COURT OF COMMON PLEAS OF CLINTON COUNTY, PENNSYLVANIA

Transcription

1 COURT OF COMMON PLEAS OF CLINTON COUNTY, PENNSYLVANIA Guidance for Filing for Expungement of Criminal Charges Pursuant to Pennsylvania Rule of Criminal Procedure 490 (Summary Case Expungement): Note: These instructions are to be used as guidelines only and are not a substitute for trained legal counsel. The Court and its officers assume no liability for any inaccuracy of the information provided herein and such information is to be utilized at a Petitioner s own peril. 18 Pa.C.S.A provides circumstances under which a court must and may grant expungements of certain criminal charges in Pennsylvania. Section 9122(a)(1) mandates the expungement of nonconviction records (e.g., arrest records) where no disposition has been entered by the court of appropriate jurisdiction within 18 months after the date of arrest, and no disposition is available and no action is currently pending. Section 9122(a)(3) mandates expungement of criminal history (as well as all administrative Department of Transportation (DOT)) records for persons who have been convicted of underage purchase, consumption, possession or transportation of alcoholic beverages pursuant to 18 Pa.C.S Once the defendant has reached twenty-one (21) years of age and, having satisfied all conditions ordered pursuant to such conviction, such defendant may petition the court to order such records expunged. Keepers of records are required to expunge criminal history record information upon court order instructing them to do so. See 18 Pa.C.S. 9122(a)(2). There are, however, limitations imposed upon when a court may order expungement. Courts are not empowered to order expungements of certain criminal offenses enumerated under 18 Pa.C.S. 9122(b.1) where the defendant was placed on ARD for the violation of any of the following offenses and where the victim was under 18 years of age at the time of the offense: 18 Pa.C.S.A (relating to rape) 18 Pa.C.S.A (relating to statutory sexual assault) 18 Pa.C.S.A (relating to involuntary deviate sexual intercourse) 18 Pa.C.S.A (relating to sexual assault) 18 Pa.C.S.A (relating to aggravated indecent assault) 18 Pa.C.S.A (relating to indecent assault) 18 Pa.C.S.A (relating to indecent exposure) 18 Pa.C.S.A. 5902(b) (relating to prostitution and related offenses) 18 Pa.C.S.A (relating to obscene and other sexual materials and performances) Courts are permitted, but not required, to order the expungement of criminal history records regarding a subject of an information (official criminal charging document) who has both reached seventy (70) years of age and who has been free of arrest or prosecution for ten (10) years following release from confinement or supervision. See 18 Pa.C.S. 9122(b)(1). The statute also provides for the posthumous expungement of criminal history record information after the subject of the information has been dead for at least

2 three (3) years, the grant of which is also at the court s discretion. See 18 Pa.C.S. 9122(b)(2). Perhaps most widely used, 18 Pa.C.S. 9122(b)(3)(i) provides permission for a court to expunge criminal history information when, 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 (5) years following such conviction. 18 Pa.C.S. 9122(b)(3)(ii) emphasizes that paragraph (3) only applies to permissive expungements of summary offenses. From the statute, it is clear that, notwithstanding ARD expungements (which are available pursuant to Rules 319 and 320 and for which there is another specific packet available), unless the subject of an information has been dead for three (3) years or is seventy (70) years old and has been free of both arrest and prosecution for ten (10) years, the only criminal record information that a court is ordinarily permitted to expunge is: (1) nonconviction data (e.g., arrest records); (2) summary offense convictions where the offender has been free of arrest for at least five (5) years; and (3) nonconviction and conviction data related to an underage possession or consumption of alcohol charge, upon the defendant s reaching 21 years of age. The Pennsylvania Rules of Criminal Procedure govern the procedure by which the Court may be Petitioned for an Order of Expungement. With certain limited exceptions, Rules 490 and 790 collectively govern the procedure for, respectively, summary case and court case expungements in Pennsylvania. This is the Rule 490 Packet for Summary Case Expungement. Under Rule 490, a current copy of Petitioner/Defendant s Pennsylvania State Police criminal record must be attached to the Petition for Expungement. To qualify as current, such criminal record must have been obtained no longer than sixty (60) days prior to filing the Petition for Expungement with the Clerk of Courts. Note: For ARD Expungement, a Defendant/Petitioner should proceed under Rules 319 and 320 and the packet specifically for ARD Expungements. These instructions apply to expungements, which are NOT pursuant to ARD: If the charges sought to be expunged were graded as summary offenses for which no disposition was entered or for which disposition was entered by a Magisterial District Judge, complete and file with the Court of Common Pleas the Form Petition for Expungement pursuant to Rule 490 (summary cases) of the Pennsylvania Rules of Criminal Procedure by following the instructions for a Rule 490 (summary case) expungement set forth below. The complete Rule 490 packet should contain a Form Order (2 pages), a certification to be completed by the Magisterial District Judge and Consent or Objection to be completed by the District Attorney (1 page) and a Petition for Expungement to be completed by Defendant/Petitioner (1 page). Rule 490 (Summary Case) Expungements In the context of Rule 490 expungements, the phrase graded as summary offenses for which no disposition was entered means that a defendant was arrested and charged with a summary offense but no final determination as to defendant s guilt on that charge was made by the court, i.e., due to withdrawal of the charges, or for some other reason, the

