THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 4 AND 7 ]
Order Adopting New Rule 791 and Amending Rules 490 and 790 of the Rules of Criminal Procedure; No. 481 Criminal Procedural Rules Doc.
[46 Pa.B. 7439]
[Saturday, November 26, 2016]
Order Per Curiam
And Now, this 9th day of November, 2016, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 45 Pa.B. 5913 (October 3, 2015) and 46 Pa.B. 3637 (July 9, 2016), 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 new Pennsylvania Rule of Criminal Procedure 791 and the amendments to Pennsylvania Rules of Criminal Procedure 490 and 790 are adopted, in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective November 14, 2016.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 4. PROCEDURES IN SUMMARY CASES
PART H. Summary Case Expungement Procedures Rule 490. Procedure for Obtaining Expungement in Summary Cases; Expungement Order.
(A) [Petition for Expungement] PETITION FOR EXPUNGEMENT
* * * * * (3) [A] Unless the attorney for the Commonwealth agrees to waive this requirement, a current copy of the petitioner's Pennsylvania State Police criminal [record] history report shall be attached to the petition. The copy shall be obtained from the Pennsylvania State Police within 60 days before filing the petition. Absent a waiver by the attorney for the Commonwealth, the judge shall not rule upon the petition until the Pennsylvania State Police criminal history report is filed.
(4) A copy of the petition shall be served on the attorney for the Commonwealth concurrently with filing.
(B) [Objections; Hearing] OBJECTIONS; HEARING
* * * * * (4) If the judge grants the petition for expungement, the judge shall enter an order directing expungement.
(a) The order shall contain the information required in paragraph (C).
(b) [The] Except when the attorney for the Commonwealth has filed a consent to the petition pursuant to paragraph (B)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.
* * * * *
Comment This rule, adopted in 2010, provides the procedures for requesting and ordering expungement in summary cases. Any case in which a summary offense is filed with a misdemeanor, felony, or murder of the first, second, or third degree is a court case (see Rule 103). The petition for expungement of the summary offense in such a case would proceed under Rule 790.
See also Rule 320 for the procedures for expungement following the successful completion of an ARD program in a summary case and Rule 790 for court case expungement procedures.
This rule sets forth the only information that is to be included in every expungement petition and order.
Paragraph (A)(3) requires the petitioner to attach a copy of his or her criminal [record] history report to the petition. The attorney for the Commonwealth may waive the requirement that the criminal history report be attached to the petition. The Commonwealth's agreement to the waiver may be made orally or in writing, or averred in the petition.
[A form petition is to be designed and published by the Administrative Office of Pennsylvania Courts in consultation with the Committee as provided in Rule 104.]
A form petition and form order of expungement has been created by the Administrative Office of Pennsylvania Courts, in consultation with the Committee, and is available at the following website: http://www.pacourts.us/forms/for-the-public.
''Petition,'' as used in this rule, is a ''motion'' for purposes of Rules 575, 576, and 577.
The ''reason for expungement'' in paragraph (A)(2)(i) and (C)(1)(i) means, for example, acquittal, arrest or prosecution free for five years following the conviction for that summary offense, or age.
For the procedures for filing and service of petitions, see Rule 576.
For the procedures for filing and service of orders, see Rule 114.
For purposes of this rule, ''criminal justice agency'' includes police departments, county detectives, and other law enforcement agencies. See also 18 Pa.C.S. § 9102.
Concerning standing, see In Re Administrative Order No. 1-MD-2003, [594 Pa. 346,] 936 A.2d 1 (Pa. 2007); Commonwealth v. J.H., [563 Pa. 248,] 759 A.2d 1269 (Pa. 2000).
Official Note: Adopted September 22, 2010 effective in 90 days; amended November 9, 2016, effective November 14, 2016.
Committee Explanatory Reports:
Final Report explaining the September 22, 2010 promulgation of new Rule 490 providing the procedures for expungements in summary cases published with the Court's Order at 40 Pa.B. 5740 (October 9, 2010).
