Commonwealth v. P.J.B.

124 A.3d 744
CourtSuperior Court of Pennsylvania
DecidedSeptember 16, 2015
StatusPublished

This text of 124 A.3d 744 (Commonwealth v. P.J.B.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. P.J.B., 124 A.3d 744 (Pa. Ct. App. 2015).

Opinion

OPINION BY

FORD ELLIOTT, P.J.E.:

Appellant, P.J.B., appeals from the order of the Court of Common Pleas of York County entered on September 26, 2014, which denied appellant’s Petition to Direct Expungement of Case Pursuant to Accelerated Rehabilitative Disposition (“ARD”). We reverse.

On May 17, 2011, Pennsylvania State Police charged appellant with theft by unlawful taking pursuant to 18 Pa.C.S.A. § 3912(A). On July 15, 2011, appellant filed an ARD application with the York County District Attorney’s Office. On October 25, 2011, appellant was formally accepted into the ARD program with a 12-month term of probation supervision. The trial court imposed conditions of the ARD program including, inter alia, that appellant perform 35 hours of community service and pay costs, fees, and restitution. (Docket # 8.)

On September 26, 2012, the York County Adult Probation and Parole Department (“Probation Department”) filed an ARD violation petition pursuant to Pa.R.Crim.P. 318. The Probation Department alleged that appellant failed to pay costs, fees, and restitution and comply with her condition of community. service.1 A hearing was held on December 27, 2012. Appellant’s counsel stated that appellant was starting a new job in two weeks and would start making payments at that time. The trial court ordered that appellant’s “period of supervision be extended 12 months.” (Order, 12/27/12 at 1.) The extension was granted from the date of the hearing. The period of supervision was modified to expire on December 26, 2013.2

On December 3, 2013, the Probation Department filed a second ARD violation petition due to appellant’s continued failure to pay costs, fees, and restitution. The Probation Department averred that appellant’s most recent payment was on July 24, 2013, and that appellant owed a balance of $1,208.78. A hearing was held on January 29, 2014. Immediately prior to the hearing, appellant paid her costs and restitution in full. The Probation Department verbally moved to withdraw the violation petition. The trial court granted the Probation Department’s request to withdraw the violation petition and authorized the Department to close the case. (Order, 1/29/14 at 1.) The assistant district attorney for the Commonwealth was present at that hearing and did not object to dismissal of the charges. There was no request by any party that the ARD program be [746]*746“terminated” or any suggestion that the Commonwealth intended to proceed on the charges under Pa.R.Crim.P. 318 as a result of condition violations.

After the hearing, appellant contacted the Probation Department and requested expungement of her arrest record. The Probation Department refused because appellant did not complete the ARD program within the two-year limit set forth in Pa. R.Crim.P. 316(B), which provides that: “[t]he period of such [ARD] program for any defendant shall not exceed two years.” According to the Probation Department, the two-year period imposed by Pa. R.Crim.P. 316(B) expired on October 26, 2013, two years from the date appellant was first' placed on ARD. The Probation Department determined that appellant’s failure to complete the program within two years effectively removed her from the purview of ARD such that she was not quálified for automatic expungement.

On April 29, 2014, appellant filed a petition to direct expungement of case. The petition was served on the assistant district attorney for the Commonwealth., The Commonwealth did not file objections to the expungement. A hearing was held on June 24, 2014. The assistant district attorney for the Commonwealth was present at the hearing and did not object to the expungement. In fact, according to the Commonwealth, “because [the] Probation [Department] withdrew the violation, it was treated as if she did, if fact, pay everything off within the two years.” (Hearing transcript, 6/24/14 at 2.) .,

The trial court nevertheless believed it was authorized to consider the “objections” of the Probation Department and “exercise its discretion” to deny expungement. By order dated September 26, 2014, the trial court denied appellant’s petition for ex-pungement.

[T]he rule on expungement does not make expungement automatic if there are objections, which indicates that despite the mandatory language contained in Rule 320(A), the court still maintains discretion in granting or denying ex-pungement.
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[T]he Defendant did not complete the ARD program in the allotted two year time frame as required by Rule 316(B) ... Because the Defendant failed to complete her ARD conditions within two years, we concluded that she did not ‘successfully’ complete the program, and therefore, should not benefit from ex-pungement of her record pursuant to the rules governing the ARD program.

Trial court opinion, 9/26/14 at 3-4.

On appeal, appellant raises two issues:

1. Whether the trial court erred as a matter of law when it denied Appellant’s request for an expungement when the- trial court closed Appellant’s ARD case and expungement is mandatory pursuant to Pa.R.Crim.P. 320(A) under the circumstances?
2. Whether the trial court erred as a matter of law when it denied Appellant’s request for expungement absent an objection from the ‘attorney for the Commonwealth,’ the only party with authority to object to an ARD expungement under Pa. R.Crim.P. 319 and Pa.R.Crim.P. 320(B)?

Appellant’s brief at 4.

Appellant first contends that the trial court was required to order automatic ex-pungement of her arrest record at the time it ordered the dismissal of the charges. We agree.

It is undisputed that, notwithstanding the amount of time it took for appellant to complete the ARD program, appellant’s [747]*747case was disposed of under the ARD program.3 Pa.R.Crim.P. 320 provides: ..

(A) When the judge orders the dismissal of the charges against the defendant, the judge also shall order the expungement of the defendant’s arrest record, subject to the provisions of paragraph (B). The ex-pungement order shall contain the same information that is required in Rule 490(C) in summary cases and Rule 790(C) in court cases. (Emphasis added.)
(B) If the attorney for the Commonwealth objects to the automatic ex-pungement, the objections shall be filed with the judge, together with the objections to dismissal, if any, within 30 days after service of a motion for dismissal under Rule 319, and copies of the objections shall be served on the’ defendant dr the defendant’s attorney. (Emphasis added.)
(C) If the objections are filed, the judge shall hold a hearing on the objections, affording all parties the opportunity to be heard.

We find the language of Pa. R.Crim.P. 320 to be clear and unambiguous in its terms. The rule straightfor-, wardly indicates that automatic expungement is mandatory when a judge orders the dismissal of charges against the defendant upon completion of ARD. The only exception is when “the attorney for. the Commonwealth objects to the automatic expungement.”

Instantly,, the trial court’s January 29, 2014 order, dismissing the charges against appellant pursuant to an ARD program, did not contemporaneously order the expungement of appellant’s arrest record. This was error.

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Cite This Page — Counsel Stack

Bluebook (online)
124 A.3d 744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-pjb-pasuperct-2015.