3 charges were not disposed of, by plea, conviction or acquittal of the defendant. For example, if defendant was arrested and charged with committing retail theft (first offense), which is graded as a summary offense, and, for whatever reason, no final determination as to guilt of the defendant on that charge was made prior to the passing of 18 months and no action regarding that charge is pending (i.e. proceedings on the charges have been discontinued and no further proceedings are scheduled) but information regarding that arrest remain in the records of the arresting agency, and defendant wishes to have those arrest records expunged, defendant should utilize the Rule 490 packet. Rule 490 expungement is also available for summary offense(s) that were disposed of by a Magisterial District Judge (MDJ) where defendant either pled guilty to the offense charged or was convicted after a trial before the MDJ. This represents a guilty disposition (by plea or conviction) on that summary offense charge and there are both minor court and arrest records, which, in certain cases, may be expunged according to the provisions of 18 Pa.C.S In ALL Rule 490 cases, it is the responsibility of the Defendant/Petitioner for expungement to do the following: (1) Complete all requested information on the Rule 490 Petition for Expungement; (2) Fill in the name of the Defendant/Petitioner and Criminal Docket Number in caption (top portion of first page) of the Form Order for Expungement; (3) Complete all requested demographic information on the second page of the Form Order for Expungement; (4) Obtain a copy of Defendant/Petitioner s criminal record from the Pennsylvania State Police. The criminal record check must not be more than sixty (60) days old at the time the Petition for expungement is filed. Information on submitting a request for PSP records can be found at the following URL: &mode=2 (5) Fill in the name of the Defendant/Petitioner and Criminal Docket Number on the form containing the Certification By the Magisterial District Judge and District Attorney s Consent or Objection ; (6) Transmit a copy of the completed Petition, Form Order and State Police Criminal History Check along with the Certification and Consent or Objection Form to the Magisterial District Judge (MDJ) for the MDJ to endorse the correct certification for your situation, i.e., if you pled guilty or were convicted of a summary offense and you were ordered to pay fines or sentenced to incarceration or other conditions and all fines have been paid and all conditions satisfied, the MDJ will sign the top line of the MDJ Certification. On the other hand, if no guilty disposition was ever entered for the summary offense with which you were charged and it has been eighteen (18) months or longer from the date of your arrest and no charges are currently pending and you are attempting to expunge only nonconviction data (arrest records), the MDJ will sign the bottom line of the Certification. The MDJ will then transmit the Form to the District Attorney for his consent or objection to the requested expungement. The District Attorney will either

4 consent or object to the expungement and transmit the completed Form back to you 1. (7) Once every part of the packet is complete, you must make eight (8) copies of the completed packet and file them with the Clerk of Courts. Enclose a certified check, money order or cash in the amount of $20.50, for filing fees, made payable to Clinton County Clerk of Courts. (8) Either request one of your time-stamped copies back from the Clerk of Courts and serve that copy upon the District Attorney or include with your filing a request that the Clerk of Courts transmit the eighth copy of your packet to the District Attorney. No later than 14 days after the expungement packet is filed with the Clerk of Courts, the Court shall grant or deny the petition or shall schedule a hearing, affording all parties an opportunity to be heard. Pursuant to Pennsylvania Rule of Criminal Procedure 490(B)(4)(b), once an Order for expungement has been entered by the Court, it must be stayed for thirty (30) days, pending appeal. If the Court grants the Order for expungement, after the thirty (30) day appeal period has passed, the Clerk of Courts shall serve a certified copy of the expungement Order on each criminal justice agency and records repository identified in the Order. If the Court denies the petition for expungement, the Court shall enter an order denying the petition and stating the reasons for the denial. 1 If the District Attorney objects to the proposed expungement, after the expungement packet is filed, a hearing will be scheduled at which all parties will have an opportunity to be heard.

