Expunging & Sealing Criminal Records: Hearings Training

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1 Expunging & Sealing Criminal Records: Hearings Training Hosted by the Young Lawyers' Division Monday, March 13, 2017 Tuesday, March 14, 2017 Philadelphia Bar Association, Philadelphia

2 Philadelphia Bar Association The Philadelphia Bar Association, founded in 1802, is America's first chartered metropolitan bar association. Its founders and early leaders included several of the nation's founders. It was originally formed by a small group of Philadelphia lawyers who gathered together to share law books and professional resources. Founded as the Law Library Company of Philadelphia it was later incorporated as the Law Association and then the Bar Association. Over the years its members have included some of the nation's most prominent lawyers, judges, public servants, business, civic and community leaders. The mission of the Philadelphia Bar Association is to serve the profession and the public by promoting justice, professional excellence and respect for the rule of law. In so doing, the Association strives to foster understanding of, involvement in and access to the justice system. To read more about the Philadelphia Bar Association s storied history and the term Philadelphia Lawyer that predates the nation's founding, having its origins in 1735, please visit the link to our history page, The Philadelphia Bar Association - your partner in justice - is a statewide Continuing Legal Education (CLE) provider offering CLE courses to lawyers and members of the business and legal communities throughout the region. Take advantage of our full calendar of CLE courses taught by leaders of the profession - with a level of quality and service that has become a hallmark of America's first bar association. PHILADELPHIA BAR ASSOCIATION 1101 Market Street, 11th Floor Philadelphia, PA Phone: (215) Fax: (215) WEBSITE:

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5 FOREWORD This CLE program, Expungement Hearings Training, serves as training for all volunteer attorneys willing to accept and represent a client in an upcoming expungement hearing. Once the expungement petition has been filed a hearing date may be set. During a contested expungement hearing, the judge will conduct a balancing test weighing the right of the petitioner to be free from the harm of keeping the arrest record versus the Commonwealth's interest in preserving the record. Practitioners receive step-by-step guidance as to how to prepare for and represent a client in an expungement hearing. We thank the planners and presenter, Jamie Gullen, Esq., Staff Attorney, Employment Unit, Community Legal Services of Philadelphia (CLS), for their support and contributions to planning and presenting this program. Speaker s biography is available on the pages that follow. Philadelphia Bar Association Continuing Legal Education Tara D. Phoenix, Director March 2017 i

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7 BIOGRAPHY FEATURED SPEAKER: Jamie Gullen, Esq. Ms. Gullen is an attorney in the Employment Unit at Community Legal Services (CLS). Ms. Gullen began her career at CLS as a law student intern in 2010, and was awarded a Penn Law fellowship sponsored by the Langer, Grogan, and Diver law firm to continue working at CLS upon graduation. Ms. Gullen s work focuses on increasing access to education and employment opportunities for youth who have juvenile or criminal records through a combination of direct representation, community education, and policy advocacy. Prior to law school, Ms. Gullen taught elementary school in the South Bronx through Teach for America. Ms. Gullen received the Edwin C. Baker Award for Excellence in Advancing Social Justice, given to the graduating law student who completed the most pro bono work. Ms. Gullen also received the Jackson-Healy Public Service Award and the Philadelphia Bar Association Public Interest Section Law Student Award. Ms. Gullen was the Editor-in-Chief of the University of Pennsylvania Journal of Law and Social Change (JLASC) from Her article on racial segregation and education policy was published in Volume 15 of the journal. iii

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9 Expunging & Sealing Criminal Records: Hearings (Slides) Authored/Submitted By: Jamie Gullen, Esq. Staff Attorney, Employment Unit Community Legal Services of Philadelphia (CLS)

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11 EXPUNGING & SEALING CRIMINAL RECORDS: HEARINGS Young Lawyers Division Training Jamie Gullen, Esq. Staff Attorney Agenda Overview: Expungement and Sealing Common objections Case law What to expect in court What happens next?

