Pennsylvania Act 2023-36 — CRIMES CODE (18 PA.C.S.) - GENERAL REGULATIONS, EXPUNGEMENT, PETITION FOR LIMITED ACCESS, CLEAN SLATE LIMITED ACCESS, EXCEPTIONS, EFFECTS OF EXPUNGED RECORDS AND RECORDS SUBJECT TO LIMITED ACCESS AND EMPLOYER IMMUNITY FROM LIABILITY

Act text

Session of 2023

No. 2023-36

HB 689

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, in criminal history record information, further providing for definitions, for general regulations, for expungement, for petition for limited access, for clean slate limited access, for exceptions, for effects of expunged records and records subject to limited access and for employer immunity from liability.

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

Section 1. Section 9102 of Title 18 of the Pennsylvania Consolidated Statutes is amended by adding a definition to read:

§ 9102. Definitions.

The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:

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"Qualifying offense." A n offense under section 13 of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or an attempt, conspiracy or solicitation to commit an offense under section 13 of The Controlled Substance, Drug, Device and Cosmetic Act, unless a minimum sentence of 30 months or more of imprisonment or a maximum sentence of 60 months or more of imprisonment was imposed on the offense.

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Section 2. Section 9121(b) and (b.2)(2) of Title 18 are amended to read:

§ 9121. General regulations.

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(b) Dissemination to noncriminal justice agencies and individuals.--Criminal history record information shall be disseminated by [a State or local police department] the Pennsylvania State Police to any individual or noncriminal justice agency only upon request. Other criminal justice agencies may disseminate criminal history record information to any individual or noncriminal justice agency only as they deem necessary to carry out their law enforcement functions as otherwise allowed by this chapter. The following apply:

(1) A fee may be charged by [a State or local police department] the Pennsylvania State Police for each request for criminal history record information by an individual or noncriminal justice agency, except that no fee shall be charged to an individual who makes the request in order to apply to become a volunteer with an affiliate of Big Brothers of America or Big Sisters of America or with a rape crisis center or domestic violence program.

(2) Except as provided for in subsections (b.1) and (b.2), before [a State or local police department] the Pennsylvania State Police disseminates criminal history record information to an individual or noncriminal justice agency, it shall extract from the record the following:

(i) All notations of arrests, indictments or other information relating to the initiation of criminal proceedings where:

(A) three years have elapsed from the date of arrest;

(B) no disposition is indicated in the record; and

(C) nothing in the record indicates that proceedings seeking conviction remain pending.

(ii) All information relating to a conviction and the arrest, indictment or other information leading thereto, which is the subject of a court order for limited access as provided in section 9122.1 (relating to petition for limited access).

(iii) All information relating to a conviction or nonconviction final disposition and the arrest, indictment or other information leading to the arrest or indictment which is subject to a court order for limited access as provided for in section 9122.2 (relating to clean slate limited access).

(3) A court or the Administrative Office of Pennsylvania Courts may not disseminate to an individual, a noncriminal justice agency or an Internet website any criminal history record information relating to a charge which is the subject of a court order for limited access as provided in section 9122.1 or 9122.2. Nothing in this paragraph shall permit a county clerk of courts or any other official to refuse access to criminal history record information related to convictions that have not been afforded limited access solely because one or more charges arising out of the same conduct or criminal episode have been afforded limited access, as provided in sections 9122.1 or 9122.2 or nolle prossed, withdrawn or dismissed.

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(b.2) Additional exceptions.--

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(2) Subsection (b)(2) shall not apply:

(i) To the verification of information provided by an applicant if Federal law, including rules and regulations promulgated by a self-regulatory organization that has been created under Federal law, requires the consideration of an applicant's criminal history for purposes of employment.

(ii) To the verification of information provided to the Supreme Court, or an entity of the Supreme Court, in its capacity to govern the practice, procedure and conduct of all courts, the admission to the bar, the practice of law, the administration of all courts and supervision of all officers of the judicial branch.

(iii) To the verification of information provided by a candidate for public office concerning eligibility under section 7 of Article II of the Constitution of Pennsylvania.

(iv) To the Department of Human Services for verification of information as required by law.

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Section 3. Sections 9122(a) and 9122.1(a) and (b)(1)(i) and (2)(ii) and (iii) of Title 18 are amended and the sections are amended by adding subsections to read:

§ 9122. Expungement.

