COMMONWEALTH of Pennsylvania, Appellee v. Victoria C. GIULIAN, Appellant.
Supreme Court of Pennsylvania.
Decided July 19, 2016.
Argued April 6, 2016.
141 A.3d 1262
Matthew Dale Janssen, Thomas Ian Plotkin, Pepper Hamilton LLP, Philadelphia, for Juvenile Law Center, et al., Amicus Curiae.
Jason S. Dunkle, JD Law, P.C., State College, for Victoria C. Giulian, Appellant.
Crystal Lynn Hundt, Centre County Dist. Atty‘s Office, Stacy Parks Miller, for Com. of Pa., Appellee.
OPINION
Justice DOUGHERTY.
We consider the statutory requirements for expungement of criminal history record information for summary convictions pursuant to
Appellant Victoria C. Giulian, then twenty years old, was arrested on April 20, 1997, and ultimately pleaded guilty to the summary offenses of public drunkenness,
Appellant has had no arrests since September 27, 1998. On May 8, 2013, appellant filed a petition seeking expungement of these summary convictions from her
(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.
(ii) Expungement under this paragraph shall only be permitted for a conviction of a summary offense.
The Commonwealth did not object to expungement of the withdrawn disorderly conduct charge and the guilty plea conviction for underage drinking, and the record of these charges was expunged. The Commonwealth did oppose expungement respecting the other offenses, however. The Centre County Court of Common Pleas granted the petition with regard to the 1998 criminal mischief conviction, but denied expungement of the records relating to the 1997 public drunkenness and harassment convictions. The court acknowledged appellant was “conviction free for 16 years” after 1998, but determined appellant was not entitled to expungement of the earlier convictions because her 1998 arrest and plea meant she did not remain free of arrest or prosecution for “at least five years following the 1997 convictions” as required by subsection (b)(3)(i). Trial Court Opinion, 7/16/14, slip op. at 4.
Appellant filed an appeal to the Superior Court, which affirmed the trial court in a brief published decision. Commonwealth v. Giulian, 111 A.3d 201 (Pa.Super.2015). The panel recognized penal statutes are to be strictly construed under the rule of lenity, with ambiguities resolved in favor of the defendant. Id. at 204. However, the panel considered the language of Section 9122(b)(3)(i) to be clear and unambiguous and held the language supported the trial court‘s reading of the term “free of arrest or prosecution for five years following the conviction.” Id. The panel interpreted the statutory language as requiring appellant to remain free of arrest or prosecution for ”the” five years ”immediately following her conviction for the 1997 offense[s],” rather than for “any” five-year period following those offenses. Id. (emphases in original). In the panel‘s view, the reading proffered by appellant treated as surplusage the concluding statutory phrase, “following the conviction for that offense.” Id.
Appellant filed a petition for allowance of appeal, and this Court granted review of the following question:
Did the Superior Court commit an error of law in finding that the Petitioner was not statutorily eligible to have her summary convictions expunged pursuant to
18 Pa.C.S.A. § 9122(b)(3) despite the fact that Petitioner has been free of arrest and prosecution for more than sixteen years following the convictions, over ten years longer than the statutory requirement?
Commonwealth v. Giulian, 632 Pa. 640, 122 A.3d 1029 (2015).
Appellant argues she is eligible to have the records of her 1997 summary convictions expunged because she has been free from arrest and prosecution for more than sixteen years following those convictions, over ten years longer than the five-year requirement set forth in Section
In a second textual argument, appellant points to the absence of the definite article “the” to circumscribe the period referenced in Section 9122(b)(3)(i); she argues the Superior Court improperly supplied this limiting language to the statute when it interpreted it as requiring her to remain arrest-free for “the” five years “immediately following” the 1997 convictions. Giulian, 111 A.3d at 204. Appellant further stresses the Legislature‘s use of the present perfect tense—“has been free of arrest“—supports her interpretation that the statute does not refer to any particular five-year period, and that period can occur recently, as opposed to the Superior Court‘s conversion of the language, in the final paragraph of its opinion, to read ”was not free of arrest or prosecution.” Id. (emphasis added). Moreover, appellant argues, the Superior Court‘s concern that her reading renders the final phrase of the statute surplusage is misplaced because the words “following the conviction for that offense” are necessary to establish the possible start date for any five-year waiting period, i.e., the period begins after conviction for the summary offense.
