are: 18 Pa.C.S. §§ 907(a), 2706(a)(1), 2709.1(a)(1), 2701(a), 2702, 2705, 2709(a)(1), 4952(a)(1)-(3), and 4955, respectively.
This is partially true. Four of the charges - Recklessly Endangering Another Person, Harassment, Retaliation, and Violation of Protective order were dismissed at lower court for lack of evidence. See Trial Disposition and Dismissal Form, 1/06/2012; Motion for Expungement, 6/29/2012. The Trial Disposition and Dismissal Form indicates the four charges were disposed of on July 9, 2009.
Further, the trial court opined:
Where a charge is nolle prossed for lack of evidence, however, expungement is all but guaranteed. [Commonwealth v.] Rodland, 871 A.2d [216] at 221 [(Pa.Super. 2005)]. Though dismissals for lack of evidence do not see the defendant's lack of guilt proclaimed in a court of law, the reasoning from [Commonwealth v.] D.M. [,695 A.2d 770 (Pa. 1997)] for expunging acquittals has been deemed applicable to the dismissal as well. Id. The problem stems from applying the first Wexler factor, the strength of the Commonwealth's case; where a trial court has dismissed a case for lack of evidence, it reasons that the Commonwealth had no case against the defendant. Id. While the exception regarding impracticality orId. at 8.
impossibility of expunging acquittals applies to these dismissals as well, the court in Rodland emphasized that "[r]arely, if ever, will charges dismissed for lack of evidence fail to qualify for expungement under Wexler." Id.
Ms. Sutton has stated in her 1925(b) Statement of Matters Complained of on Appeal that four of her charges were nolle prossed due to lack of evidence, and had this issue been raised at her Wexler hearing these four charges would have been expunged. Unfortunately for her, however, the 1925(b) Statement is the first time this court has heard this argument. Ms. Sutton's claim, that these four charges ought to be expunged due to their being dismissed for lack of evidence, is waived because she failed to raise this claim with the lower court. Pursuant to Pennsylvania Rule of Appellate Procedure 302(a), an issue not raised in the lower court is waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). The record below is devoid of any evidence that Ms. Sutton or her attorney made this court aware of the reason that these four charges were nolle prossed, and the most generous reading of the transcript leads one to believe that all non-Stalking charges were dismissed purely as part of the plea agreement.
With the facts and history recited, we note that our standard of review for appeals from expungement determinations is well settled.
Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa.Super. 2005).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. Rodland, 871 A.2d 216, 218 (Pa. Super. 2005) (citing Commonwealth v. Lutz, 788 A.2d 993, 996 (Pa. Super. 2001)
Relevant to this appeal, expungement of nonconviction data is allowed pursuant to statute. See 18 Pa.C.S. § 9122(a)(2). The application of this section is generally described in Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981) and was modified, relevant to this appeal, by Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001).
Both of these cases will be discussed, infra.
Here, Sutton argues the trial court misapplied both the Wexler test and the holding in Commonwealth v. Lutz, supra. Specifically, she argues, "Lutz is inapplicable given that the Commonwealth did not present clear and convincing evidence that a plea agreement took place whereby the appellant pled guilty to one charge in exchange for the dismissal of other charges." Further, she claims Lutz only applies in situations featuring "a guilty plea and withdrawn charges." See Sutton's Brief at 12. She also argues, "Second, the trial court did not require the Commonwealth to present evidence to justify retention of the non-conviction charges, as required by Wexler, nor did the Commonwealth present any evidence to justify the retention of charges." Id. at 13.
The Wexler test is described in Commonwealth v. Wallace, 45 A.3d 446 (Pa. Super 2012):
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, , 431 A.2d
877, 879 (Pa. 1981); [Commonwealth v.] D.M., at 772 ("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.").
To aid courts in applying the balancing test for expungement, we also adopted in Wexler the following nonexhaustive 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). Commonwealth v. Wallace, 45 A.3d at 450-51.
