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PA Bulletin, Doc. No. 11-551

THE COURTS

Title 234—RULES OF CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 3 ]

Order Amending Rule 320 of the Rules of Criminal Procedure; No. 400 Criminal Procedural Rules Doc.

[41 Pa.B. 1759]
[Saturday, April 2, 2011]

Order

Per Curiam

 And Now, this 14th day of March, 2011, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice and efficient administration, and a Final Report to be published with this Order:

 It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pennsylvania Rule of Criminal Procedure 320 is amended in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective April 1, 2011.

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 3. ACCELERATED REHABILITATIVE DISPOSITION (ARD)

PART B. Court Cases

Rule 320. Expungement Upon Successful Completion of ARD Program.

 (A) When the judge orders the dismissal of the charges against the defendant, the judge also shall [also] order the expungement of the defendant's arrest record, subject to the provisions of paragraph (B). The expungement order shall contain the same information that is required in Rule 490(C) in summary cases and Rule 790(C) in court cases.

 (B) If the attorney for the Commonwealth objects to the automatic expungement, the objections shall be filed with the judge, together with the objections to dismissal, if any, within 30 days after service of a motion for dismissal under Rule 319, and copies of the objections shall be served on the defendant or the defendant's attorney.

 (C) If the objections are filed, the judge shall hold a hearing on the objections, affording all parties an opportunity to be heard.

Comment

 The cases have held that a defendant's arrest record shall be expunged upon successful completion of an ARD program, unless the Commonwealth presents compelling reasons why the arrest record should be retained. See, e.g., Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 ([Pa.] 1981). Cf., Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 ([Pa.] 1981). For processes and limitations with regard to expungement generally, see Section 9122 of the Criminal History Record Information Act, 18 Pa.C.S. § 9122 [(1983)]. See also, Vehicle Code, §§ [543] 1534(b) and [3731(e)(2)] 3807, added by 75 Pa.C.S. §§ 1534(b) and [3731(e)(2)] 3807.

 Official Note: Rule 186 adopted April 10, 1989, effective July 1, 1989; renumbered Rule 320 and amended March 1, 2000, effective April 1, 2001; amended March 14, 2011, effective April 1, 2011.

Committee Explanatory Reports:

 Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).

 Final Report explaining the March 14, 2011 amendments to paragraph (A) adding the cross reference to Rules 490 and 790 published with the Court's Order at 41 Pa.B. 1760 (April 2, 2011).

FINAL REPORT1


Amendments to Pa.R.Crim.P.320
Expungement of ARD Cases

 On March 14, 2011, effective April 1, 2011, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule of Criminal Procedure 320 (Expungement Upon Successful Completion of ARD Program). The amendments clarify that the orders for expungement in Accelerated Rehabilitative Disposition (''ARD'') cases must contain the same contents as expungement orders for summary cases set forth in Rule 490 and for court cases set forth in Rule 790.

I. Background

 The Court on September 22, 2010 adopted new Rules of Criminal Procedure 490 and 790. The new rules establish the procedures for expunging summary and court case records, and include the information that is required to be in the expungement order. At the same time, the Court rescinded Rule 722 as no longer necessary with the adoption of the new rules. Rule 722 had set forth the contents of all expungement orders.

 When the Committee developed the proposal for new Rules 490 and 790, we agreed that the provisions for expungement following completion of ARD should continue to be handled separately under Rule 320. Rule 320 provides, inter alia, ''[w]hen the judge orders the dismissal of the charges against the defendant, the judge shall also order the expungement of the defendant's arrest record.'' The rule does not include a provision concerning the contents of the expungement order.

 Former Rule 722 required that every expungement order include all the information set forth in the rule. The Rule 722 Comment emphasized this requirement stating ''[t]his rule sets forth the information that must be included in every expungement order . . .'' With the rescission of Rule 722 and the specific exclusion of ARD expungement from new Rules 490 and 790, the rules no longer provide what information is to be included in the ARD expungement order. This oversight on the part of the Committee has caused a good deal of confusion for the bench and bar in the short time period since the new rules and the Rule 722 rescission went into effect. It also is causing delays in the completion of the ARD expungements.

 The Committee agreed that the required contents for expungement orders set forth in Rule 490(C) for summary case expungements and in Rule 790(C) for court case expungements also should be required for ARD expungement orders. To accomplish this, references to Rules 490(C) and 790(C) have been added to Rule 320(A). This addition makes it clear that ARD expungement orders must include all the information that is required by Rule 490(C) in summary case ARD expungements and by Rule 790(C) in court case ARD expungements. This change will reduce the confusion being experienced by some common pleas court judges, court administration, the bar, and pro se defendants, and will reduce the delays in completing ARD expungements.

[Pa.B. Doc. No. 11-551. Filed for public inspection April 1, 2011, 9:00 a.m.]

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1  The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.


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