According to appellant, even if Section 9122(b)(3) is ambiguous, it is a penal statute which must ordinarily be strictly construed, see
Finally, appellant argues the General Assembly intended to allow rehabilitated individuals like herself to secure expungement of their minor summary citations, in order to achieve better access to jobs or housing, and so, to the extent there is an ambiguity, this Court should interpret the statute with this particular legislative intent in mind.2 Appellant claims the Superior
Echoing the interpretation of the courts below, the Commonwealth responds that appellant‘s 1997 summary convictions cannot be expunged because she failed to remain free of arrest or prosecution for five years, due to her subsequent 1998 arrest and conviction. The Commonwealth claims the statute is clear and unambiguous in its meaning: “a defendant must be arrest or prosecution free for five years immediately following the conviction for the offense she wishes to expunge.” Appellee‘s Brief at 8. The Commonwealth agrees Section 9122(b)(3) is a penal statute, see id. at 9, but, like the Superior Court below, claims it is free from ambiguity and so the rule of lenity does not mandate a reading in appellant‘s favor. See Giulian, 111 A.3d at 204. The Commonwealth asserts the statute makes plain the Legislature‘s intention that a conviction for a summary offense, no matter how old, can never be expunged if there is another conviction within five years of that first offense; under such circumstances, “the opportunity to expunge the initial summary offense disappears upon a defendant‘s subsequent arrest or prosecution and the focus turns to the new, subsequent offense.” Appellee‘s Brief at 10.
The Commonwealth rejects what it characterizes as appellant‘s “public policy” argument that the statute should be interpreted to give her “a break through expungement.” Id. at 13. Instead, according to the Commonwealth, the humanitarian goals of the Legislature are achieved under the statute because a defendant can “rid[] herself of the stigma associated with a summary offense conviction if she can simply remain arrest-free for five years following that conviction.” Id. at 14. Otherwise, the Commonwealth claims, a defendant receives a “volume discount“—she could “commit a years-long summary conviction crime-spree, end the spree, then apply for expungement” five years after the last offense. Id. at 17.
Finally, the Commonwealth argues expungement is left to the discretion of the trial court, even after both prongs of subsection (b)(3) are met, and while the court was thus within its discretion to expunge the 1998 offense, the Commonwealth posits there was no abuse of discretion in denial of expungement of the 1997 offense, where appellant was not eligible under subsection (b)(3). Id. at 17-19.
The question presented is one of statutory interpretation and is therefore a question of law; our standard of review is de novo, and our scope of review is plenary. Fithian, 961 A.2d at 71 n. 4. We have stated “[j]udicial analysis and evaluation of
Subsection (b)(3)(i) then includes the relevant qualifying language regarding timing: the individual seeking expungement must be “free of arrest or prosecution for five years following the conviction for that offense.”
In matters involving statutory interpretation, the Statutory Construction Act directs courts to ascertain and effectuate the intent of the General Assembly.
The United States Supreme Court also takes a contextual approach in assessing the plain language of statutes and in determining if an ambiguity exists. See generally King v. Burwell, — U.S. —, —, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (“If the statutory language is plain, we must enforce it according to its terms. But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, we must read the words in their context and with a view to their place in
When a statute is ambiguous, we may go beyond the relevant texts and look to other considerations to discern legislative intent. “Where statutory or regulatory language is ambiguous, this Court may resolve the ambiguity by considering, inter alia, the following: the occasion and necessity for the statute or regulation; the circumstances under which it was enacted; the mischief to be remedied; the object to be attained; the former law, if any, including other statutes or regulations upon the same or similar subjects; the consequences of a particular interpretation; and administrative interpretations of such statute.” Freedom Med. Supply, Inc. v. State Farm Fire & Cas. Co., 635 Pa. 86, 131 A.3d 977, 984 (2016), citing
The parties here argue Section 9122(b) is clear and unambiguous and that its plain terms support their respective readings—which are squarely opposed. When the parties read a statute in two different ways and the statutory language is reasonably capable of either construction, the language is ambiguous. Id. Unlike the Commonwealth, we believe this provision is, at a minimum, ambiguous. Appellant‘s textual points concerning the language of the statute are certainly plausible, so much so, in fact, the Superior Court resorted to adding words to the statute in order to dismiss appellant‘s argument. For example, the statute does not include the definite article “the” or the word “immediately” in order to circumscribe the time period referenced in Section 9122(b)(3)(i); the Superior Court itself supplied this limiting language to the statute by concluding a defendant must remain arrest-free for ”the” five years ”immediately following” the 1997 convictions. Giulian, 111 A.3d at 204 (emphasis in original). The Commonwealth likewise interpolates the word “immediately” in insisting the statute lacks ambiguity. This Court has cautioned, however, “although one is admonished to listen attentively to what a statute says[,] one must also listen attentively to what it does not say.” Commonwealth v. Johnson, 611 Pa. 381, 26 A.3d 1078, 1090 (2011), quoting Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 567 Pa. 514, 788 A.2d 955, 962 (2001). Accordingly, we have stressed courts should not add, by interpretation, a requirement not included by the General Assembly. Johnson, 26 A.3d at 1090, citing Commonwealth v. Rieck Investment Corp., 419 Pa. 52, 213 A.2d 277, 282 (1965).
