Superior Court Reads Statute Strictly To Deny Expungement

Filed under: Criminal Law by Contributor @ March 2, 2015

In Commonwealth v. Giulian, 2015 WL 751570, the Pennsylvania Superior Court affirmed a decision by the trial court denying Giulian’s petition for expungement, reading the relevant statute as forbidding expungement where there is a second conviction occurring within a five-year period of the conviction sought to be expunged.

An Expungement is a motion that is filed with the Court requesting that court and law enforcement records of past criminal charges be purged from their databases. Successful expungement clears a person’s record, which can lead to better employment prospects, the ability to be bonded, the ability to legally obtain a firearm, and in some cases the ability to avoid subsequent offender penalties.

In 1997, Guilian pled guilty to the summary offenses of underage drinking, harassment, and public drunkenness.  Only one year later, Guilian similarly pled guilty to criminal mischief, another summary offense.  In 2013, Giulian petitioned the trial court to expunge the records underlying both convictions.  The District Attorney objected that the second offense was ineligible for expungement under 18 Pa.C.S. § 9122(b)(3)(i), which reads in pertinent part: 

(b) Generally.—Criminal history record information may be expunged when:

* * *

(3)(i) An individual who is the subject of the information petitions the court for the expungement of a summary offense and has been free of arrest or prosecution for five years following the conviction for that offense.


The question the Superior Court panel had to consider was whether the five-year period following the conviction could be any five-year period, or whether the relevant time requirement of a summary offense conviction must immediately follow the prior offense in order for that offense to be eligible for expungement.

Applying canons of statutory construction, the Court had no difficulty in concluding that, in drafting the statute, the legislature meant the five-year period immediately following the offense. The Court reasoned that had the legislature intended anything different, it would have easily been able to add the word “any.”  This was not an ambiguous statute.  Therefore, because the 1998 conviction fell within the five-year period, the 1997 convictions were ineligible for expungement.  Still, the 1998 conviction, a separate offense, was eligible because Guilian avoided another conviction after 1998.

A point not addressed in this case is how the legislature can deny expungements to anyone who was “arrested” but not convicted. As the court reads to every jury that is empaneled in Pennsylvania, a mere arrest is not evidence that someone committed a crime. If the person arrested proves a case of mistaken identity why should he be denied expungement. But this is a battle for another day, as it was not at issue in the case before the court…

To speak to a Fairlie & Lippy attorney about how to expunge the records pertaining to your past criminal case, contact us today for a free consultation.   The following link provides information about whether you may be eligible for an expungement.



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