Wexler factors in Pennsylvania

2025Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981) (citation omitted).2 The court should evaluate all the Wexler factors in cases terminated without a conviction.

2025Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981) (citation omitted).2 The court should evaluate all the Wexler factors in cases terminated without a conviction.

2009We are also guided by the decision in Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa.Super.2005), wherein the court stated that "where the Commonwealth has dropped the charges against a petitioner or otherwise has failed to carry its burden of proof beyond a reasonable doubt, the Commonwealth must bear the burden of showing why an arrest record should not be expunged." Moreover, the A.M.R. case extensively discussed each of the Wexler factors, specifically, directing that all of the factors must be considered.

2009We are also guided by the decision in Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa.Super.2005), wherein the court stated that "where the Commonwealth has dropped the charges against a petitioner or otherwise has failed to carry its burden of proof beyond a reasonable doubt, the Commonwealth must bear the burden of showing why an arrest record should not be expunged." Moreover, the A.M.R. case extensively discussed each of the Wexler factors, specifically, directing that all of the factors must be considered.

2019See Lutz, 788 A.2d at 999-1000 (explaining that Commonwealth's decision to drop charges pursuant to a plea agreement carries no implicit admission that proof is lacking); see also Hanna, 964 A.2d at 926-927 . -6- J-S73035-18 Appellant no doubt presents a compelling case for expungement, particularly if the Wexler factors were to be applied.

2019See Lutz, 788 A.2d at 999-1000 (explaining that Commonwealth's decision to drop charges pursuant to a plea agreement carries no implicit admission that proof is lacking); see also Hanna, 964 A.2d at 926-927 . -6- J-S73035-18 Appellant no doubt presents a compelling case for expungement, particularly if the Wexler factors were to be applied.

2025Importantly, in general terms, we held that when the Commonwealth admits that it is unable to bear its burden of proof beyond a reasonable doubt at trial, then “the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.” Moto, 23 A.3d at 993-94 (citations omitted). - 13 - J-A14044-25 The Wexler test, however, is not applied in the situation where the charges at issue in an expungement petition were nolle prossed or withdrawn as part of a plea agreement: When the defendant pleads guilty and the Commonwealth agrees to dismiss charges as part of the plea agr

2025Importantly, in general terms, we held that when the Commonwealth admits that it is unable to bear its burden of proof beyond a reasonable doubt at trial, then “the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.” Moto, 23 A.3d at 993-94 (citations omitted). - 13 - J-A14044-25 The Wexler test, however, is not applied in the situation where the charges at issue in an expungement petition were nolle prossed or withdrawn as part of a plea agreement: When the defendant pleads guilty and the Commonwealth agrees to dismiss charges as part of the plea agr

2025Importantly, in general terms, we held that when the Commonwealth admits that it is unable to bear its burden of proof beyond a reasonable doubt at trial, then “the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.” Moto, 23 A.3d at 993-94 (citations omitted). - 13 - J-A14044-25 The Wexler test, however, is not applied in the situation where the charges at issue in an expungement petition were nolle prossed or withdrawn as part of a plea agreement: When the defendant pleads guilty and the Commonwealth agrees to dismiss charges as part of the plea agr

2025Importantly, in general terms, we held that when the Commonwealth admits that it is unable to bear its burden of proof beyond a reasonable doubt at trial, then “the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.” Moto, 23 A.3d at 993-94 (citations omitted). - 13 - J-A14044-25 The Wexler test, however, is not applied in the situation where the charges at issue in an expungement petition were nolle prossed or withdrawn as part of a plea agreement: When the defendant pleads guilty and the Commonwealth agrees to dismiss charges as part of the plea agr

2014The cases do not, however, require the trial court to forgo consideration of the Wexler factors when the Commonwealth initially fails to provide sufficient, inal record.3 Rather, as our Supreme Court stated in D.M., supra [a]ll the factors listed in Wexler, and similar additional considerations, should be evaluated in expunction cases which are terminated without conviction for reasons such as nolle prosequi Id., 695 A.2d at 773 (emphasis supplied).

2014The cases do not, however, require the trial court to forgo consideration of the Wexler factors when the Commonwealth initially fails to provide sufficient, inal record.3 Rather, as our Supreme Court stated in D.M., supra [a]ll the factors listed in Wexler, and similar additional considerations, should be evaluated in expunction cases which are terminated without conviction for reasons such as nolle prosequi Id., 695 A.2d at 773 (emphasis supplied).

