THE COURTS

Title 234—RULES OF
CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 4 ]

Proposed Amendment of Pa.R.Crim.P. 490

[48 Pa.B. 1930]
[Saturday, April 7, 2018]

 The Criminal Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Rule 490 (Procedure for Obtaining Expungement in Summary Cases; Expungement Order) for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded and underlined; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

 Jeffrey M. Wasileski, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.us

 All communications in reference to the proposal should be received by no later than Friday, May 18, 2018. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Criminal Procedural
Rules Committee

BRIAN W. PERRY, 
Chair

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

 (1) Except as provided in Rule 320, an individual who satisfies the requirements of 18 Pa.C.S. § 9122 or 18 Pa.C.S. § 9123(a) for expungement of a summary case may request expungement by filing a petition with the clerk of the courts of the judicial district in which the charges were disposed.

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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.

 This rule was amended in 2018 to clarify that the procedures under this rule are to be used for summary convictions when the defendant is under 18 years of age. This also would include any summary conviction that has also been certified to juvenile court pursuant to Pa.R.J.C.P. 200(3) and 42 Pa.C.S. § 6304.1. In such cases, two expungement petitions would need to be filed: one would be filed pursuant to Pa.R.J.C.P. 170 to expunge the record of the juvenile proceeding and the second would be filed pursuant to Pa.R.Crim.P. 490 to expunge the underlying summary conviction.

 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.

*  *  *  *  *

 Official Note: Adopted September 22, 2010 effective in 90 days; amended November 1, 2016, effective November 14, 2016; amended   , 2018, effective   , 2018.

 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. 5737 (October 9, 2010).

 Final Report explaining the November 1, 2016 amendment regarding the stay of expungement when the Commonwealth has consented and petition and order forms published for comment at 46 Pa.B. 7439 (November 26, 2016).

 Report explaining the proposed amendment regarding expungement of summary offenses when the defendant is under 18 years of age published for comment at 48 Pa.B. 1930 (April 7, 2018).

REPORT

Proposed Amendment of Pa.R.Crim.P. 490

Summary Expungement for Defendants Under the Age of 18

 Recently, the Committee in conjunction with the Juvenile Court Procedural Rules Committee, explored rule changes to address two issues regarding the expungement of summary offenses when the defendant is under 18 years old: (1) expungement under 18 Pa.C.S. § 9123(a); and (2) the expungement of summary convictions and juvenile court records that result from a failure to comply with the sentence on the underlying summary convictions.

 There are two statutes that permit the expungement of summary convictions. The first statute, 18 Pa.C.S. § 9122(b)(3)(i), generally applies without reference to the age of the defendant and requires the defendant to be free from arrest or prosecution for five years. This statute also contains a provision for the expungement of underage drinking convictions when the defendant is 20 years or older, provided the violation occurred when the defendant was at least 18 years old.

 The second statute, 18 Pa.C.S. § 9123(a), applies to ''juvenile records'' and permits the expungement of a conviction for a summary offense if the defendant is 18 years or older and six months have elapsed after satisfying the sentence. The statute also contains a provision for the expungement of underage drinking convictions when the defendant is 18 years or older, provided the violation occurred when the defendant was under 18 years old.

 Currently, Rule 490 (Procedure for Obtaining Expungement in Summary Cases; Expungement Order) cites to Section 9122 and not Section 9123(a). Summary offenses are specifically excluded from the Juvenile Act and Pa.R.J.C.P. 170 (Motion to Expunge or Destroy Records) does not recognize Section 9123(a) as it pertains to summary convictions when the defendant is under 18 years of age.

 The Committees have developed an amendment of Rule 490 to include reference to 18 Pa.C.S. § 9123(a) so that these expungements proceed in accordance with the Criminal Rules. The Committees did not see merit in establishing two different procedures to expunge the same conviction in the MDJ court based on the age of the defendant. A cross-reference to Rule 490 would be added to the Comment to Pa.R.J.C.P. 170.

 The other issue that the Committees examined was what procedures should be used to expunge both the summary conviction and the juvenile record when the conviction is certified pursuant to Pa.R.J.C.P. 200(3) and 42 Pa.C.S. § 6304.1. Pa.R.J.C.P. 200(3) and 42 Pa.C.S. § 6304.1 provide that a delinquency proceeding may be commenced when a juvenile has failed to comply with the sentence arising from a summary conviction. The question was whether a petition pursuant to Rule 490 needed to be filed to expunge the summary conviction and another petition pursuant to Pa.R.J.C.P. 170 needed to be filed to expunge the certification and any subsequent juvenile court record.

 The Committees recognize that requiring an expungement petition in the criminal court for the summary offense and another expungement petition in the juvenile court may be burdensome. However, it was observed that eligibility for expungement of the MDJ record and the juvenile record so differed that one court should not expunge both records.

 For example, a curfew violation may result in a summary conviction and fine. If the minor fails to comply with the sentence (i.e, pay the fine), then the matter may be certified to the juvenile court. A majority of these types of certifications result in an informal adjustment, consent decree, or entry into a diversion program rather than a petition being filed. Consequently, the minor would be entitled to expungement of the juvenile record pursuant to 18 Pa.C.S. § 9123(a)(2) six months after completing the program. However, the underlying summary offense could not be expunged until the defendant was at least 18 years of age. See 18 Pa.C.S. §§ 9123(2.1), (2.2). The minor could be eligible for expungement of the juvenile record before being eligible for expungement of the summary conviction. Accordingly, the Committees reluctantly agreed to a two-petition procedure.

 The Comment to Pa.R.Crim.P. 490 therefore would be revised to inform readers of the dual tracks for the expungement of certified failure to comply cases and the underlying summary offense.

[Pa.B. Doc. No. 18-525. Filed for public inspection April 6, 2018, 9:00 a.m.]

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