Final Report explaining the November 9, 2016 amendment regarding the stay of expungement when the Commonwealth has consented and petition and order forms published for comment at 46 Pa.B. 7442 (November 26, 2016).
CHAPTER 7. POST-TRIAL PROCEDURES IN COURT CASES
PART C. Court Case Expungement Procedures Rule 790. Procedure for Obtaining Expungement in Court Cases; Expungement Order.
(A) [Petition for Expungement] PETITION FOR EXPUNGEMENT
* * * * * (3) [A] Unless the attorney for the Commonwealth agrees to waive this requirement, a current copy of the petitioner's Pennsylvania State Police criminal [record] history report shall be attached to the petition. The copy shall be obtained from the Pennsylvania State Police within 60 days before filing the petition. Absent a waiver by the attorney for the Commonwealth, the judge shall not rule upon the petition until the Pennsylvania State Police criminal history report is filed.
(4) A copy of the petition shall be served on the attorney for the Commonwealth concurrently with filing.
(B) [Objections; Hearing] OBJECTIONS; HEARING
* * * * * (4) If the judge grants the petition for expungement, the judge shall enter an order directing expungement.
(a) The order shall contain the information required in paragraph (C).
(b) [The] Except when the attorney for the Commonwealth has filed a consent to the petition pursuant to paragraph (B)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.
* * * * *
Comment This rule, adopted in 2010, provides the procedures for requesting and ordering expungement in court cases. Any case in which a summary offense is filed with a misdemeanor, felony, or murder of the first, second, or third degree is a court case (see Rule 103). The petition for expungement of the summary offense in such a case would proceed under this rule.
See also Rule 320 for the procedures for expungement following the successful completion of an ARD program in a court case, Rule 490 for summary case expungement procedures, and 35 P.S. § 780-119 for expungement procedures under [The] the Controlled Substance, Drug, Device, and Cosmetic Act.
This rule sets forth the only information that must be included in every expungement petition and order.
Paragraph (A)(3) requires the petitioner to attach a copy of his or her criminal [record] history report to the petition. The attorney for the Commonwealth may waive the requirement that the criminal history report be attached to the petition. The Commonwealth's agreement to the waiver may be made orally or in writing, or averred in the petition.
An order for expungement under [The] the Controlled Substance, Drug, Device, and Cosmetic Act, 35 P.S. § 780-119, also must include the information in paragraph (C).
[A form petition is to be designed and published by the Administrative Office of Pennsylvania Courts in consultation with the Committee as provided in Rule 104.]
A form petition and form order of expungement has been created by the Administrative Office of Pennsylvania Courts, in consultation with the Committee, and is available at the following website: http://www.pacourts.us/forms/for-the-public.
''Petition'' as used in this rule is a ''motion'' for purposes of Rules 575, 576, and 577.
The ''reason for expungement'' in paragraph (A)(2)(i) and (C)(1)(i) means, for example, acquittal or age.
For the procedures for filing and service of petitions, see Rule 576.
For the procedures for filing and service of orders, see Rule 114.
When a summons instead of an arrest warrant is issued pursuant to Rule 519, the date of the summons constitutes the ''date of arrest'' for purposes of paragraph (A)(2)(f).
For purposes of this rule, ''criminal justice agency'' includes police departments, county detectives, and other law enforcement agencies. See also 18 Pa.C.S. § 9102.
Concerning standing, see In Re Administrative Order No. 1-MD-2003, [594 Pa. 346,] 936 A.2d 1 (Pa. 2007); Commonwealth v. J.H., [563 Pa. 248,] 759 A.2d 1269 (Pa. 2000).
Official Note: Adopted September 22, 2010 effective in 90 days; amended November 9, 2016, effective November 14, 2016.
Committee Explanatory Reports:
Final Report explaining the September 22, 2010 promulgation of new Rule 790 providing the procedures for expungements in court cases published with the Court's Order at 40 Pa.B. 5740 (October 9, 2010).
Final Report explaining the November 9, 2016 amendment regarding the stay of expungement when the Commonwealth has consented and petition and order forms published with the Court's Order at 46 Pa.B. 7442 (November 26, 2016).
(Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 791. Procedure for Obtaining Order for Limited Access in Court Cases; Order for Limited Access.
(A) PETITION FOR ORDER FOR LIMITED ACCESS
(1) Pursuant to 18 Pa.C.S. § 9122.1, an individual who satisfies the statutory requirements for obtaining an order for limited access may request an order that limits the dissemination of his or her criminal history record information by filing a petition with the clerk of the courts of the judicial district in which the charges were disposed.
(2) The petition shall set forth:
(a) the petitioner's name and any aliases that the petitioner has used, address, date of birth, and social security number;
(b) the name and address of the judge of the court of common pleas, magisterial district judge, or Philadelphia Municipal Court judge who accepted the guilty plea or heard the case;
(c) the name and mailing address of the affiant as shown on the complaint, if available;
(d) the court of common pleas docket number, magisterial district court docket number, or the Philadelphia Municipal Court docket number, whichever applies;
(e) the offense tracking number (OTN);
(f) the date on the complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;
(g) the specific charges, as they appear on the charging document, to be subject to limited access;
(h) the disposition and, if the sentence includes a fine, costs, or restitution, whether the amount due has been paid;
(i) the reason(s) for the order for limited access;
(j) a statement that the case qualifies for a limited access order and none of the exceptions under 18 Pa.C.S. § 9122.1(b) are applicable; and
(k) a verification by the petitioner that facts set forth in the petition are true and correct to the best of the petitioner's personal knowledge or information and belief. The verification may be by a sworn affidavit or by an unsworn written statement that the facts are verified subject to the penalties for unsworn falsification to authorities under the Crimes Code § 4904, 18 Pa.C.S. § 4904.
Additional information shall not be required by local rule or practice.
(3) Unless the attorney for the Commonwealth agrees to waive this requirement, a current copy of the petitioner's Pennsylvania State Police criminal history report shall be attached to the petition. The copy shall be obtained from the Pennsylvania State Police within 60 days before filing the petition. Absent a waiver by the attorney for the Commonwealth, the court shall not rule upon the petition until the Pennsylvania State Police criminal history report is filed.
(4) A copy of the petition shall be served on the attorney for the Commonwealth concurrently with filing.
(B) OBJECTIONS; HEARING
(1) Within 30 days after service of the petition, the attorney for the Commonwealth shall file a consent or objection to the petition or take no action. The attorney for the Commonwealth's consent or objection shall be filed with the clerk of courts, and copies shall be served on the petitioner's attorney, or the petitioner if unrepresented.
(2) Upon receipt of the attorney for the Commonwealth's response, or no later than 14 days after the expiration of the 30-day period in paragraph (B)(1), the judge of the court of common pleas shall grant or deny the petition or shall schedule a hearing.
(3) At the hearing, if any, the parties shall be afforded an opportunity to be heard. Following the hearing, the judge promptly shall enter an order granting or denying the petition.
(4) If the judge grants the petition for limited access, the judge shall enter an order directing that the petitioner's criminal record history information that is subject to the limited access order shall not be disseminated to an individual, a noncriminal justice agency, or an internet website and that dissemination of the petitioner's criminal record history be limited only to a criminal justice agency or government agency as provided in 18 Pa.C.S. § 9122.1.
(a) The order shall contain the information required in paragraph (C).
(b) Except when the attorney for the Commonwealth has filed a consent to the petition pursuant to paragraph (B)(1), the order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the order for limited access is stayed pending the disposition of the appeal and further order of court.
(5) If the judge denies the petition for an order of limited access, the judge shall enter an order denying the petition and stating the reasons for the denial.
(6) If the judge grants the petition for an order of limited access, the petition and order are subject to limited access.
