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Home My WebLink AboutCP-21-CR-0000036-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-36-2010 V. : : CHARGES: (6) OBSCENE & OTHER : SEXUAL MATERIALS & PERFORMANCES : JORDON A. MICHAELS : OTN: K935626-6 : AFFIANT: DET. LES FREEHLING IN RE: PETITION FOR EXPUNGEMENT PURSUANT TO PA.R.CRIM.P. 790 ORDER OF COURT th AND NOW , this 25 day of March, 2013, upon consideration of the Defendant’s Petition for Expungement Pursuant to Pa.R.Crim.P. 790, the Answer of the Commonwealth in Opposition to the Expungement, hearing on the matter, and IT IS HEREBY ORDERED AND DIRECTED Defendant’s brief, that Defendant’s Petition DENIED. for Expungement Pursuant to Pa.R.Crim.P. 790 is By the Court, _________________________ M. L. Ebert, Jr., J. Matthew Smith, Esquire Office of the District Attorney Tim M. Barrouk, Esquire Attorney for Petitioner COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-36-2010 V. : : CHARGES: (6) OBSCENE & OTHER : SEXUAL MATERIALS & PERFORMANCES : JORDON A. MICHAELS : OTN: K935626-6 : AFFIANT: DET. LES FREEHLING IN RE: PETITION FOR EXPUNGEMENT PURSUANT TO PA.R.CRIM.P. 790 OPINION AND ORDER OF COURT Ebert, J., March 25, 2013 – Procedural History On November 3, 2011, the Commonwealth and Defendant entered into a 1 negotiated plea agreement. The Commonwealth amended the criminal information to include a count of Obscene and Other Sexual Materials, 18 Pa.C.S.A. § 5903(a)(2), a 2 misdemeanor of the first degree. The Defendant pled guilty to the amended single 3 count of Obscene and Other Sexual Materials in full satisfaction of all other charges. The charges dismissed pursuant to the plea agreement were: five counts of 4 Dissemination of Photo/Film Child Sex Acts, five counts of Sexual Abuse of Children – 5 Possession of Child Pornography, and five counts of Criminal Use of Communication 6 Facility. In accordance with the plea agreement, Defendant was sentenced to five 1 In Re: Guilty Plea & Sentencing, November 3, 2011, J. Ebert (hereinafter “Guilty Plea at ___”). 2 Id. at 2 3 Id. at 2-3 4 18 Pa. C.S.A. § 6312(c) 5 18 Pa. C.S.A. § 6312(d) 6 18 Pa. C.S.A. § 7512 1 years supervised probation, to pay the costs of prosecution, a fine of $500, and to have no unsupervised contact with any person under the age of eighteen other than 7 immediate family members. Defendant filed a Petition for Expungement pursuant to Pa.R.Crim,P. 790 on August 13, 2012. The Commonwealth filed an Answer to Defendant’s Petition to Expunge on September 17, 2012. A hearing was ordered and 8 held on December 19, 2012. Discussion The Defendant petitions this Court to expunge his arrest record, arguing that 9 Defendant is prejudiced in securing appropriate employment. Defendant maintains that because the term “in full satisfaction” is vague in determining the actual disposition of the charges not sentenced on, he is entitled to a Wexler hearing where the Commonwealth must show why the arrest record should not be expunged. See Commonwealth v. Wexler, 431 A.2d 877, 880 (Pa. 1981). The Commonwealth argues that as part of a negotiated plea agreement the Defendant is not entitled to expungement. When determining whether expungement is proper the Court must balance the defendant’s right to be free from harm caused by the maintenance of his arrest record against the Commonwealth’s interest in preserving arrest records. Wexler, 431 A.2d at 879. However, in cases where the Commonwealth agrees to dismiss certain charges in exchange for a guilty plea, absent an agreement on expungement, the defendant is not entitled to a Wexler hearing or the expungement of the dismissed charges. 7 Guilty Plea at 7 8 Order of Court, dated September 19, 2012; See also In Re: Motion to Expunge, December 19, 2012, J. Ebert (hereinafter “In Re: Motion to Expunge at __”). 9 In Re: Motion to Expunge at 6-9 2 Commonwealth v. Lutz, 788 A.2d 993, 1000 (Pa. Super. 2001). See also Commonwealth v. V.G., 9 A.3d 222, 225 (Pa. Super. 