Life, Liberty, and Pursuit of Happiness Not Enough to Expunge Conviction

“It’s been over 30 years. It would be nice to put this behind me.” That is what John Romeo was hoping to do when he filed a petition for expungement of his 32-year-old criminal trespass conviction. The Montgomery County Court of Common Pleas denied his motion. The Pennsylvania Superior Court affirmed the denial holding that there is no due process right to mandate an expungement inquiry.

Romeo is a 61-year-old who pled guilty to third degree felony criminal trespass and first degree misdemeanor prohibited offensive weapons 32-years ago. Romeo, through his attorney, filed a petition for expungement of the criminal trespass charge.

In Pennsylvania, there is no absolute right to an expungement of a criminal conviction, but Romeo’s attorney premised his argument on Constitutional due process to allow him to “fully exercise his right to life, liberty and the pursuit of happiness.”

Any judicial analysis and evaluation of a petition to expunge depends upon the manner of disposition of the charges against a petitioner. An individual who has been convicted of the offense charged may only be granted an expungement of his criminal record under very limited circumstances. If an individual is tried and acquitted of the offense, then expungement of the arrest record must be granted upon request. If a prosecution has been terminated without conviction or acquittal (i.e., a nolle prose of the charges, or successful completion of “ARD”) the court is required to “balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such record.”

While Romeo conceded that he had no opportunity for relief under the statute, he brought a constitutional challenge to the Superior Court positing that the same due process rights requiring performance of the balancing test where neither conviction nor acquittal were obtained applied to his guilty plea.

Although Romeo argued by analogy that “just as constitutional interpretation continues to evolve on issues relating to fundamental liberty interests … so too should it evolve to allow expungement of conviction records through the same process applicable to non conviction records” the Superior Court thought otherwise.

The Superior Court has previously held that there is a fundamental due process right for an accused to have an arrest record expunged, but the panel of judges Romeo was before declined to find that those same due process rights extend to an individual who was actually convicted of a crime “because the conviction itself is based upon a hearing in which the accused was adjudged guilty beyond a reasonable doubt, or upon a plea of guilty.”

Although the court expressed “sympathetic understanding of the enduring challenges confronting one determined to live a post-conviction life of accomplishment and contribution” it nonetheless discerned no due process based authority to mandate an expungement inquiry requiring a balancing test.

With the new changes to the Pennsylvania expungement law, it is important to talk to an attorney if you or someone you know may be eligible for a record expungement.

Read Commonwealth v. Romeo in its entirety here.