We also credit appellant‘s view the General Assembly‘s use of the present perfect tense “has been free of arrest” supports that the statute does not refer to any particular five-year period; again, it is notable the Superior Court altered the text in narrowing the scope of the provision. See Giulian, 111 A.3d at 204 (“Therefore, as Appellant was not free of arrest or prosecution for the five years following the 1997 offense, we discern no error or abuse of discretion in the trial court‘s order denying her petition to expunge the 1997 offense.“) (emphasis added).
For purposes of decision, we need not dispute that the contrary reading of the
Our determination the statute is ambiguous is further supported by viewing the language in its context as part of the overall statutory scheme. See, e.g.,
framed in discretionary language and carves out an exception where expungement can never be secured. The overall structure of the statute weighs against this narrowing construction.
Other statutory construction factors also weigh in favor of appellant‘s reading. Although the Superior Court affirmed the denial of expungement in this case, the panel nevertheless recognized the purpose of the expungement statute—the occasion and necessity for its enactment, the mischief to be remedied, and the object
Amici persuasively supplement appellant‘s argument in this regard by gathering and explaining current research and statistical information about the specific consequences experienced by individuals like appellant, with low-level offenses on their records, especially in this new era of easy online access to criminal records through inexpensive background checking services. Amicus Curiae Brief at 10, citing, e.g., NAT‘L CENTER FOR STATE COURTS, PRIVACY/PUBLIC ACCESS TO STATE COURTS: STATE LINKS; Jenny Roberts, Expunging America‘s Rap Sheet in the Information Age, WASHINGTON COLLEGE OF LAW RESEARCH PAPER NO. 2015-3 (2015); see id. at 12 (in one survey, 11% of employers reported minor infraction would disqualify candidate from employment; in another study, researchers found existence of criminal record reduced likelihood of callback or job offer by nearly 50%); see id. at 11-18 (collecting information regarding barriers to employ-ment, housing and education created by criminal records). The intended remedial impact of the expungement statute with respect to low-level offenses reveals obvious practical humanitarian objectives, which counsel us to construe the statutory language liberally in favor of appellant. See, e.g., School Dist. of Phila., 117 A.3d at 242.5
Accordingly, in our judgment, appellant‘s construction of the statute is more persuasive. Moreover, the lower courts’ contrary, stricter reading of the statute has yielded an unreasonable result: appellant‘s 1998 conviction has been expunged while the older ones remain intact and, by the lower courts’ reasoning, those 1997 offenses can never be expunged, even if another sixteen, or fifty, arrest-free years elapse. We hold this is not a result the Legislature intended. Instead, we hold appellant is eligible for expungement of the criminal history record of her 1997 harassment and public drunkenness convictions.
Finally, regarding the Commonwealth‘s somewhat tautological argument that the trial court did not abuse its discretion because appellant was ineligible for expungement, we note the trial court did not purport to exercise its discretion; the court held instead appellant was not eligible for expungement as a matter of law pursuant to its reading of the statute.
Reversed and remanded for further proceedings. Jurisdiction relinquished.
Chief Justice SAYLOR and Justices DONOHUE and WECHT join the opinion.
Justice BAER files a concurring opinion which Justice TODD joins.
Justice WECHT files a concurring opinion.
Justice BAER, concurring.
I concur in the result. I agree that Appellant, Victoria Giulian, is not statutorily barred from seeking an expungement of her 1997 conviction under
Like the majority, I find ambiguity in the language of Subsection 9122(b)(3)(i), providing that an individual may petition for expungement of a summary offense when she “has been free of arrest or prosecution for five years following the conviction for that offense.”
First, as a principle of statutory construction, we may add words or phrases in construing a statute only if they are “necessary to the proper interpretation of a statute” and “do not conflict with its obvious purpose and intent, nor in any way affect its scope and operation.”