2010). Negotiated plea agreements are viewed as contracts and there will not be an accurate reflection of the agreement reached if the arrest record is expunged. V.G., 9 A.3d at 225-26. Essentially, the defendant will get more than he bargained for if his arrest record is expunged. Id. The defendant is not entitled to expungement in these situations because the Commonwealth is not admitting that it lacks evidence to convict the defendant, which is very different from when charges are nol prosed. Id. In this matter, it is clear that the Commonwealth and Defendant entered into a 10 negotiated plea agreement. The Commonwealth never stated it lacked evidence to proceed on the original charges and did not nol pros the charges. The Defendant pled to one count “in full satisfaction” of all others, which is consistent with the Commonwealth agreeing to dismiss charges in exchange for a guilty plea. Therefore, because the Commonwealth presumably had evidence to continue against Defendant for all original charges, Defendant is not entitled to a Wexler hearing or the expungement of his arrest record. However, it should be noted that Defendant was provided with the opportunity to give testimony to this Court regarding how his arrest record adversely affected his 11 efforts to secure employment. Even if Defendant was entitled to a Wexler hearing, his Petition for Expungement would still be denied. The Court looks at several factors under the Wexler test for expungement, including: (1) strength of Commonwealth’s case, (2) reasons the Commonwealth gives for wishing to retain the records, (3) 10 Guilty Plea at 5. 11 In Re: Motion to Expunge 3 defendant’s age, (4) criminal history, (5) employment history, (6) length of time that has elapsed between the arrest and the petition to expunge, and (7) the specific adverse consequences the defendant may endure should expunction be denied. Wexler, 431 A.2d at 879. While there was testimony that Defendant suffered adverse consequences in securing employment and has had no prior criminal history, the other factors weigh 12 against him. The Commonwealth found videos and images on the Defendant’s own 13 computer, indicating that there was a strong case against Defendant. The Commonwealth objected to expungement because it never admitted it had insufficient 14 evidence to proceed and Defendant would get more than he bargained for. Defendant is only 23 years old, which is much less than the age contemplated by the statute 15 relating to expungement. Additionally, only four years has elapsed between 2008, when Defendant was charged, and 2012, when the Petition for Expungement was filed. These were very serious charges and not nearly enough time has passed to weigh in favor of expunging Defendant’s arrest record. For all of the above reasons, Defendant’s Petition for Expungement is denied and the following Order will be entered: ORDER OF COURT th AND NOW , this 25 day of March, 2013, upon consideration of the Defendant’s Petition for Expungement Pursuant to Pa.R.Crim.P. 790, the Answer of the 12 In Re: Motion to Expunge. 6-9. Even though there has been some adverse consequences, Defendant has not been completely hindered from obtaining employment. 13 See In Re: Motion to Expunge at 11. While Defendant maintained that he did not have child pornography on his computer, he did not contest the fact that some pornographic images were found on his computer. 14 Commonwealth’s Answer to Defendant’s Petition to Expunge, filed September 17, 2012. 15 See 18 Pa.C.S.A. § 9122(b)(1). An individual may have his criminal history record information expunged when he reaches 70 years of age and has been free from arrest and prosecution for 10 years. 4 Commonwealth in Opposition to the Expungement, hearing on the matter, and Defendant’s brief, IT IS HEREBY ORDERED AND DIRECTED that Defendant’s Petition for DENIED. Expungement Pursuant to Pa.R.Crim.P. 790 is By the Court, _________________________ M. L. Ebert, Jr., J. Matthew Smith, Esquire Office of the District Attorney Tim M. Barrouk, Esquire Attorney for Petitioner 5