(a) Specific proceedings.--Criminal history record information in a specific criminal proceeding shall be expunged [in a specific criminal proceeding] when:

(1) no disposition has been received or, upon request for criminal history record information, no disposition has been recorded in the repository within 18 months after the date of arrest and the court of proper jurisdiction certifies to the director of the repository that no disposition is available and no action is pending. Expungement shall not occur until the certification from the court is received and the director of the repository authorizes such expungement;

(2) a court order requires that such nonconviction data be expunged;

(2.1) a person has been granted an unconditional pardon for an offense in accordance with law;

(3) a person 21 years of age or older who has been convicted of a violation of section 6308 (relating to purchase, consumption, possession or transportation of liquor or malt or brewed beverages), which occurred on or after the day the person attained 18 years of age, petitions the court of common pleas in the county where the conviction occurred seeking expungement and the person has satisfied all terms and conditions of the sentence imposed for the violation, including any suspension of operating privileges imposed pursuant to section 6310.4 (relating to restriction of operating privileges). Upon review of the petition, the court shall order the expungement of all criminal history record information and all administrative records of the Department of Transportation relating to said conviction; or

(4) a judicial determination has been made that a person is acquitted of an offense, if the person has been acquitted of all charges based on the same conduct or arising from the same criminal episode following a trial and a verdict of not guilty. This paragraph shall not apply to a partial acquittal. A judicial determination under this paragraph may only be made after the following:

(i) The court provides notice in writing to the person and to the Commonwealth that the person's criminal history record information will be automatically expunged pursuant to this section.

(ii) Upon receipt of the notice under subparagraph (i), the Commonwealth shall have 60 days to object to the automatic expungement on the basis that the person has not been acquitted of all charges relating to the same conduct, arising from the same criminal episode or otherwise relating to a partial acquittal.

(iii) Upon the filing of an objection, the court shall conduct a hearing to determine whether expungement of the acquittal relates to the same conduct, arises from the same criminal episode or otherwise relates to a partial acquittal. The hearing may be waived by agreement of both parties and the court.

(iv) Following the hearing, or if no objection has been filed or the hearing has been waived, the court shall order that the person's criminal history record information be automatically expunged unless the court determines the expungement relates to the same conduct, arises from the same criminal episode or otherwise relates to a partial acquittal. Expungement shall occur no later than 12 months from the date of acquittal.

(a.1) Automatic expungement pursuant to pardon.--

(1) On a quarterly basis, the Board of Pardons shall transmit a notice of the record of any conviction eligible for expungement under subsection (a)(2.1) to the Administrative Office of Pennsylvania Courts.

(2) On a quarterly basis, upon receipt of the notice under paragraph (1), the Administrative Office of Pennsylvania Courts shall transmit the record of any conviction eligible for expungement under subsection (a)(2.1) to the court of common pleas in the jurisdiction where the conviction occurred.

(3) Upon receipt of the notice under paragraph (2) and confirmation that the criteria under subsection (a)(2.1) has been met, the court shall order that the person's criminal history record information be expunged and forward notice to the central repository in accordance with subsection (d). The Board of Pardons shall provide pardon information to the Administrative Office of Pennsylvania Courts in a format specified by the Administrative Office of Pennsylvania Courts as necessary for proper identification of the case for which a pardon has been granted.

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§ 9122.1. Petition for limited access.

(a) General rule.--Subject to the exceptions in subsection (b) and notwithstanding any other provision of this chapter, upon petition of a person who has been free from conviction for a period of [10] seven years for an offense punishable by one or more years in prison and has completed payment of all court-ordered restitution and the fee previously authorized to carry out the limited access and clean slate limited access provisions, the court of common pleas in the jurisdiction where a conviction occurred may enter an order that criminal history record information maintained by a criminal justice agency pertaining to a qualifying misdemeanor or an ungraded offense which carries a maximum penalty of no more than five years be disseminated only to a criminal justice agency or as provided in section 9121(b.1) and (b.2) (relating to general regulations). A court may not enter an order under this subsection unless the person who filed the petition, upon payment of all court-ordered restitution, also paid the fee previously authorized to carry out the limited access and clean slate limited access provisions.

