Com. v. Anderson II, J. (memorandum)

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J-S22008-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JAMES D. ANDERSON II Appellant No. 1866 MDA 2013 Appeal from the Order September 18, 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0004418-2001 BEFORE: PANELLA, J., DONOHUE, J., and MUNDY, J. MEMORANDUM BY PANELLA, J.: FILED JUNE 26, 2014 Appellant, James D. Anderson II, appeals from the order denying his petition to expunge arrest records, entered by the Honorable John H. Chronister, Court of Common Pleas of York County. After careful review, we affirm. On July 9, 2001, the Commonwealth charged Anderson with one count of misdemeanor loitering and prowling, and one count of misdemeanor criminal trespass. On November 15, 2001, Anderson pled guilty to one count of summary harassment, and the Commonwealth nolle prossed the two misdemeanor charges. On July 31, 2013, Anderson filed a petition to expunge the summary harassment charge pursuant to Pa.R.Crim.P., Rule 490. Anderson also requested that the court expunge the arrest records associated with the two J-S22008-14 nolle prossed misdemeanor charges. The trial court expunged the record of the summary harassment charge, but declined to expunge the arrest records for the misdemeanor charges. Anderson then filed this timely appeal. On appeal, Anderson contends that the trial court erred in failing to expunge the misdemeanor arrest records. Our standard of review is wellsettled: 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. We review the decision of the trial court for an abuse of discretion. Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005) (citation omitted). expungement of a criminal arrest record. This right is an adjunct of due Id. (citation omitted). In Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), our Supreme Court held that the Commonwealth bears the Id., 494 Pa. at 331, 431 A.2d at 880. The Court in Wexler also delineated the duty of the trial court in deciding whether to order expungement: determining whether justice requires expungement, the [c]ourt, in each -2- J-S22008-14 attendant to maintenance of the arrest record against Id., 494 Pa. at 329, 431 A.2d at 879. The law requires that where a suspect is charged, but not convicted of at a hearing that expungement is improper. See, e.g., Commonwealth v. D.M., 695 A.2d 770, 772 (Pa. 1997); Wexler, supra; Commonwealth v. Waughtel, 999 A.2d 623, 625 (Pa. Super. 2010); Commonwealth v. Hanna, 964 A.2d 923, 925 (Pa. Super. 2009); Commonwealth v. Rodland, 871 A.2d 216, 221 (Pa. Super. 2005); A.M.R., 887 A.2d at 1269; Commonwealth v. Maxwell, 737 A.2d 1243 (Pa. Super. 1999); Commonwealth v. G.C., 581 A.2d 221 (Pa. Super. 1990); Commonwealth v. Chacker, 467 A.2d 386 (Pa. Super. 1983). In A.M.R., we explained that [i]n Wexler, our Supreme Court set forth a non-exclusive list of the factors a court should examine in determining whether the Commonwealth has satisfied its burden of demonstrating why an arrest record should be retained: These factors include [1] the stren case against the petitioner, [2] the reasons the Commonwealth criminal record, and employment history, [4] the length of time that has elapsed between the arrest and the petition to expunge, and [5] the specific adverse consequences the petitioner may endure should expunction be denied. 887 A.2d at 1269 (quoting Wexler, 494 Pa. at 330, 431 A.2d at 879). (bracketed numbers in original). Where charges are dismissed pursuant to a negotiated plea agreement, a petitioner is not entitled to expunction of the -3- J-S22008-14 records of the dismissed charges. See Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001). Anderson argues that Lutz does not apply. First, Anderson contends that Lutz is not good law, citing to Commonwealth v. Hanna, 964 A.2d 923 (Pa. Super. 2009). The Hanna Lutz is arguably inconsistent with broad language from this Court and our Supreme Court, as well as the prevailing trend of our case law. -929. However, the Hanna panel also acknowledged that Lutz is still controlling law until it is overruled by this Court en banc or by the Supreme Court of Pennsylvania. See 964 A.2d at 929. Furthermore, a subsequent panel of this Court applied Lutz mechanically to affirm the denial of a petition for expungement agreement. of charges withdrawn pursuant to a negotiated plea See Commonwealth v. Waughtel, 999 A.2d 623, 626-627 (Pa. Super. 2010). Anderson does not identify any controlling precedent that overrules Lutz, and our independent research has not revealed any such precedent. Thus, we conclude that we are still bound by Lutz. In the alternative, Anderson argues that Lutz is distinguishable from the present case. In Lutz, the defendant agreed to plead guilty to one count of aggravated assault in exchange for dismissal of all other pending charges. The Lutz panel found that expunction of the arrest records for the dismissed charges would leave no record for the basis of the plea agreement. See 788 A.2d at 1000. Furthermore, the Lutz panel concluded -4- J-S22008-14 that the defendant would receive more than he bargained for if the record of the dismissed charges was expunged. See id. Here, Anderson argues, there is no need to preserve the basis of the plea agreement, as the conviction record for the summary charge he pled guilty to has been properly expunged. While we agree that Lutz is distinguishable on this basis, the alternative reasoning set forth in Lutz, that Anderson would receive more than he bargained for if expunction were granted, still applies to the instant case.1 The trial court did not abuse its Order affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/26/2014 ____________________________________________ 1 Hanna makes a strong argument that Lutz has th assumed that there is no such agreement [to forgo expungement of arrest Hanna does not overrule Lutz. -5-

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