(C) ORDER
(1) Every order for limited access shall include:
(a) the petitioner's name and any aliases that the petitioner has used, address, date of birth, and social security number;
(b) the name and address of the judge of the court of common pleas, magisterial district judge, or Philadelphia Municipal Court judge who accepted the guilty plea or heard the case;
(c) the name and mailing address of the affiant as shown on the complaint, if available;
(d) the court of common pleas docket number, magisterial district court docket number, or the Philadelphia Municipal Court docket number, whichever applies;
(e) the offense tracking number (OTN);
(f) the date on the complaint, or the date of arrest, and, if available, the criminal justice agency that made the arrest;
(g) the specific charges, as they appear on the charging document, to be subject to limited access;
(h) the disposition and, if the sentence includes a fine, costs, or restitution, whether the amount due has been paid;
(i) the reason(s) for the order for limited access;
(j) a statement that the case qualifies for a limited access order and none of the exceptions under 18 Pa.C.S. § 9122.1(b) are applicable; and
(k) the criminal justice agencies upon which certified copies of the order shall be served.
Additional information shall not be required by local rule or practice.
(2) The clerk of courts shall serve a certified copy of the Order to each criminal justice agency identified in the court's Order.
Comment Section 9122.1 of the Criminal Code provides for an order limiting dissemination of a record of a criminal conviction for a misdemeanor of the second degree, a misdemeanor of the third degree, or an ungraded misdemeanor which carries a maximum penalty of no more than two years only to a criminal justice agency or government agency. This rule, adopted in 2016, provides the procedures for requesting and ordering an order for limited access as provided in the statute.
This rule sets forth the only information that must be included in every petition and order for limited access.
The petition must be filed with the clerk of courts of the judicial district in which the charges that are the subject of the petition were disposed. The petition must be decided by a judge of the court of common pleas, even if the charges that are the subject of the petition were disposed by a magisterial district judge or Philadelphia Municipal Court judge.
Paragraph (A)(3) requires the petitioner to attach a copy of his or her criminal history report to the petition. The attorney for the Commonwealth may waive the requirement that the criminal history report be attached to the petition. The Commonwealth's agreement to the waiver may be made orally or in writing, or averred in the petition.
A form petition and form order for limited access has been created by the Administrative Office of Pennsylvania Courts, in consultation with the Committee, and is available at the following website: http://www.pacourts.us/forms/for-the-public.
''Petition'' as used in this rule is a ''motion'' for purposes of Rules 575, 576, and 577.
The ''reason for the order for limited access'' in paragraph (A)(2)(i) and (C)(1)(i) means, for example, the defendant's freedom from arrest or prosecution for 10 years.
For the procedures for filing and service of petitions, see Rule 576.
For the procedures for filing and service of orders, see Rule 114.
When a summons instead of an arrest warrant is issued pursuant to Rule 519, the date of the summons constitutes the ''date of arrest'' for purposes of paragraph (A)(2)(f).
For purposes of this rule, ''criminal justice agency'' includes police departments, county detectives, and other law enforcement agencies. See also 18 Pa.C.S. § 9102. For the definition of ''government agency,'' see 18 Pa.C.S. § 9121(b.1) and (b.2).
Nothing in this rule is intended to alter procedures regarding expungement. See Rule 320 for the procedures for expungement following the successful completion of an ARD program in a court case, Rule 490 for summary case expungement procedures, Rule 790 for court case expungement, and 35 P.S. § 780-119 for expungement procedures under the Controlled Substance, Drug, Device, and Cosmetic Act.
Concerning standing, see In Re Administrative Order No. 1-MD-2003, 936 A.2d 1 (Pa. 2007); Commonwealth v. J.H., 759 A.2d 1269 (Pa. 2000).
Official Note: Adopted November 9, 2016, effective November 14, 2016.
Committee Explanatory Reports:
Final Report explaining new Rule 791 providing the procedures for orders for limited access in court cases published with the Court's Order at 46 Pa.B. 7442 (November 26, 2016).