(a.1) Additional criteria.--Upon petition of a person who has been free from conviction for a period of 10 years for an offense punishable by one or more years in prison and has completed payment of all court-ordered restitution and the fee previously authorized to carry out the limited access and clean slate limited access provisions, the court of common pleas in the jurisdiction where a conviction occurred may enter an order that criminal history record information maintained by a criminal justice agency pertaining to a qualifying felony under this section be disseminated only to a criminal justice agency or as provided in section 9121(b.1) and (b.2). A court may not enter an order under this subsection unless the person who filed the petition, upon payment of all court-ordered restitution, also paid the fee previously authorized to carry out the limited access and clean slate limited access provisions. As used in this subsection, a qualifying felony is any of the following or an attempt, conspiracy or solicitation to commit any of the following, excluding felonies of the first and second degrees:

(1) An offense under section 3304 (relating to criminal mischief).

(2) An offense under section 3503 (relating to criminal trespass).

(3) An offense under Chapter 39 (relating to theft and related offenses).

(4) An offense under Chapter 41 (relating to forgery and fraudulent practices).

(5) An offense under section 481 of the act of June 13, 1967 (P.L.31, No.21), known as the Human Services Code.

(6) A qualifying offense.

(b) Exceptions.--An order for limited access under this section shall not be granted for any of the following:

(1) A conviction for an offense punishable by more than two years in prison which is any of the following or an attempt, conspiracy or solicitation to commit any of the following:

(i) An offense under Article B of Part II (relating to offenses involving danger to the person). This paragraph shall not apply to a misdemeanor offense under section 2706 (relating to terroristic threats).

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(2) An individual who meets any of the following:

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(ii) Has been convicted within the previous [20] 15 years of:

(A) a felony or an offense punishable by imprisonment of seven or more years involving:

(I) an offense under Article B of Part II;

(II) an offense under Article D of Part II;

(III) an offense under Chapter 61; or

(IV) an offense specified in 42 Pa.C.S. §§ 9799.14 and 9799.55; [or]

(B) four or more offenses punishable by imprisonment of two or more years[.] ; or

(C) any of the following offenses:

(I) An offense under section 3127 (relating to indecent exposure).

(II) An offense under section 3129 (relating to sexual intercourse with animal).

(III) An offense under section 4915.1 (relating to failure to comply with registration requirements) or 4915.2 (relating to failure to comply with 42 Pa.C.S. Ch. 97 Subch. I registration requirements).

(IV) An offense under section 5122 (relating to weapons or implements for escape).

(V) An offense under section 5510 (relating to abuse of corpse).

(VI) An offense under section 5515 (relating to prohibiting of paramilitary training).

(iii) [Has, within the previous 15 years, been convicted of:

(A) two or more offenses punishable by more than two years in prison; or

(B) any of the following:

(I) An offense under section 3127 (relating to indecent exposure).

(II) An offense under section 3129 (relating to sexual intercourse with animal).

(III) An offense under section 4915.1 (relating to failure to comply with registration requirements) or 4915.2 (relating to failure to comply with 42 Pa.C.S. Ch. 97 Subch. I registration requirements).

(IV) An offense under section 5122 (relating to weapons or implements for escape).

(V) An offense under section 5510 (relating to abuse of corpse).

(VI) An offense under section 5515 (relating to prohibiting of paramilitary training).] Has, within the previous 10 years, been convicted of two or more offenses punishable by more than two years in prison.

(b.1) Consolidation.--For the purpose of this section, the conviction of two or more offenses charged in separate counts that are consolidated under one docket number and share the same offense tracking number shall be deemed to be one conviction.

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Section 4. Section 9122.2(a)(1), (3) and (4) of Title 18 are amended and the subsection is amended by adding a paragraph to read:

§ 9122.2. Clean slate limited access.

(a) General rule.--The following shall be subject to limited access:

(1) Subject to the exceptions under section 9122.3 (relating to exceptions) or if a court has vacated an order for limited access under section 9122.4 (relating to order to vacate order for limited access), criminal history record information pertaining to a conviction of a misdemeanor of the second degree, a misdemeanor of the third degree or a misdemeanor offense punishable by imprisonment of no more than two years if a person has been free for [10] seven years from conviction for any offense punishable by imprisonment of one or more years and if payment of all court-ordered restitution has occurred. Upon payment of all court-ordered restitution, the person whose criminal history record information is subject to limited access under this paragraph shall also pay the fee previously authorized to carry out the limited access and clean slate limited access provisions.

