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HomeMy WebLinkAboutCP-21-CR-0000055-2004 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MICHAEL L. HEBERLIG : : CP-21-CR-0055-2004 IN RE: DEFENDANT’S PETITION TO EXPUNGE CRIMINAL RECORD OPINION AND ORDER OF THE COURT Masland, J., June 15, 2012:-- Before this Court is a petition to expunge the criminal record of Michael Laverne Heberlig. After a hearing and briefing by both the Commonwealth and the Petitioner, this Court now denies the Petition to Expunge. BACKGROUND In the fall of 2003, Petitioner, Michael L. Heberlig, was charged with criminal homicide, murder in the first degree, murder in the second degree, murder in the third degree, robbery, possession of an instrument of crime, three counts of burglary, three counts of theft by unlawful taking, three counts of receiving stolen property, three counts of criminal trespass, and one count of carrying a firearm without a license. (Criminal Docket CP-21-CR-0055-2004, at 4). On December 27, 2004, the Petitioner entered a guilty plea to murder in the third degree in full satisfaction of all charges on his docket. (Brief in Support of Expungement at 1 (hereinafter “Br. Supp. Expungement”)). The Petitioner was immediately sentenced to 20 to 40 years imprisonment. (Br. Supp. Expungement at 1). The Petitioner further agreed to pay restitution to the victims of the burglary and theft crimes with which he had been charged but which had been quashed in satisfaction of the plea agreement. (Br. Supp. Expungement at 1). The Petitioner now asks this Court to expunge all charges except the one to which he pled guilty. CP-21-CR-0055-2004 Procedurally, Petitioner filed his Petition to Expunge Criminal Record on May 19, 2010. This Court denied that Petition without giving the Petitioner an evidentiary hearing. In denying the Petition, this Court relied on the rationale of Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. Ct. 2001). The Petitioner appealed the order to our Superior Court which vacated and remanded the matter requiring that the Petitioner be given an evidentiary hearing. Our Superior Court ruled that the record did not support the application of Lutz and further guided this Court in the application of the balancing test enunciated by our Supreme Court in Commonwealth v. Wexler. On December 12, 2011, this Court held a hearing on the Petition. Finally, the Court requested and considered briefs from both the Petitioner and the Commonwealth on the matter. EXPUNGEMENT There is a long-standing right in this Commonwealth to petition for expungement of a criminal arrest record. Carlacci v. Mazaleski, 798 A.2d 186, 188 (Pa. 2002). The decision to grant or deny a petition to expunge rests with the sound discretion of the trial court. Commonwealth v. Waughtel, 999 A.2d 623, 624-25 (Pa. Super. Ct. 2010). When an individual has been convicted of the offenses charged, expungement of criminal history records may be granted only under very limited circumstances. Hunt v. Pennsylvania State Police, 983 A.2d 627, 633 (Pa. 2009). However, when a petitioner has been tried and acquitted of the offenses charged, our Supreme Court has held that the petitioner is “automatically entitled to the expungement of his arrest record.” Commonwealth v. D.M., 695 A.2d 770, 772-73 (Pa. 1997). Yet, when a prosecution has been terminated without conviction or acquittal, the trial court must “balance the individual’s right to be free from the harm attendant to maintenance of the arrest record -2- CP-21-CR-0055-2004 against the Commonwealth’s interest in preserving such records.” Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981). To aid in the balancing test for expungement our Supreme Court has adopted the following non-exhaustive list of factors to consider: [1] the strength of the Commonwealth’s case against the petitioner, [2] the reasons the commonwealth gives for wishing to retain the records, [3] the petitioner’s age, 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. Commonwealth v. Moto, 23 A.3d 989, 993 (Pa. 2011). In applying the balancing test and considering the above factors, the court must analyze the particular, specific facts of the case before it. Id. at 993-94. The mere assertion by the Commonwealth of a general interest in maintaining accurate records of those accused of a crime does not outweigh an individual’s specific, substantial interest in clearing his record. Id. at 994. APPLICATION OF FACTORS WEXLER The first factor is the strength of the Commonwealth’s case against the Defendant. In the case at hand, a plea agreement was reached less than a month before trial. (Memorandum of Law In Re: Defendant’s Petition For Expungement, at 4 (hereinafter “Mem. Law”)). Significantly, that trial date had been continued four times by the Petitioner and the plea agreement was reached only twelve days after a pretrial conference. (Mem. Law at 4). These facts, when viewed in light of the facts proffered at the time of the plea, tend to demonstrate that the Commonwealth was prepared to -3- CP-21-CR-0055-2004 present a formidable case against the Petitioner. The Commonwealth further contends that the Petitioner’s agreement to pay restitution for the burglaries and thefts demonstrates that the Commonwealth had sufficient evidence to prove those crimes. (Mem. Law at 4). However, the Petitioner argues that the record is not clear as to his reasons for paying restitution to the victims of the burglaries and thefts. (Br. Supp. Expungement at 2). While the Petitioner may be technically correct, when considering the circumstances as a whole, common sense indicates that the Commonwealth had a strong case prepared on all charges and insisted on restitution for offenses that it could have proven beyond a reasonable doubt. The