O Expungements, Where Art Thou?August 11, 2016
Pennsylvania allows Summary Expungements under 18 Pa.C.S. §9122(b)(3) if you have been arrest free for five years at the time you file the expungement. The specific language is:
(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.
More than One Summary
Often, clients have more than one summary conviction. The reason for this is irrelevant, but we normally see this when a person has a string of public drunkenness or disorderly conduct summary convictions from their youth. On these cases, once five years passes from the date of the last conviction, we file an expungement petition to expunge all of the summaries. Recently, we have seen the Commonwealth object to this practice by arguing the person has not been arrest free if they had more then one summary conviction. This argument is ridiculous and completely without merit. However, some judges follow the argument and denied summary expungements.
In 2001, in State College, Pennsylvania, a person gets a public drunkenness summary citation and pleads guilty. Same in 2002 and 2003. They have no other contacts with law enforcement in their lifetime. In 2016, the person files three expungement petitions in the Court of Common Pleas of Centre County Pennsylvania; one for each of the three summary offenses. The district attorney’s office objects to the 2001 and 2002 expungements but does not object to the 2003 expungements. The basis of the objection is the person did not remain arrest free for five years from the 2001 and 2002 convictions because the 2002 and 2003 convictions were within five years of the summary offenses in 2001 and 2002. The judge agreed with the DA, granted the 2003 expungement, but denied the 2001 and 2002 expungements.
Commonwealth. v. Giulian, 75 MAP 2015
In Giulian, the petitioner had a similar situation as the example above. The Supreme Court of Pennsylvania held Ms. Giulian was eligible for expungement for all of her summary convictions because ten years had passed since her last summary conviction. Accordingly, the Supreme Court reviewed the statutory construction of the actual law and ruled all of the summary convictions should be expunged because the person was arrest free for over five years from the date of her last conviction. The holding means the prosecutor’s argument was ridiculous. Therefore if five years have passed since your last case, you can file a petition to remove all of your summary convictions.
The new expungement law, 9122.1, which allows for an expungement to seal certain convictions for misdemeanors, contains a ten year look back period analogous to the five year look back period contained in the summary offense statute. The holding in Giulian defeats any argument from the Commonwealth regarding multiple offenses. Further, the legislature added a maximum of four sealable cases in 9122.1, anticipating the argument, further evincing a legislative intent to allow for multiple expungements so long as the person is arrest free for the prescribed period.