5 IN THE COURT OF COMMON PLEAS OF CLINTON COUNTY, PENNSYLVANIA Commonwealth of Pennsylvania ) No Vs. ) CRIMINAL ) Petition for Expungement Pursuant to Pa.R.Crim.P. 490 (Summary Cases) AND NOW, the petitioner avers the following and requests that this petition for expungement pursuant to Pa.R.Crim.P. 490 be granted for the reasons set forth below. When this petition is filed with the Clerk of Courts, the petitioner shall serve a copy upon the District Attorney I, the undersigned petitioner, aver that the facts set forth in this petition are true and correct to the best of my personal knowledge or information and belief, and are made subject to the penalties of unsworn falsification to authorities under 18 Pa.C.S Signature of Petitioner Date AOPC Form Updated Rev 12/07/ Modified for Use in Clinton County 09/25/2014

6 IN THE COURT OF COMMON PLEAS OF CLINTON COUNTY, PENNSYLVANIA Commonwealth of Pennsylvania ) No Vs. ) CRIMINAL ) ORDER AND NOW, this day of, 2, after consideration of the presented by, IT IS ORDERED that the Petition/Motion is. The criminal charges in the above-captioned case specified below are dismissed. The defendant s arrest record regarding these charges shall be expunged. Further, IT IS ORDERED that the arresting agency shall destroy or deliver to defendant or representative all criminal records, fingerprints, photographic plates and photographs pertaining to the charge(s) specified below, which resulted from the arrest(s) of. Moreover, the arresting agency shall request the Federal Bureau of Investigation to return to them all records pertaining to said arrest(s), which shall be destroyed by said agency upon their receipt of same. In addition, all criminal justice agencies upon which this order is served shall expunge and destroy the official and unofficial arrest and other criminal records, files, and other documents pertaining to the captioned proceedings. The information required under Pa.R.Crim.P. 490 appears on the attached page(s) which is hereby incorporated into this ORDER by reference. Pursuant to Rule 490(B)(4)(b), this Order shall be stayed for thirty (30) days. BY THE COURT: J. Page 1 of 2

7 Pursuant to Pa.R.Crim.P. 490, the following information is provided: 1. Petitioner Name: 2. Alias(es): 3. Petitioner s Address: 4. Petitioner s Date of Birth: / / 5. Petitioner s Social Security Number: Name and address of the judge of the Magisterial District or Philadelphia Municipal Court who accepted the guilty plea or heard the case: 7. Name and mailing address of the affiant as shown on the complaint or citation, if available: 8. Magisterial District Court number: 9. Docket Number: 10. The date on the citation or complaint, or the date of arrest, and if available, the criminal justice agency that made the arrest: 11. The specific charges, as they appear on the charging document, to be expunged and applicable dispositions (attach additional sheets if needed): 12. If the sentence includes a fine, costs, or restitution, whether the amount due has been paid: 13. The reason for expungement: 14. The criminal justice agencies upon which certified copies of the order shall be served: Page 2 of 2

8 IN THE COURT OF COMMON PLEAS OF CLINTON COUNTY, PENNSYLVANIA Commonwealth of Pennsylvania ) No Vs. ) CRIMINAL ) CERTIFICATION BY MAGISTERIAL DISTRICT JUDGE I certify that the Defendant has paid the fine and successfully completed all the terms and conditions of the sentence imposed for the violation. Date: BY: Magisterial District Judge OR I certify that no disposition is available and no action is pending and it has been eighteen months from the date of the arrest. Date: BY: Magisterial District Judge DISTRICT ATTORNEY S CONSENT OR OBJECTION I,, Esq., District Attorney, accept service of the attached petition for expungement of summary offense(s) from Defendant s criminal record and I DO NOT OBJECT OBJECT (Objections must be filed within 30 days after service of the petition and copies of the objections must be served on the petitioner s attorney or the petitioner if unrepresented.) Date: BY: District Attorney