Commonwealth v. Giulian

• Decision Date: 19 July 2016
• Docket Number: No. 75 MAP 2015,75 MAP 2015
• Citation: 141 A.3d 1262
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Victoria C. GIULIAN, Appellant.
• Court: Pennsylvania Supreme Court

141 A.3d 1262

COMMONWEALTH of Pennsylvania, Appellee

v.Victoria C. GIULIAN, Appellant.

No. 75 MAP 2015

Supreme Court of Pennsylvania.

Argued April 6, 2016.

Decided July 19, 2016.

Matthew Dale Janssen, Thomas Ian Plotkin, Pepper Hamilton LLP, Philadelphia, for Juvenile Law Center, et al., Amicus Curiae.

Jason S. Dunkle, JD Law, P.C., State College, for Victoria C. Giulian, Appellant.

Crystal Lynn Hundt, Centre County Dist. Atty's Office, Stacy Parks Miller, for Com. of Pa., Appellee.

OPINION

Justice DOUGHERTY

.

We consider the statutory requirements for expungement of criminal history record information for summary convictions pursuant to 18 Pa.C.S. § 9122(b)(3)

and conclude the lower courts erred in holding expungement unavailable as a matter of law in this matter. We therefore reverse and remand.

Appellant Victoria C. Giulian, then twenty years old, was arrested on April 20, 1997, and ultimately pleaded guilty to the summary offenses of public drunkenness, 18 Pa.C.S. § 5505

, and harassment, 18 Pa.C.S. § 2709(a)(1). At this same time, appellant was also charged with the misdemeanor offense of disorderly conduct, 18 Pa.C.S. § 5503(a)(2), a charge later withdrawn, and the summary offense of underage drinking, 18 Pa.C.S. § 6308(a), to which she pleaded guilty. Appellant was then arrested on September 27, 1998, and pleaded guilty to the summary offense of criminal mischief, 18 Pa.C.S. § 3304.

Appellant has had no arrests since September 27, 1998. On May 8, 2013, appellant filed a petition seeking expungement of these summary convictions from her criminal history record under Section 9122(b)(3)

, which provides:

(b) Generally. —Criminal history record information may be expunged when:

* * *

(3)(i) An individual who is the subject of the information petitions the court for the expungement of a summary offense and has been free of arrest or prosecution for five years following the conviction for that offense.

(ii) Expungement under this paragraph shall only be permitted for a conviction of a summary offense.

18 Pa.C.S. § 9122(b)(3)

.¹

The Commonwealth did not object to expungement of the withdrawn disorderly conduct charge and the guilty plea conviction for underage drinking, and the record of these charges was expunged. The Commonwealth did oppose expungement respecting the other offenses, however. The Centre County Court of Common Pleas granted the petition with regard to the 1998 criminal mischief conviction, but denied expungement of the records relating to the 1997 public drunkenness and harassment convictions. The court acknowledged appellant was “conviction free for 16 years” after 1998, but determined appellant was not entitled to expungement of the earlier convictions because her 1998 arrest and plea meant she did not remain free of arrest or prosecution for “at least five years following the 1997 convictions” as required by subsection (b)(3)(i). Trial Court Opinion, 7/16/14, slip op. at 4.

Appellant filed an appeal to the Superior Court, which affirmed the trial court in a brief published decision. Commonwealth v. Giulian, 111 A.3d 201 (Pa.Super.2015)

. The panel recognized penal statutes are to be strictly construed under the rule of lenity, with ambiguities resolved in favor of the defendant. Id. at 204. However, the panel considered the language of Section 9122(b)(3)(i) to be clear and unambiguous and held the language supported the trial court's reading of the term “free of arrest or prosecution for five years following the conviction.” Id. The panel interpreted the statutory language as requiring appellant to remain free of arrest or prosecution for “the” five years “immediately following her conviction for the 1997 offense[s],” rather than for “any ” five-year period following those offenses. Id. (emphases in original). In the panel's view, the reading proffered by appellant treated as surplusage the concluding statutory phrase, “following the conviction for that offense.” Id.

Appellant filed a petition for allowance of appeal, and this Court granted review of the following question:

Did the Superior Court commit an error of law in finding that the Petitioner was not statutorily eligible to have her summary convictions expunged pursuant to 18 Pa.C.S.A. § 9122(b)(3)

despite the fact that Petitioner has been free of arrest and prosecution for more than sixteen years following the convictions, over ten years longer than the statutory requirement?

Commonwealth v. Giulian, ––– Pa. ––––, 122 A.3d 1029 (2015)

.

Appellant argues she is eligible to have the records of her 1997 summary convictions expunged because she has been free from arrest and prosecution for more than sixteen years following those convictions, over ten years longer than the five-year requirement set forth in Section 9122(b)(3)(i)

. Appellant asserts the Superior Court incorrectly read into the statute a requirement that the five arrest-free years be “immediately” following the conviction sought to be expunged, when the actual text of the statute does not include that qualifier. Appellant claims courts should not add words or phrases when construing a statute unless the words are “necessary for a proper interpretation, do not conflict with the obvious intent of the statute, and do not in any way affect its scope and operation.” Appellant's Brief at 11, citing

Commonwealth v. Segida, 604 Pa. 103, 985 A.2d 871, 875 (2009). Appellant points out the General Assembly has used “immediately following” in other statutes when it intends to qualify timing in this way, and thus the omission of the phrase from Section 9122(b)(3)(i) is telling. Appellant's Brief at 12, citing, e.g., 18 Pa.C.S. § 9143 (Office of Attorney General has power to promulgate guidelines for implementation of statute for period of “one year immediately following the effective date of this section”).

In a second textual argument, appellant points to the absence of the definite article “the” to circumscribe the period referenced in Section 9122(b)(3)(i)

; she argues the Superior Court improperly supplied this limiting language to the statute when it interpreted it as requiring her to remain arrest-free for “the” five years “immediately following” the 1997 convictions. Giulian, 111 A.3d at 204. Appellant further stresses the Legislature's use of the present perfect tense—“has been free of arrest”—supports her interpretation that the statute does not refer to any particular five-year period, and that period can occur recently, as opposed to the Superior Court's conversion of the language, in the final paragraph of its opinion, to read “was not free of arrest or prosecution.” Id. (emphasis added). Moreover, appellant argues, the Superior Court's concern that her reading renders the final phrase of the statute surplusage is misplaced because the words “following the conviction for that offense” are necessary to establish the possible start date for any five-year waiting period, i.e., the period begins after conviction for the summary offense.

According to appellant, even if Section 9122(b)(3)

is ambiguous, it is a penal statute which must ordinarily be strictly construed, see 1 Pa.C.S. § 1928(b)(1), and under the rule of lenity any ambiguity must be construed in her favor. See

Commonwealth v. Fithian, 599 Pa. 180, 961 A.2d 66, 74 (2008) (if ambiguity exists in penal statute it should be interpreted in light most favorable to accused; where doubt exists, accused should receive benefit of doubt). In the alternative, appellant argues exceptions to remedial legislation—such as this expungement provision—are narrowly construed against the Commonwealth, because such a statute should be “construed liberally to effectuate its humanitarian objectives.” Appellant's Brief at 22, quoting

School Dist. of Phila. v. WCAB, ––– Pa. ––––, 117 A.3d 232, 242 (2015).

Finally, appellant argues the General Assembly intended to allow rehabilitated individuals like herself to secure expungement of their minor summary citations, in order to achieve better access to jobs or housing, and so, to the extent there is an ambiguity, this Court should interpret the statute with this particular legislative intent in mind.² Appellant claims the Superior Court's interpretation will produce absurd and unreasonable results, as it has here—where the record of the more recent summary citation was expunged while the older ones remain intact—and this cannot be the intent of the Legislature. See, e.g., 1 Pa.C.S. § 1922(1)

(presumption that General Assembly does not intend absurd, impossible or unreasonable result); Banfield v. Cortes, ––– Pa. ––––, 110 A.3d 155, 168 (2015) (same).

Echoing the interpretation of the courts below, the Commonwealth responds that appellant's 1997 summary convictions cannot be expunged because she failed to remain free of arrest or prosecution for five years, due to her subsequent 1998 arrest and conviction. The Commonwealth claims the statute is clear and unambiguous in its meaning: “a defendant must be arrest or prosecution free for five years immediately following the conviction for the offense she wishes to expunge.” Appellee's Brief at 8. The Commonwealth agrees Section 9122(b)(3)

is a penal statute, see id. at 9, but, like the Superior Court below, claims it is free from ambiguity and so the rule of lenity does not mandate a reading in appellant's favor. See

Giulian, 111 A.3d at 204. The Commonwealth asserts the statute makes plain the Legislature's intention that a conviction for a summary offense, no matter how old, can never be expunged if there is another conviction within five years of that first offense; under such circumstances, “the opportunity to expunge the initial summary offense disappears upon a defendant's subsequent arrest or prosecution and the focus turns to the new, subsequent offense.” Appellee's Brief at 10.

The Commonwealth rejects what it characterizes as appellant's “public policy” argument that the statute should be interpreted to give her “a break through expungement.” Id. at 13. Instead,...