On the other hand, Appellant‘s suggestion—adding “any“—does not significantly alter or limit the statutory language of Subsection 9122(b)(3)(i), because the statute as written has no limitation on which five-year period would suffice, indicating that any five-year period is acceptable. Thus, adding the word “any” helps to clarify the legislature‘s intent, rather than significantly alter it. Moreover, regardless of whether we apply the penal or remedial
Next, when conducting statutory interpretation, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.”
Third, Appellant rebuts the Commonwealth‘s strongest argument that her interpretation renders “following the conviction for that offense” to be mere surplusage. At first blush, the Commonwealth‘s argument seems plausible: if the General Assembly intended the arrest-free period to be “any” five-year period after conviction, then it would not have had to say “following the conviction,” and instead could have said simply that a petitioner must be “free of arrest for five years.” According to the Commonwealth, adding “following the conviction” indicates the intent that the five-year period must occur immediately following the conviction. However, Appellant posits that the “following the conviction” language is necessary to set the start date of the five-year period. Appellant suggests other reasonable starting points that the General Assembly could have selected instead, such as: 1) “following final release from confinement or supervision,” the starting point used in
Finally, the Commonwealth‘s interpretation is simply unreasonable, as aptly highlighted by Justice Wecht‘s concurring opinion. See Concurring Op. at 227-28, 141 A.3d at 1274 (Wecht, J.). As my colleague observed, the Commonwealth‘s interpretation would allow for an individual to reoffend every five years and one day and be eligible,
For all of these reasons, I find Appellant‘s interpretation much more persuasive than that of the Commonwealth. I point out that the sole issue before us is whether Appellant is eligible to seek expungement for her 1997 conviction. The only facts relevant to whether Appellant is statutorily eligible for expungement is whether she seeks to expunge a summary conviction and whether she has been arrest-free for a five-year period since her conviction for that offense. Any discussion of the general expungement scheme or the factors a trial court should consider when deciding whether to grant an expungement petition is irrelevant to the determination that she is eligible to seek expungement.
To the extent that the majority discusses the penal/remedial rules of construction, it is worth explaining that we need not decide which one applies to Subsection 9122(b)(3)(i) in this case or should be applied in future expungement cases.2 To reiterate briefly, if a statute is penal in nature, the rule of lenity applies so that any ambiguity must be strictly construed
in favor of a defendant.
However, I caution that the rules of construction utilize different language. Although they have similar effects, the rule of lenity uses stronger language, that of strict construction, whereas remedial legislation must be liberally construed, a seemingly lower standard. Here, I conclude that Appellant‘s position is superior even applying the lesser remedial legislation standard, and thereby avoid any suggestion as to which rule applies to future interpretations of expungement statutes.
Justice TODD joins this concurring opinion.
Justice WECHT, concurring.
I join the learned Majority‘s opinion in full. I agree that the operative language of
In construing ambiguous statutory language, “we presume to be erroneous any interpretation that leads to an absurd or unreasonable result.” Freedom Med. Supply, Inc. v. State Farm Fire & Cas. Co., 635 Pa. 86, 131 A.3d 977, 984 (2016);
I note, as well, that the Commonwealth‘s suggested interpretation would countenance an even more plainly unreasonable and absurd result, as follows. The Commonwealth maintains that “a defendant with a subsequent arrest or prosecution within the five years following the initial summary offense conviction may never have the initial summary offense expunged,” but that a summary offense conviction may be expunged if the defendant “can simply remain arrest-free for five years following that conviction.” Appellee‘s Brief at 10, 14. The Majority correctly notes that this interpretation would preclude expungement of the 1997 offenses even if Giulian remains arrest-free for another fifty years. However, over a similar fifty-year period, the Commonwealth‘s interpretation would allow for the expungement of up to ten offenses, provided merely that five years elapsed between each conviction and subsequent arrest. While an individual that was arrested within five years of a summary conviction would have a criminal record forever, another individual would be free to recidivate in perpetuity, reoffending every five years while never being precluded from expungement as a matter of law. Although occurring over a period of time, this is precisely and ironically the sort of “volume discounting” and “expungement windfall” that the Commonwealth argues should be forbidden under the statute. See Id. at 17. These volume discounts and expungement windfalls would accrue liberally for recidivist offenders under the Commonwealth‘s own interpretation.
The Majority‘s analysis of the factors supporting Giulian‘s construction of
ORDER
PER CURIAM.
AND NOW, this 19th day of July 2016, the Order of the Commonwealth Court is AFFIRMED.