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HomeMy WebLinkAboutCP-21-CR-0001216-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JOSEPH BRIAN MAZER : CP-21-CR-1216-2007 MEMORANDUM OPINION AND ORDER OF COURT Masland, J., August 30, 2010:-- Petitioner, Joseph B. Mazer, representing himself, presents the court with two requests for relief stemming from his 2007 arrest for theft and conspiracy to access device fraud. First, Petitioner seeks expungement of the record of his arrest for conspiracy to access device fraud because that charge was ultimately dismissed. Second, Petitioner seeks to have $153.00 of court costs charged against him vacated. The Commonwealth objects to both requests. For the following reasons, Petitioner's request for expungement is denied but his motion to vacate court costs is granted. Petitioner contends the Commonwealth dismissed the access device fraud charge due to its inability to prove a prima facie case against him. As such, Petitioner argues the Commonwealth must bear the burden of showing why the arrest record should not be expunged. See Commonwealth v. Wexler, 431 A.2d 887 (Pa. 1981). The court disagrees. At the evidentiary hearing, it became clear that the access device fraud charge was dismissed as a result of a plea agreement, not due to lack of evidence. Based on the testimony of the court's esteemed colleague, Magisterial District Judge Thomas Placey, the court finds that Petitioner and his codefendant, husband and wife, respectively, each pleaded guilty to one of the CP-21-CR-1216-2007 charges they faced in exchange for the dismissal of the other. Petitioner's wife was permitted to plead guilty to the more serious charge of access device fraud in consideration for the dismissal of that charge against her husband who stood to face significant parole revocation consequences. Such an arrangement clearly amounts to a plea agreement. Under Rule 546, misdemeanor charges may be dismissed by the issuing authority upon a showing of the following: (1) the public interest will not be adversely affected; (2) the attorney for the Commonwealth, or in cases in which there is no attorney for the Commonwealth present, the affiant, consents to the dismissal; (3) satisfaction has been made to the aggrieved person or there is an agreement that satisfaction will be made to the aggrieved person; and (4) there is an agreement as to who shall pay the costs. Pa .R. Crim. P. 546 (emphasis added). A related provision, Rule 586, permits the pretrial dismissal of nonviolent charges based upon the same criteria, with the exception that a Commonwealth attorney must consent to the dismissal; the affiant's consent alone is insufficient. Pa. R. Crim. P. 586. At the evidentiary hearing the Commonwealth objected strenuously to this dismissal, which it believed was done pursuant to Rule 586 without the involvement or approval of a representative from the District Attorney’s Office. The court agrees that such a dismissal would have been contrary to Rule 586. However, the court finds the instant plea agreement was properly resolved under Rule 546, where a Commonwealth attorney's consent is unnecessary. Accordingly, the court declines the Commonwealth's invitation to consider the underlying fairness of the agreement. -2- CP-21-CR-1216-2007 The dismissal of charges resulting from a plea agreement does not entitle a defendant to the expungement of those charges. Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001). Notably, the court may deny such a request without an evidentiary hearing. Id. Accordingly, Petitioner's request to expunge the 1 record of his arrest for conspiracy to access device fraud is denied. Next, Petitioner asks the court to vacate the imposition of $153.00 in court costs charged for constable transportation fees. The Commonwealth objects on the grounds that it would be unfair to relieve Petitioner of his obligation to pay court costs where he has already received significant leniency in this matter and 2 the victim has never received sufficient restitution. Because constable 1 This result notwithstanding, the court notes with approval Petitioner's apparent desire to reform his life and care for his young son following his wife's tragic accident and incapacitation. However, even if the court were to analyze Petitioner's expungement request under the more forgiving Wexler standard, it would still fail. Where Wexler is applicable, the court “must balance the individual's right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth's interest in preserving such records.” Wexler, 431 A.2d at 879. Here, Petitioner is currently incarcerated in a state correctional institution and has a lengthy criminal record involving multiple thefts and burglaries. In these circumstances the expungement of the access device fraud charge would have no more than a de minimis positive effect on Petitioner's lengthy criminal record. The Commonwealth's interest in retaining the record of Petitioner's arrest and plea bargain clearly outweighs the minimal benefit expungement would provide to Petitioner. 2 At the time of the preliminary hearing, defendant’s wife supposedly went to an ATM to get $300.00 for the restitution, but the sum could not be processed at the MDJ level. It now appears that the victim has only received a paltry $40.00. As much as this chagrins the court, it cannot order retroactive restitution on a charge that was dismissed. -3- CP-21-CR-1216-2007 transportation fees do not constitute costs of prosecution, Petitioner's request is granted. In Fordyce v. Clerk of Courts, 869 A.2d 1049 (Pa. Cmwlth. 2005), our Commonwealth Court concluded Sheriffs' transportation costs are not recoverable against a convicted defendant because they do not constitute costs of prosecution. The court can discern no basis to distinguish transportation costs incurred by constables at the District Court level from the same costs generated by Sheriffs during proceedings in the Courts of Common Pleas. Accordingly, Petitioner's request is granted and the improperly imposed constable transportation fees are vacated. ORDER OF COURT AND NOW, this day of August, 2010, Petitioner’s request for IS DENIED expungement .Petitioner’s request to vacate court costs of $153.00 IS GRANTED charged for constable transportation fees . By the Court, Albert H. Masland, J. Jaime Keating, Esquire Assistant District Attorney Joseph Brian Mazer, JP2446, Pro se 1600 Walters Mill Road Somerset, PA 15510 :saa -4- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JOSEPH BRIAN MAZER : CP-21-CR-1216-2007 ORDER OF COURT AND NOW, this day of August, 2010, Petitioner’s request for IS DENIED expungement .Petitioner’s request to vacate court costs of $153.00 IS GRANTED charged for constable transportation fees . By the Court, Albert H. Masland, J. Jaime Keating, Esquire Assistant District Attorney Joseph Brian Mazer, JP2446, Pro se 1600 Walters Mill Road Somerset, PA 15510 :saa