(1.1) Subject to the exceptions under section 9122.3 or if a court has vacated an order for limited access under section 9122.4, criminal history record information pertaining to a conviction of a qualifying offense if a person has been free for 10 years from conviction for any offense punishable by imprisonment of one or more years and if payment of all court-ordered restitution has occurred. Upon payment of all court-ordered restitution, the person whose criminal history record information is subject to limited access under this paragraph shall also pay the fee previously authorized to carry out the limited access and clean slate limited access provisions.

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(3) Criminal history record information pertaining to a conviction for a summary offense when [10] five years have elapsed since entry of the judgment of conviction and payment of all court-ordered restitution has occurred. Upon payment of all court-ordered restitution, the person whose criminal history record information is subject to limited access under this paragraph shall also pay the fee previously authorized to carry out the limited access and clean slate limited access provisions.

(4) Criminal history record information pertaining to a conviction for which a conditional pardon was granted.

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Section 5. Section 9122.3(a)(2)(i), (b) and (c) of Title 18 are amended and the section is amended by adding a subsection to read:

§ 9122.3. Exceptions.

(a) Limited access not applicable.--Limited access to records under section 9122.2(a)(1) (relating to clean slate limited access) shall not be granted for any of the following:

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(2) An individual who at any time has been convicted of:

(i) A felony , excluding a qualifying offense .

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(a.1) Consolidation.--For the purpose of this section, the conviction of two or more offenses that are charged in separate counts, are consolidated under one docket number and share the same offense tracking number shall be deemed to be one conviction, except that the docket may not be deemed one conviction if it contains more than two felony convictions.

(b) Limited access to same case.--Limited access under this section shall not apply to an otherwise qualifying conviction if a conviction for an offense punishable by imprisonment of five or more years or an offense enumerated in subsection (a) arose out of the same case. This subsection shall not apply to a qualifying offense.

(c) Filing.--Nothing in this section shall preclude the filing of a petition for limited access under section 9122.1 (relating to petition for limited access) if limited access is available under [that] this section. An offense eligible for clean slate limited access under this section shall also be eligible for petition for limited access under section 9122.1.

Section 6. Section 9122.5 of Title 18 is amended by adding subsections to read:

§ 9122.5. Effects of expunged records and records subject to limited access.

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(a.1) Use of information.--Except if required by Federal law, criminal history record information that has been expunged or provided limited access may not be used by any individual or noncriminal justice agency for employment, housing or school matriculation purposes.

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(c.1) Use for eligibility for public office.--Notwithstanding any other provision of this chapter, a record subject to limited access under section 9122.1 or 9122.2 shall remain a part of the individual's criminal history record information and shall be self-disclosed for any relevant purpose required by section 7 of Article II of the Constitution of Pennsylvania.

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Section 7. Section 9122.6 of Title 18 is amended to read:

§ 9122.6. Employer immunity from liability.

(a) General rule.-- An employer who employs or otherwise engages an individual whose criminal history record has been expunged or to which limited access has been applied under section 9122.1 (relating to petition for limited access) or 9122.2 (relating to clean slate limited access) shall be immune from liability for any claim arising out of the misconduct of the individual, if the misconduct relates to the portion of the criminal history record that has been expunged or provided limited access.

(b) Voluntary disclosure.--An employer to whom an individual voluntarily discloses the individual's criminal history record information shall be immune from liability for any claim arising under section 9122.5(a.1) (relating to effects of expunged records and records subject to limited access) related to the employer's otherwise lawful use or consideration of the criminal history record information in connection with any employment decision.

Section 8. This act shall take effect as follows:

(1) The amendment or addition of 18 Pa.C.S. §§ 9122(a) and (a.1), 9122.2(a)(1), (1.1) and (3) and 9122.3(a)(2)(i), (a.1), (b) and (c) shall take effect in 180 days.

(2) This section shall take effect immediately.

(3) The remainder of this act shall take effect in 60 days.

APPROVED--The 14th day of December, A.D. 2023.

JOSH SHAPIRO