However, Commonwealth v. Lutz, supra, provided an exception to Wexler, determining that where the charges were disposed of through plea agreement, no balancing hearing was necessary. Specifically, a panel of our Court stated:
We appreciate the court's reasoning regarding the contractual nature of the plea agreement and the need to have accessible all data relevant to that agreement. See [ Commonwealth v. ] Kroh [654 A.2d 1168 (Pa. Super. 1995)], supra. We also acknowledge the essential differences between plea agreements and acquittals or Nolle Prosequi situations. We admit further that the dismissal of some charges in exchange for a guilty plea to related charges represents a common scenario yet poses a thorny state of affairs when the defendant later seeks to expunge the dismissed charges. 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 theCommonwealth v. Lutz, 788 A.2d at 1001.
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.
Contrary to Sutton's claim that the Commonwealth failed to prove the existence of a plea bargain necessary for Lutz to apply, our review of the certified record demonstrates that the three counts of intimidation of a witness, and one count each of possession of an instrument of a crime, simple assault, and terroristic threats were nolle prossed as a part of the agreement for Sutton to enter into a nolo plea to the charge of stalking. In fact, the written colloquy form, signed by Sutton, indicates that all remaining charges are to be dropped as part of the agreement.
We note, as well, that Sutton's testimony at the September 13, 2012 hearing implies that expungement was not part of the agreed upon bargain.
Q: But there was no agreement for expungement at that time [Entry of the plea agreement]?N.T. Hearing, 9/12/2012 at 11.
A: At that time I didn't know it would still be on my record. I thought the crimes you don't get charged for are automatically erased.
Further, we disagree with Sutton's claim that Lutz applies only to situations in which the charges were dismissed, and not when the charges are nolle prossed, as happened instantly. The cases cited by Sutton to support this argument were each based upon a fact pattern in which the Commonwealth could not demonstrate the terms of the plea agreement. Because the written colloquy, demonstrating the dismissal of the charges was a specific term of the agreement, is contained in the certified record, those cases are inapplicable. Accordingly, we find no abuse of discretion in the trial court's denial of expungement for those crimes, listed above, that were nolle prossed as part of the plea agreement.
See Commonwealth v. Hanna, 964 A.2d 923 (Pa. Super. 2009), Commonwealth v. Rodland, 871 A.2d 216 (Pa. Super. 2005).
Although it is clear that some of the cases were disposed of as part of the plea process, it is equally clear that four of the charges were not. Initially, we believe the trial court committed an error of law in determining that Sutton did not raise the issue that some of the charges had been dismissed for lack of evidence until she filed her Pa.R.A.P. 1925(b) statement. The certified record demonstrates that in her motion for expungement, she lists four charges, harassment, REAP, retaliation, and violation of a protective order, that were all dismissed for lack of evidence. The motion also lists the dismissal of those charges for lack of evidence as a reason for seeking expungement. Therefore, the issue of dismissal for lack of evidence was properly raised before the trial court prior to the filing of the instant appeal.
We agree with Sutton's argument regarding the application of Wexler and Lutz as applied to these four charges. Under other circumstances, we would remand this matter for reconsideration under Wexler. However, as noted above, the trial court stated in its Pa.R.A.P. 1925(a) opinion, "had the issue been raised at her Wexler hearing these four charges would have been expunged." See Trial Court Opinion, 6/12/13, at 8. The trial court recognized the propriety of Sutton's claim, and only denied it for procedural reasons. We note that Commonwealth's brief only addresses those charges that were dismissed as part of the plea agreement and is silent regarding the four charges dismissed prior to the plea agreement.
Because Lutz does not apply to these charges, Sutton would be entitled to the application of the Wexler balancing test.
--------
In light of the trial court's acknowledgment that, on the merits, it would have expunged those charges that were not part of the plea agreement, and the Commonwealth's silence on the issue, there is no need to remand for a hearing.
Accordingly, we affirm that portion of the order expunging the aggravated assault charge as well as that portion of the order denying expungement on three counts of intimidation of a witness, and one count each of possession of an instrument of a crime, simple assault, and terroristic threats, the charges associated with the guilty plea agreement. We reverse the order denying expungement of harassment, recklessly endangering another person, retaliation against a witness or victim, and violation of a protective order, the charges that were dismissed for lack of evidence.
Order affirmed in part, reversed in part. Matter remanded for entry of an order consistent with this decision. Order to be entered within 15 days of the return of the certified record. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary