Com. v. Lutz
| Decision Date | 21 November 2001 |
| Citation | 788 A.2d 993 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Chad LUTZ, Appellant. |
| Court | Pennsylvania Superior Court |
Chad Lutz, appellant, pro se.
Jason C. Glessner, Assistant District Attorney, Reading, for Com., appellee.
BEFORE: MUSMANNO, TODD, and KELLY, JJ.
¶ 1 Appellant, Chad Lutz, asks us to examine whether he is entitled to expungement of charges included in his criminal information, which the Commonwealth agreed to dismiss as part of a negotiated plea bargain in exchange for his guilty plea to one count of aggravated assault. We hold that under the circumstances of this case, Appellant is not entitled to expungement of the dismissed charges. Accordingly, we affirm the trial court's decision to deny Appellant the relief he requested.
¶ 2 The relevant facts and procedural history of this case are as follows. On March 28, 1998, the victim approached Appellant and twice pushed him to the ground. In an effort to get up and repel the victim, Appellant used a knife in his possession against the victim. The victim sustained serious knife wounds to his stomach and liver. The victim underwent surgery; his recovery was uneventful, with no lasting effects from the injury. As a result of this incident, Appellant was charged with one count of criminal attempt to commit homicide,1 two counts of aggravated assault,2 one count of simple assault,3 one count of recklessly endangering another person,4 and one count of possessing an instrument of crime.5 Following a preliminary hearing, the court bound Appellant for trial on all charges.
¶ 3 Trial was scheduled to begin on April 13, 1999. Prior to trial, Appellant informed the court that he intended to enter a guilty plea pursuant to a plea bargain negotiated with the Commonwealth. In exchange for Appellant's guilty plea to one of aggravated assault at 18 Pa.C.S.A. § 2702(a)(4), the Commonwealth agreed to dismiss the remaining charges. The negotiated sentence was for two to five years' imprisonment. At the guilty plea colloquy, the court made all of the necessary inquiries. The court accepted Appellant's plea but deferred sentencing until receipt of the pre-sentence report. The remaining counts on the information were then dismissed pursuant to the plea agreement. On May 24, 1999, the court sentenced Appellant to the negotiated two to five years' imprisonment, noting Appellant's zero prior record score. The court also made Appellant eligible for boot camp. Appellant did not file a direct appeal.
¶ 4 On December 15, 1999, Appellant filed his first petition, pro se, under the Post Conviction Relief Act.6 Appellant's trial counsel was permitted to withdraw, and the court appointed conflict counsel. New counsel subsequently filed a petition for leave to withdraw pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988), which the court granted. On February 29, 2000, the court notified Appellant of its intention to dismiss the PCRA petition without a hearing. On March 28, 2000. Appellant's PCRA petition was dismissed. Appellant did not appeal this decision.
¶ 5 Appellant next filed a pro se motion for expungement7 on August 24, 2000. The stated reason for his request to expunge the records relating to his arrest was the "dismissal of the related charges" as a consequence of his guilty plea. The trial court found that Appellant had not made a cognizable claim for expungement of the related charges, and ruled that Appellant was therefore ineligible for the relief requested. Accordingly, the court denied Appellant's motion without a hearing on August 29, 2000. This pro se appeal followed.
¶ 6 Appellant raises one issue for our review:
IS APPELLANT ENTITLED TO A DUE PROCESS HEARING FOR THE EXPUNGEMENT OF DISMISSED CHARGES 2501(a), 2702(a)(1), 2701(a)(2), 2705, AND 907(b) AND EXPUNGEMENT OF SAID ARRESTS WHERE RETENTION OF SUCH RECORDS WOULD PREJUDICE FUTURE EMPLOYMENT OF EQUITY RIGHTS, WHERE VESTED RIGHTS OF REPUTATION ARE AT ISSUE, WHERE SAID CHARGES WERE DISMISSED PRIOR TO PLEA AGREEMENT AND [THE] RECORD IS SILENT OF ANY OTHER AGREEMENT, NOTICE THEREOF OF CONTRACT WITH THE COMMONWEALTH, AND WHERE THERE WERE NEVER ANY MATERIAL FACTS TO SUBSTANTIATE CHARGE 2501(a) "CRIMINAL HOMICIDE" [SIC] WHEREFORE ALL SUCH ARREST CHARGES HAVE, DO AND WILL PREJUDICE APPELLANT'S OPPORTUNITIES FOR LOWER CUSTODY LEVELS WITHIN PRISON, PRERELEASE STATUS, BOOT-CAMP ELIGIBILITY AND/OR PAROLE, AND RIGHTS TO A CLEAR, FACTUAL GOVERNMENTAL RECORD, ABSENT DISCRIMINATION FROM SINGLING OUT DISFAVORED PERSONS PROHIBITED BY ARTICLE 1 SECTION 26 OF THE PENNSYLVANIA CONSTITUTION AND BILL OF ATTAINDER, ARTICLE 1, 9-10[?]
¶ 7 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." Commonwealth v. Drummond, 694 A.2d 1111, 1113 (Pa.Super. 1997). "We review the decision of the trial court for an abuse of discretion." Commonwealth v. Wolfe, 749 A.2d 507, 509 (Pa.Super.2000).
¶ 8 In his argument on appeal, Appellant does not contest the conviction or sentence arising form his negotiated guilty plea to one count of aggravated assault under 18 Pa.C.S.A. § 2702(a)(4). Instead, Appellant asserts that the retention of the arrest records on the dismissed charges will prejudice his future employment, opportunities for lower custody levels within prison, prerelease status, parole, boot-camp eligibility, and constitutional rights to a cleared record. Appellant concludes that he is entitled to a hearing, pursuant to Commonwealth v. Maxwell, 737 A.2d 1243 (Pa.Super.1999), on his motion to expunge the arrest records related to the charges which were dismissed as part of his negotiated plea bargain. We disagree.
¶ 9 In general, the Criminal History Record Information Act at 18 Pa.C.S.A. §§ 9101-9183, and specifically Section 9122, governs the expungement of criminal records as follows:
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(c) Maintenance of certain information required or authorized.—Notwithstanding any other provision of this chapter, the prosecuting attorney and the central repository shall, and the court may, maintain a list of names and other criminal history record information of persons whose records are required by law or court rule to be expunged where the individual has successfully completed the conditions of any pretrial or post-trial diversion or probation program. Such information shall be used solely for the purpose of determining subsequent eligibility for such programs and for identifying persons in criminal investigations. Criminal history record information may be expunged as provided in subsection (b)(1) and (2). Such information shall be made available to any court or law enforcement agency upon request.
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(e) Public records.—Public records listed in section 9104(a) (relating to scope) shall not be expunged.
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¶ 10 Our Supreme Court has held that in cases terminated by reason of a trial and acquittal, a petitioner is automatically entitled to the expungement of his arrest record. Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770 (1997). Except where prohibited by statute, petitions to expunge the records of arrests terminated without convictions for reasons such as nolle prosequi or ARD should be evaluated according to the factors listed in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981). D.M., supra at 137, 695 A.2d at 773; 18 Pa.C.S.A. § 9122; Commonwealth v. Maxwell, 737 A.2d 1243, 1244 (Pa.Super.1999). In D.M., our Supreme Court explained the Wexler balancing test as follows:
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