FINAL REPORT1
Adoption of new Pa.R.Crim.P. 791
Amendments to Pa.Rs.Crim.P. 490 and 790
Contents of Expungement Petitions and Orders; Procedure for Limited Access Orders On November 9, 2016, effective November 14, 2016, upon the recommendation of the Criminal Procedural Rules Committee, the Court adopted new Rule 791 (Procedure for Obtaining Order for Limited Access in Court Cases; Order for Limited Access) to provide procedures for the petition and order for limited access as provided in Act 5 of 2016, and amended Rules 490 (Procedure for Obtaining Expungement in Summary Cases; Expungement Order) and 790 (Procedure For Obtaining Expungement In Court Cases; Expungement Order) to: (1) permit the Commonwealth to waive the requirement that a petitioner's Pennsylvania State Police criminal history record be attached to the petition; (2) eliminate the 30-day stay on the expungement order during which time the Commonwealth may appeal in a case in which the Commonwealth has consented to the expungement; and (3) add a cross-reference to the Comments of both rules to the webpage where the AOPC forms for expungement petitions and orders are found.
Expungement Rules 490 and 790
Beginning in early 2015, the Committee had considered suggested amendments to the procedures contained in the expungement rules, Rules 490 and 790. Some of these suggestions related to complaints that it was taking lengthy amounts of time for the Pennsylvania State Police (PSP) to provide criminal history reports required for the expungement petition. It was suggested that this requirement be eliminated or modified so that the PSP criminal history could be replaced with an alternative such as the AOPC web docket sheets. The Committee concluded that the PSP report represents the best available criminal history record information and that alternatives were either incomplete or inapt for purposes of determining criminal history. Therefore, the Committee concluded that this requirement should be retained in the expungement rules.
However, the Committee determined that there are jurisdictions in which very large numbers of expungement petitions are being filed and, as a result, protocols have been developed between petitioners and district attorney's offices to speed the process of expungement in a large majority of cases. In these jurisdictions, the district attorney's office will agree to waive the requirement for a PSP report because those offices have the means of alternative confirmation of a petitioner's criminal history. The Committee agreed that practices such as these ensure speedy resolution of meritorious petitions and should not be impeded. Therefore, Rules 490 and 790 have been amended to provide that the requirement for the attachment of the PSP report may be waived by the attorney for the Commonwealth. The Comment has been revised to state that the waiver may be made orally, in writing, or averred in the petition in order to permit flexibility in this waiver practice.
During the discussion of this point, it was reported that some judges refuse to order the PSP report as part of the petition even in those cases where the attorney for the Commonwealth has not waived the requirement. To clarify that the general rules requires a PSP report, language has been added to paragraph (A)(3) of Rules 490 and 790 stating, ''Absent a waiver by the Attorney for the Commonwealth, the court shall not rule upon the petition until the Pennsylvania State Police criminal history report is filed.''
Another suggestion received by the Committee was to eliminate, in those cases in which the Commonwealth has filed a consent to the expungement, the 30-day stay on the expungement order provided in Rules 490(B)(4)(b) and 790(B)(4)(b) during which time the Commonwealth may appeal. The consent provisions in Rules 490(B)(1) and 790(B(1) recognize that the Commonwealth may join in the desire to expedite an expungement. The Committee concluded that it is logical that the stay provision be curtailed where the Commonwealth has consented and a provision has been added to both rules precluding the stay in cases in which the Commonwealth has consented to the expungement.
Another suggestion the Committee considered was to require a single standard form for expungement petitions and orders to enable courts and agencies more uniformly process these requests. Rules 490 and 790 require specific contents for the petitions and orders but do not mandate a specific form. The Committee ultimately rejected the idea of requiring one particular form. There was a concern that a petition could be rejected solely on the basis of not being the approved form while still containing the other information necessary for an expungement. The Committee noted that the AOPC already had developed form petitions and orders for expungements under Rules 490 and 790 that are publically available on the UJS website. The Comments to Rules 490 and 790 already mention the AOPC forms. The Committee concluded that adding a cross-reference to the webpage where the AOPC forms for expungement petitions and orders are found would be helpful to encourage use of the standard forms. This direct cross-reference has been added to the Comments of both Rules 490 and 790.