second factor weighs the persuasive value of the Commonwealth’s reasons for retaining the records. In the case at hand, the Commonwealth contends that the records must be kept to preserve an accurate reflection of the plea agreement. (Mem. Law at 2). That agreement specifically states “the Commonwealth will allow the defendant to plead to Murder in the Third Degree instead of seeking the death penalty or a conviction of Murder in the First or Second Degree.” (Transcript of Proceedings at 2). Further, this Court in its colloquy with the Petitioner stated, That, in addition to the disposition on that case, that plea will satisfy the other charges against you on the information which is a count of robbery, a felony in the first degree; a count of possessing instruments of crime, a misdemeanor of the first degree; three counts of burglary, a felony in the first degree; three counts of theft, each a felony in the second degree; three counts of receiving stolen property, each a felony in the second degree; three counts of criminal trespass, each a felony in the second degree. (Transcript of Proceedings at 7). -4- CP-21-CR-0055-2004 Therefore, to expunge those charges specifically mentioned would be to remove essential information about the plea bargain. The Commonwealth argues, and this court concurs, that because the guilty plea includes a confession to robbery the Commonwealth has an interest in maintaining that record as well. (Mem. Law at 3). Moreover, the plea agreement includes provisions for Petitioner to make restitution to the victims of the thefts and burglaries. (Mem. Law at 3). If these charges were expunged, the agreement to pay restitution to the victims of these crimes would appear arbitrary indeed. In sum, the Commonwealth’s reasons for maintaining the record are (1) to maintain an accurate reflection of the plea bargain and (2) to preserve the record of the dropped robbery charge to which the Petitioner admitted. We find these reasons to be legitimate and convincing. The third factor focuses on Petitioner’s age, criminal record, and employment history. Petitioner states that he is a 41-year-old father of two daughters and that he will not be eligible for parole until 2023, at which time he will be 54 years old. (Br. Supp. Expungement, Ex. A at 8). With respect to his age, neither Wexler nor its progeny indicate any rationale for finding middle age to be a basis for expungement. Petitioner further states that he has no prior convictions or arrests and that he has always worked hard to provide for his family. (Br. Supp. Expungement, Ex. A at 8). Yet, Petitioner’s own confession reveals that the murder for which he is currently sentenced arose from previous drug-related debt and activities. (Transcript of Proceedings at 3). An “employment history” such as that does not militate in favor of expungement. The fourth factor is the length of time between the arrest and the petition to expunge. In the case at hand, Petitioner was charged on October 28, 2003. Therefore, -5- CP-21-CR-0055-2004 nearly nine years have passed since Petitioner has been charged; however, this is less than half of the Petitioner’s minimum sentence, and does not persuade us to tip the scales in his favor. Further, we believe the passage of time is only a significant factor when the person seeking expungement has several years of model citizenship outside of prison. Perhaps, if Petitioner could point to nine years on the street without further infractions, coupled with steady employment or some other indication of reform, that could be significant. In this case, it is unconvincing. The fifth factor is the specific adverse consequences the Petitioner might endure absent expungement. The Petitioner does not make any specific allegations as to the hardships he might endure by the maintenance of the record. The Commonwealth also notes that it is unable to hypothesize a situation where the Petitioner will be harmed by the denial of the Petition. (Mem. Law at 5). Likewise, we are not persuaded that any additional hardship exists for the subject charges vis-à-visPetitioner’s plea to murder in the third degree. Finally, Petitioner contends that he is entitled to expungement by way of his plea agreement and the terms used therein. Without crossing swords with Petitioner on the minutia of Black’s Law Dictionary, suffice it to say we disagree. Absent an agreement to expunge, the Petitioner stands to receive more than he bargained for in the plea agreement if the dismissed charges are expunged. Commonwealth v. Lutz, 788 A.2d 993, 1001 (Pa. Super. Ct. 2001). Therefore, upon careful consideration of the factors as well as the specific facts of this case, we find that the Commonwealth’s interest in maintaining the record -6- CP-21-CR-0055-2004 outweighs the competing interest of the Petitioner in his expungement. Accordingly, the Petition is denied. ORDER OF COURT AND NOW, this ________ day of June, 2012, following a hearing on December 12, 2011 and after consideration of the briefs thereon, Michael Heberlig’s Petition to IS DENIED. Expunge Criminal Record, By the Court, _______________________ Albert H. Masland, J. -7- CP-21-CR-0055-2004 Joshua M. Yohe, Esquire Office of the District Attorney Michael L. Heberlig, GB-3167 1600 Walters Mill Road Somerset, PA 15510 -8- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MICHAEL L. HEBERLIG : : CP-21-CR-0055-2004 ORDER OF COURT AND NOW, this ________ day of June, 2012, following a hearing on December 12, 2011 and after consideration of the briefs thereon, Michael Heberlig’s Petition to IS DENIED. Expunge Criminal Record, By the Court, _______________________ Albert H. Masland, J. Joshua M. Yohe, Esquire Office of the District Attorney Michael L. Heberlig, GB-3167 1600 Walters Mill Road Somerset, PA 15510