2015We further noted that in its brief, the Commonwealth had agreed that Appellant was entitled to a Wexler hearing as to the charges nolle prossed on January 6, 1998, however, we stated that pursuant to Commonwealth v. V.G., 9 A.3d 222, 225-26 (Pa. Super. 2010), Appellant was not entitled to a Wexler hearing as to the charges nolle prossed as part of the plea agreement entered on April 23, 1998.

2015We further noted that in its brief, the Commonwealth had agreed that Appellant was entitled to a Wexler hearing as to the charges nolle prossed on January 6, 1998, however, we stated that pursuant to Commonwealth v. V.G., 9 A.3d 222, 225-26 (Pa. Super. 2010), Appellant was not entitled to a Wexler hearing as to the charges nolle prossed as part of the plea agreement entered on April 23, 1998.

2021Cf. Commonwealth v. Maxwell, 737 A.2d 1243, 1245 (Pa. Super. 1999). - 10 - J-A12020-21 In his second issue, Garanin claims that the trial court erred insofar as it determined that Garanin stood to gain more than he bargained for if the court permitted expungement of his arrest records.

2021Cf. Commonwealth v. Maxwell, 737 A.2d 1243, 1245 (Pa. Super. 1999). - 10 - J-A12020-21 In his second issue, Garanin claims that the trial court erred insofar as it determined that Garanin stood to gain more than he bargained for if the court permitted expungement of his arrest records.

2010See Waughtel, supra. When the defendant pleads guilty and the Commonwealth agrees to dismiss charges as part of the plea agreement, a defendant is normally not entitled to ex-pungement of the dropped charges under the Wexler factors.

2010See Waughtel, supra. When the defendant pleads guilty and the Commonwealth agrees to dismiss charges as part of the plea agreement, a defendant is normally not entitled to ex-pungement of the dropped charges under the Wexler factors.

2009See, e.g., Commonwealth v. Ragan, 439 Pa.Super. 337 , 653 A.2d 1286, 1288 (1995) (remanding matter to trial court for preparation of supplemental opinion detailing its decision and findings on a weight of the evidence claim).

2009See, e.g., Commonwealth v. Ragan, 439 Pa.Super. 337 , 653 A.2d 1286, 1288 (1995) (remanding matter to trial court for preparation of supplemental opinion detailing its decision and findings on a weight of the evidence claim).

2021Accordingly, I respectfully dissent.2 ____________________________________________ 2 While not central to my dissent, I fully agree with the concurrence in Hanna, in which Judge Klein explained why distinguishing a nolle prosequi and a dismissal of charges is inconsistent with binding precedent, as well as “the real world of a criminal courtroom[.]” 964 A.2d at 929 (Klein, J., concurring) (discussing In re Pflaum, 451 A.2d 1038 (Pa. Super. 1982); Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997); Commonwealth v. Rodland, 871 A.2d 216 (Pa. Super. 2005); and Commonwealth v. A.M.R., 887 A.2d 1266 (Pa

2014See Commonwealth v. Rodland, 871 A.2d 216, 221 (Pa. Super. 2005) (holding that Wexler test applied to determine whether ____________________________________________ 6 We also find that our disposition necessarily includes the two robbery charges that were changed.

2016See Drummond, supra at 1114 (affirming the denial of expungement where the statute of limitations had not yet run and the lower court relied on this factor in its Wexler analysis).

2016See Drummond, supra at 1114 (affirming the denial of expungement where the statute of limitations had not yet run and the lower court relied on this factor in its Wexler analysis).

2014Id. at 316 . ____________________________________________ 7 The panel characterized the trial court’s decision as “imposing a ‘volume penalty based on the sheer length of [the defendant’s] arrest record and on speculation that he may re-offend in prison or in Philadelphia County.’” Wallace, supra, 97 A.3d at 315 . -5- J-S68016-13 On appeal, the Supreme Court first determined this Court’s “conclusion that the trial court failed to consider Wexler factors lacks support in the record.” Id. at 318 .

2014Id. at 316 . ____________________________________________ 7 The panel characterized the trial court’s decision as “imposing a ‘volume penalty based on the sheer length of [the defendant’s] arrest record and on speculation that he may re-offend in prison or in Philadelphia County.’” Wallace, supra, 97 A.3d at 315 . -5- J-S68016-13 On appeal, the Supreme Court first determined this Court’s “conclusion that the trial court failed to consider Wexler factors lacks support in the record.” Id. at 318 .

2025See Trial Court Opinion, 1/10/25, at 4-5. 4 Amicus additionally asserts that Giulian, supra at 1271 , states that a court should consider the Wexler factors in determining whether to expunge convictions.