New Rule 791 Regarding Limited Access Orders
While the Committee was conducting its review of expungement procedures, the Legislature enacted Act 5 of 2016.2 The Act originated from a proposal for an expansion of the current expungement statute to cover second and third degree misdemeanors but was subsequently modified to introduce a new concept, a petition for limited access. The Act added new Section 9122.1 to the Crimes Code, 18 Pa.C.S. § 9122.1, that provides that a qualified defendant may petition for an order that would allow only certain entities access to criminal history record information, primarily criminal justice or other government agencies. The offenses in question are, with certain exceptions, misdemeanors of the second and third degree and ungraded offenses carrying a maximum penalty of no more than two years. The Act also includes an amendment to Section 9122 of the Crimes Code, 18 Pa.C.S. § 9122, that provides that a court or the Administrative Office of Pennsylvania Courts may not disseminate criminal case information that is subject to ''a court order for limited access as provided in Section 9122.1 (relating to order for limited access).''
Because the Act requires a petition to be filed with the court and subsequent order to be produced, there was a need for procedural rules implementing the Act. Given the history of the Act, the Committee concluded that the concept of limiting access to a conviction record is closely related to expungement and that the procedures should be similar. The procedures for obtaining a limited access order contained in new Rule 791 are derived from the court case expungement procedures in Rule 790. These new procedures are in a separate rule rather than an addition to the expungement rule since the nature and purpose of this procedure is different from expungement and placing it in the same rule as expungement procedures might have led to confusion. The new rule immediately follows the court case expungement procedures.
In terms of information required in the petition and order, the same concern, that of correctly identifying the criminal record, is applicable to limited access procedures as it is for expungement. Therefore, the required contents of the petition, contained in paragraph (A), and the contents of the order, contained in paragraph (C), are virtually identical to those required in Rule 790 for expungement petitions and orders.
Paragraph (A)(3) of Rule 791 contains the requirement that the Pennsylvania State Police criminal history report shall be attached to the petition. As discussed above, this is currently required by the expungement rules and the Committee concluded that, as in expungement procedures, the PSP report is the best means of verifying the defendant's criminal history. The Committee also concluded that the practice of waiving this requirement as is done in certain jurisdictions for expungements should be applied to limited access petitions as well. The provision regarding waiver of the PSP report have been incorporated into Rule 791(A)(3).
Paragraph (B) describes the procedures to be followed once the petition is filed. Section 9122.1(c) provides that the court notify the district attorney of the petition within 10 days of filing and the district attorney then has 30 days to respond. The current procedure for court case expungement in Rule 790 requires that the petition be served on the prosecution concurrent with filing. The Committee believes that simultaneous service is a more efficient procedure and one that would help in the prosecution reaching a quicker decision on whether to oppose the petition or not. This does not constitute a conflict between the Act and the rules, but rather is an additional procedural step being added to make the process more efficient and ensure proper and timely notice to the prosecution.
The Act allows 30 days for the prosecution to respond to a petition for limited access. Paragraph (B)(1) incorporates this time-limit for the prosecution's response and requires any response to be filed no later than 30 days following service of the petition.
The Act requires a petition to be filed requesting the issuance of the order, similar to expungement procedures. Section 9122.1 describes the effect of the order as permitting the criminal record to be disseminated ''only to a criminal justice agency or a governmental agency. . . .'' However, the language that is added to Section 9121, which directly states the applicability of the statute to the courts and AOPC, uses the terminology that they ''may not disseminate to an individual, a noncriminal justice agency or an internet website any information'' relating to information that is subject to a limited access order. In the paragraph (B)(4), the terminology in both statutory selections is used to describe the order granting the petition so that there is no confusion concerning the order's effects.
Rule 790 provides for a 30-day stay on any granted petition to provide time for the prosecution to appeal. A similar provision is included in Rule 791(B)(4)(b) when the petition for limited access is granted. However, this stay would be waived when the prosecution agrees to the petition. This is similar to the above provision for the expungement rules.
[Pa.B. Doc. No. 16-2032. Filed for public inspection November 23, 2016, 9:00 a.m.] _______
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.
2 Act 5 of 2016 (originally SB 166 of 2015) was signed into law by the Governor on February 16, 2016. Act 5 will become effective on November 14, 2016.
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