12 Cleaning Up a Record: Expungement Expungements: A relatively short process (approximately 6 10 months) Under 18 Pa. C.S.A. 9122, expungement is possible for: Non convictions (charges withdrawn, dismissed, nolle prossed, or not guilty) ARD/Section 17 if the program was completed Summary convictions if arrest free for five years Felony & misdemeanor convictions if you are 70+ and have been free from arrest for 10 years Sealing Records in PA As of November 2016, old and minor misdemeanors may be sealed, or subjected to limited access. Must be 10 years arrest free following release from confinement or supervision (whichever is later). M2s, M3s and ungraded misdemeanors (punishable by no more than 2 years) are eligible to be sealed. A person is ineligible if he/she has EVER been convicted of: Simple Assault (unless an M3) Any M1, felony, or four + misdemeanors Other less common offenses Examples of eligible charges: DUIs, minor theft convictions, minor drug convictions

13 Sample CHR (Expungement) Sample CHR (Redaction) Redaction/Partial Expungement

14 Sample CHR (Redaction) Redaction/Partial Expungement Can t be expunged Sample CHR (Redaction) Redaction/Partial Expungement Can be expunged

15 Sample CHR (Sealing) Sample CHR (Sealing) Can be sealed

16 Sample CHR (Sealing) Can be expunged What Happens After Filing? Just because someone is eligible to have a record expunged does not mean it will be expunged. The District Attorney is given an opportunity to object to all expungement petitions. If the DA does NOT object, the petition is granted. If the DA does object, the case is listed for a hearing before a judge.

17 Legal Standard Commw. v. Wexler, 494 Pa. 325 (1981) At the hearing, the DA has the ultimate burden and must present specific compelling evidence justifying the retention of the record. If they do so, then the DA s interest is balanced against the petitioner s right to expungement. Legal Standard Cnt d Under Wexler, the court must weigh several factors including: Strength of the Commonwealth s case and reason for wanting to retain the record Criminal record history of petitioner Age and employment history of petitioner Adverse consequences to the petitioner caused by the record

18 Exceptions to Wexler Not Guilty charges = expungement as of right (Commonwealth v. DM, 548 Pa. 131, 137 (1997)) Dismissed Lack of Evidence (LOE) charges = should rarely if ever be denied expungement (Commonwealth v Rodland, 871 A.2d 216, 221 (Sup. Ct. 2005)). Exceptions to Wexler Guilty Pleas: Commonwealth v. Lutz, 788 A.2d 993, 1000 (Pa. Super. 2001) Dismissed charges related to a guilty plea are part of a quasi contract between the defendant and the state Petitioners are thus not entitled to expungement of those charges BUT: has been narrowed and questioned since

19 Exceptions to Wexler Guilty Pleas: Commonwealth v. Hannah, 2009 PA Super 3, 19 (Pa. Super. Ct. 2009) Commonwealth has the burden to prove by clear and convincing evidence that Lutz applies Commonwealth must present evidence of the plea agreement to show that the charges were dropped in exchange for the plea Even if they do, can still argue that expungement is proper unless plea deal says otherwise Common Objections Serious charges Recent charges Pattern of charges Fines & costs owed on case Petitioner is still on probation Charges are not prejudicing petitioner

20 Suggested Reponses Under Wexler, reasons for retaining charges must be specific. General concerns about seriousness, recentness, or # of cases cannot be enough. To show a pattern, must be akin to a modus operandi. Commonwealth v. McKee, 516 A.2d 6 (Pa. Super. 1986). Fines & costs should NOT prevent redactions because conviction remains Unclear what will happen with sealing Suggested Reponses Cnt d Probation status should not matter since conviction will remain argue that extra charges are harmful Petitioner does not have the burden to prove specific prejudice Wexler says that charges are inherently prejudicial

21 Court Tips Check in with court staff as soon as you arrive to get on their radar and avoid a long wait Check in with DA before court starts if you can they may be requesting a continuance, or dropping their objections As Petitioner s counsel, you argue first give BRIEF overview of case, DA s burden, and client s reasons for expungement DA responds with why they are objecting if they try to introduce or summarize any police paperwork, object to hearsay for the record (will likely be overruled) If needed, you can reply, have your client testify, etc. If Expungement Is Granted Orders are generated within a few weeks Expunged information comes out of court system quickly Court sends orders to the PA State Police and Phila Police who then expunge their records This process can take up to six months or more

