Trial Engrossment of Amendment A01990 to House Bill 0689 P.N. 1360, Regular Session 2023-2024

A01990

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

689

Session of

2023

INTRODUCED BY HARRIS, DELOZIER, FRANKEL, MADDEN, SCHLOSSBERG,

HILL-EVANS, BULLOCK, KINSEY, KENYATTA, T. DAVIS, GUENST,

ECKER, SOLOMON, SMITH-WADE-EL, HANBIDGE, ORTITAY, JAMES,

McNEILL, TAKAC, M. JONES, HOHENSTEIN, SHUSTERMAN, SANCHEZ,

KRAJEWSKI, DEASY, KAIL, BRENNAN, CONKLIN, KIM, SCOTT, HOWARD,

SCHEMEL, WEBSTER AND McCLINTON, MARCH 24, 2023

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,

MAY 24, 2023

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 expungment, 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:

* * *

"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.

* * *

Section 2. Section 9121(b.2)(2) 9121(b)(1) and (2) and (b.2)

(2) of Title 18 is are amended to read:

§ 9121. General regulations.

* * *

(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

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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

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).

* * *

(b.2) Additional exceptions.--

* * *

(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

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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.

* * *

Section 3. Section 9122.1(a) and (b)(1)(i) and (2)(ii) and

(iii) of Title 18 are amended and the section is amended by

adding subsections to read:

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

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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

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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

A01990 - 6 -

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.

* * *

§ 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

A01990 - 7 -

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

A01990 - 8 -

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) An 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.

(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).

* * *

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

* * *

(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

A01990 - 9 -

imprisonment of two or more years[.]; or

(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

A01990 - 10 -

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.

* * *

Section 4. Section 9122.2(a)(1) and (3) 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

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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.

* * *

(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

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conviction for which a conditional pardon was granted.

* * *

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:

* * *

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

(i) A felony, excluding a qualifying offense.

* * *

(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.

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

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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.

* * *

(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.

* * *

(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.

* * *

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

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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 in 180 days. AS

FOLLOWS:

(1) THE AMENDMENT OR ADDITION OF 18 PA.C.S. §§ 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. 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.

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