2025See Trial Court Opinion, 1/10/25, at 4-5. 4 Amicus additionally asserts that Giulian, supra at 1271 , states that a court should consider the Wexler factors in determining whether to expunge convictions.

2025See, e.g., Adams, 317 A.3d at 645-46 (reviewing the Wexler factors and concluding that trial court abused its discretion in denying expungement because the ____________________________________________ 2 In Wexler, the court determined that the first two factors—the strength of the case against the petitioner and the reasons given for maintaining the record—weighed in favor of granting expungement and, thus, only considered those two factors in determining that the lower court abused its discretion in denying expungement. 431 A.2d at 880-81 . -4- J-A01009-25 Commonwealth had provided only polic

2025See, e.g., Adams, 317 A.3d at 645-46 (reviewing the Wexler factors and concluding that trial court abused its discretion in denying expungement because the ____________________________________________ 2 In Wexler, the court determined that the first two factors—the strength of the case against the petitioner and the reasons given for maintaining the record—weighed in favor of granting expungement and, thus, only considered those two factors in determining that the lower court abused its discretion in denying expungement. 431 A.2d at 880-81 . -4- J-A01009-25 Commonwealth had provided only polic

2025To suggest that the plea court was limited to only considering the oral arguments made by the Commonwealth concerning the Wexler test, Appellant refers us to In re L.J., 79 A.3d 1073, 1080 (Pa. 2013), a case in which our Supreme Court held that the appellate scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing at issue.

2025See L.J., 79 A.3d at 1087 .

2023See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When briefing the various issues that have been preserved, it is an appellant’s duty to present arguments that are ____________________________________________ 1 Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981) (setting forth a non-exhaustive list of factors for the court’s consideration on review of an adult expungement petition as follows: (1) the strength of the Commonwealth’s case against the petitioner; (2) the reasons the Commonwealth gives for wishing to retain the records; (3) the petitioner’s age, criminal record, an

2019As noted by the Court in Charnik, a Wexler hearing is reserved for those petitions for expungement which are “based on records that existed where the PFA process was not completed and therefore without the safeguards of due process.” Charnik, supra at 1220 (emphasis added).

2019As noted by the Court in Charnik, a Wexler hearing is reserved for those petitions for expungement which are “based on records that existed where the PFA process was not completed and therefore without the safeguards of due process.” Charnik, supra at 1220 (emphasis added).

2016See, e.g., Moto, 23 A.3d at 1002 (Saylor, J., dissenting, joined by Castille, C.J., and Orie Melvin, J.) (“[T]here is a colorable argument that the General Assembly intended to codify, rather than displace, this common law [expungement] scheme when it enacted Section 9122(a)(2) of the [Criminal History Record Information Act].”). [J-49-2016] - 8 Roethlein v. Portnoff Law Assocs, Ltd., 81 A.3d 816, 822 (Pa. 2013), citing Mishoe v. Erie Ins.

2016See, e.g., Moto, 23 A.3d at 1002 (Saylor, J., dissenting, joined by Castille, C.J., and Orie Melvin, J.) (“[T]here is a colorable argument that the General Assembly intended to codify, rather than displace, this common law [expungement] scheme when it enacted Section 9122(a)(2) of the [Criminal History Record Information Act].”). [J-49-2016] - 8 Roethlein v. Portnoff Law Assocs, Ltd., 81 A.3d 816, 822 (Pa. 2013), citing Mishoe v. Erie Ins.

2014Smith contends that the arrest record causes harm as the United States District Court used it as a factor to depart from -6- J-S29009-14 the sentencing guidelines in his child pornography conviction and that harm difficulties and hardships that may result from an arrest on record including Doe v. Zappala, 987 A.2d 190, 194 (Pa. Cmwlth. 2009) (citing Commonwealth v. Butler n expungement affords an individual some protection, but cannot entirely protect him from the Butler, 672 A.2d at 809 (citation omitted). a more severe sentence on his child pornography conviction was a result of his further

2014Smith contends that the arrest record causes harm as the United States District Court used it as a factor to depart from -6- J-S29009-14 the sentencing guidelines in his child pornography conviction and that harm difficulties and hardships that may result from an arrest on record including Doe v. Zappala, 987 A.2d 190, 194 (Pa. Cmwlth. 2009) (citing Commonwealth v. Butler n expungement affords an individual some protection, but cannot entirely protect him from the Butler, 672 A.2d at 809 (citation omitted). a more severe sentence on his child pornography conviction was a result of his further