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23 Ominbus Memorandum of Law on Expungements in Pennsylvania Submitted By: Jamie Gullen, Esq. Staff Attorney, Employment Unit Community Legal Services of Philadelphia (CLS)

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25 OMINBUS MEMORANDUM OF LAW ON EXPUNGEMENTS IN PENNSYLVANIA INTRODUCTION Expungement law in Pennsylvania is well settled. The seminal Pennsylvania Supreme Court case Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), found that when criminal charges are brought but do not lead to convictions, there is a due process right under the Pennsylvania Constitution to petition for expungement. Wexler also set out the standard for how a trial court should analyze such a petition for expungement. The principles stated in Wexler have been followed and refined by a host of cases in both the Superior and Supreme Courts of Pennsylvania. DISPOSITION OF CHARGES Charges that result in acquittal or a finding of not guilty must be expunged as of right. Commonwealth v. DM, 548 Pa. 131, 137 (1997). Consideration of any other factors is unnecessary, and indeed inappropriate. Id at 136. Furthermore, charges dismissed for lack of evidence are akin to acquittal, and should rarely, if ever be denied expungement. Commonwealth v Rodland, 871 A.2d 216, 221 (Sup. Ct. 2005). For all other non-conviction dispositions, the burden of proof is on the Commonwealth to show why an expungement should not be granted. Wexler, 431 A.2d at 331. To meet this burden, the Commonwealth must present compelling evidence for why the charges at issue must be retained. Id. Center City Office: 1424 Chestnut St. Philadelphia, PA Telephone: clsphila.org North Philadelphia Law Center: 1410 West Erie Ave. Philadelphia, PA Telephone:

26 COMMONWEALTH S BURDEN To meet the compelling evidence standard, the Commonwealth cannot rest on generalized concerns about maintaining records. Wexler, 494 Pa. at 335. In fact, the Wexler Court rejected the Commonwealth s argument that records should be retained so that law enforcement, judges, and others could review what the petitioner had done throughout her whole life. Id. Furthermore, the Commonwealth cannot justify maintaining arrest record where no analysis of appellant's particular case is made, nor special facts elucidated which show the necessity of retaining appellant's arrest record. Commonwealth v. Rose, 397 A.2d 1243, 1244 (Pa. Super. Ct. 1979). Moreover, retention of a record to inhibit further crimes of the same type is not a compelling justification for denial of expungement. Rambo v. Commissioner of Police, 447 A.2d 279, 282 (Pa. Super. Ct. 1982); Rose, 397 A.2d at In order to justify the retention of an arrest record based on a pattern of behavior, the Commonwealth must present evidence that there is an identifiable pattern, such as through expert testimony of a modus operandi or through specific compelling evidence found in the case file. See, e.g., Commonwealth v. McKee, 516 A.2d 6 (Pa. Super. Ct. 1986); Commonwealth v. Drummond, 694 A.2d 1111 (Pa.Super. 1997). COMMONWEALTH S INTEREST VERSUS PETITIONER S RIGHT When the Commonwealth presents compelling evidence to justify retaining non-conviction charges, the court must balance the Commonwealth s interest against the right of the Petitioner to have inherently prejudicial non-conviction charges expunged. In balancing the two, the court should consider the following factors, among others: Center City Office: 1424 Chestnut St. Philadelphia, PA Telephone: clsphila.org North Philadelphia Law Center: 1410 West Erie Ave. Philadelphia, PA Telephone:

27 The strength of the Commonwealth's case against the petitioner The reasons the Commonwealth gives for wishing to retain the records The petitioner's age, criminal record, and employment history The length of time that has elapsed between the arrest and the petition to expunge and The specific adverse consequences the petitioner may endure should expunction be denied. (Wexler, 494 Pa. at 330). While evidence that a petitioner has suffered or will suffer specific adverse consequences because of an arrest record may be sufficient to outweigh the Commonwealth s justification for retaining the record, the petitioner is not required to allege or prove specific harm that he is suffering as a result of an arrest record. An arrest record is considered inherently prejudicial and must be expunged unless the Commonwealth has met its heavy burden to show why expungement should not be granted. Wexler, 494 Pa. at PARTIAL EXPUNGEMENT OR REDACTION In many cases where multiple charges are brought against an individual, some result in conviction while others do not. A petitioner may seek a partial expungement, also called a redaction, to have the non-conviction charges expunged. Because the charges are non-convictions, they should be analyzed the same as full expungements. Wexler, 431 A.2d at 879; Commonwealth v. Maxwell, 737 A.2d 1243 (Pa. Super. 1999). The one very narrow exception is in the case where a petitioner pled guilty to a charge in exchange for the dismissal of the other charges against him. An expungement may be denied only when the Commonwealth Center City Office: 1424 Chestnut St. Philadelphia, PA Telephone: clsphila.org North Philadelphia Law Center: 1410 West Erie Ave. Philadelphia, PA Telephone:

28 proves by clear and convincing evidence (such as by presenting evidence from the plea colloquy) that the charges were dismissed in exchange for the plea. Commonwealth v. Lutz, 788 A.2d 993, 1000 (Pa. Super. 2001); Commonwealth v. Hanna, 2009 PA Super 3, 19 (Pa. Super. Ct. 2009). COURT FINES AND COSTS In the case of a redaction, the petitioner may owe court fines and costs that are associated with the conviction in the case. Redacting the non-conviction charges does not impact the conviction or associated fines and costs in any way, and therefore the existence of such fines and costs does not constitute a compelling justification for retaining non-conviction charges. In rare circumstances, a petitioner may be eligible for an expungement when there is a balance owed on the case, usually due to a bail judgment. Records of bail judgments are maintained separately by the court, and there is a separate process to reduce, vacate, or enter into a payment plan to address bail judgments. Especially since there is a separate mechanism to address bail judgments, a general concern with maintaining records cannot meet the Commonwealth s burden of proof. See Wexler, 494 Pa. at 335. EXPUNGEMENT OF CONVICTIONS In addition to the due process right to expungement of non-conviction charges, the Pennsylvania legislature has added statutory criteria that allow for expungement in cases that led to participation in diversion programs, or in some cases, convictions. Diversion Programs When a petitioner completes the Accelerated Rehabilitative Disposition (ARD) program, the case becomes eligible for expungement. ARD cases should be Center City Office: 1424 Chestnut St. Philadelphia, PA Telephone: clsphila.org North Philadelphia Law Center: 1410 West Erie Ave. Philadelphia, PA Telephone:

29 analyzed under the same Wexler framework as other non-conviction charges. Commonwealth v. Armstrong, 434 A.2d 1205 (Pa. 1981). When a nolo contendere/probation without verdict plea is entered for an offense under Section 17 or 18 of the Controlled Substance, Drug, Device and Cosmetic Act and the petitioner successfully completes probation, expungement is mandatory. Commonwealth v. Belville, 711 A.2d 510, 512 (Pa. Super. Ct. 1998). Summary Convictions When an individual is convicted of a summary offense, the conviction may be expunged once the individual has been free of arrest for five years. 18 Pa.C.S That five year period can either be immediately following the conviction, or preceding the petition for expungement. Commonwealth v. Wubbe, 59 Cumb. 34 (2009). Over 70 When an individual reaches age 70 and has been arrest-free for a period of ten years, the individual may petition for expungement of misdemeanor and/or felony convictions. 18 Pa.C.S Pardons When an individual received a pardon from the Governor, the conviction(s) that have been pardoned become automatically eligible for expungement, - the trial court has no discretion and the expungement must be granted. Commonwealth v. C.S., 517 Pa. 90 (1987). Center City Office: 1424 Chestnut St. Philadelphia, PA Telephone: clsphila.org North Philadelphia Law Center: 1410 West Erie Ave. Philadelphia, PA Telephone:

30 SEALING OF CONVICTIONS Under a new law called Act 5, some old and minor misdemeanor convictions can now be sealed from public view under a new process called limited access. Misdemeanors of the second and third degrees, 3 rd degree simple assault, and ungraded misdemeanors can be given limited access once ten years have passed since the time supervision was complete. If petitioners have ever been convicted of a 1 st degree misdemeanor, a felony, or simple assault (unless 3 rd degree), they are ineligible under Act Pa.C.S Center City Office: 1424 Chestnut St. Philadelphia, PA Telephone: clsphila.org North Philadelphia Law Center: 1410 West Erie Ave. Philadelphia, PA Telephone:

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