Mark F. Walmer

Limited Access Filing – Record Sealing

Limited Access Filing in Pennsylvania

On November 14, 2016 Act 5 went into effect which allows multiple misdemeanor charges that are more than 10 years old to be ‘sealed’ so that employers cannot find them, and the job applicant need not disclose them. This is called Limited Access Filing because a Petition is Filed to seek to Limit Access to the records, but most people have been calling it ‘Record Sealing’.

What can be sealed?

M2s and M3s and Ms (but not Simple Assault M2)
up to three misdemeanors

What makes you ineligible?

Simple Assault (M2)
Any M1 or Felony conviction
Four or more Misdemeanor Offenses
Any offense requiring registration as a sex offender
Intimidation or retaliation against a witness/victim
Impersonating a public official
Sex with animals

Waiting period?

You must be free of arrest following release from supervision for 10 years.

Once the Limited Filing is filed, signed and processed, records remain available for Law Enforcement and licensing, but not to the public or employers. Individuals do not need to disclose sealed records.

This statute was critically necessary because of the immense damage that is done to the career of anyone who has a conviction or two on their record. Expungement petitions were not available because they do not apply to misdemeanor convictions. Pardons are still available but have a four to five year waiting period once they are filed.

Recommendation

Even once criminal record(s) have been sealed to help with employment and other issues, you should consult about the possibility and timing of a Pardon application which would remove the record completely.

The Pennsylvania Expungement Process

By Mark F. Walmer

The Pennsylvania Expungement Process can remove 7 kinds of criminal records:

a charge where no disposition has been received for 18 months;
non-conviction data – charges one was NOT convicted of, like ARD;
an Underage Consumption after reaching the age of 21;
a summary offense (like Disorderly Conduct after 5 years with no additional arrests;
a charge that has been pardoned by the Governor;
felony and misdemeanor convictions for an individual who reaches 70 years of age and has been prosecution-free for 10 years;
a charge against an individual that has died.

The expungement process starts with the drafting of an expungement petition. To this is added:

Form 490 or Form 790, as needed;
an affidavit of completion (if necessary);
an affidavit of accuracy;
a PSP Criminal History or an AOPC web docket printout (as necessary),
the correct number of copies and a filing fee.

Once the Petition is filed, the District Attorney reviews it to take a position in support, or opposition.

If the expungement is not contested by the District Attorney, the Judge will sign the order, and send it to the Clerk of Courts. The Clerk will issue copies of the Judge’s order to the parties listed in the Order. The State Police have been taking a few months to make the correction to the official criminal database. Then they will send a corrected criminal history with NO indication of the expunged offense. The Administrative Office of Pennsylvania Courts website (containing public records) will be corrected, and all of the national databases should be required to update their records as well.

The importance of knowing exactly what is on your criminal history

Expungements, Limited Access Petitions, and Pardons are very specific. Naturally, the first thing that MUST be known is exactly what is on the criminal record. The rules of pardons, expungements and record-sealing are explicit and precise and cannot be accurately applied to what someone ‘thinks’ is on his or her record. So, the first item of business is ALWAYS to research the criminal history to see what can be cleared and when.

Research the public record here – AOPC, or contact us.

Governor’s Pardon Process in Pennsylvania

By Mark F. Walmer

Anyone with a criminal record in Pennsylvania can apply for a pardon by the governor. The likelihood of actually getting a pardon, however, depends on certain factors and how you approach the process.

First, it is necessary to understand the typical scenarios under which pardons are granted. The majority of people who ultimately receive pardons have either been convicted of a minor crime at least five years ago or, if it’s a more serious crime, 10 years or more. One of the reasons for the delay is that those reviewing your case want to see that you’ve stayed out of trouble for a reasonable amount of time. Additional considerations are the circumstances of the crime, why it ocurred, whether it was violent or non-violent, and what you have done with your life since then.

The process is fairly straightforward, but a considerable amount of work must be done to submit an acceptable application. It can also be time-consuming. For example, the first step–-ordering your complete criminal record from the Pennsylvania State Police–-can take up to six months. It can take another two to three months to gather all the documentation: criminal complaints, affidavits, sentencing sheets, driving record, etc. Once filed, the Commonwealth’s five-member Board of Pardons, which is tasked with recommending worthy applicants to the governor for review, can take up to a year to even grant you a hearing. If the hearing is not granted, your application is denied.

If you are fortunate enough to be granted a hearing, you will have 15 minutes to present your case to the Board and answer questions. This is your opportunity to present character witnesses, explain the circumstances of your conviction and describe how you have lived your life since the case has been closed.

After reviewing pardon applications and hearing testimony from applicants, the Board takes a vote to determine who they believe should receive a pardon. If a consensus is reached by three of the five members, a recommendation for pardon is then sent to the governor for review.

Once he receives the recommendations, the Governor has total discretion over whose requests he will grant.

Fortunately, you don’t have to go through the process alone. Not only can Record Eraser help navigate the process for you, our knowledgeable experts can help you prepare an application and testimony that will increase your chances of receiving a favorable vote.

Don’t delay.

Pardons, Expungements & Gun Rights in Pennsylvania

By Mark F. Walmer

There is a pretty persistent misconception about people who have had their gun rights revoked.

The prevailing wisdom is that a serious felony or violent crime must have been committed to have had such a heavy penalty imposed. In fact, many firearm revocations are the result of nonviolent offenses, misdemeanor convictions, protection from abuse orders, or involuntary civil commitments. Worse, prohibition from gun ownership can go well beyond the final disposition of the case.

While there are clearly instances in which firearm revocations are well-warranted, others may find themselves questioning whether their relatively minor brush with the law justifies a prohibition from owning firearms. In certain circumstances, gun rights can be restored by way of the pardons and/or expungements processes. Check out our FAQ page to see if you qualify for a pardon or expungement under PA law.

The revocation of gun rights in Pennsylvania can fall into one or two categories: federal and state prohibitions. Generally, if a conviction has been expunged or pardoned at the state level, it will no longer be considered a conviction under U.S. or Pennsylvania law. Regrettably, most offenses that result in the revocation of the right to own firearms are not eligible for expungement. The good news, however, is that virtually any offense or combination of offenses can be pardoned. Once a pardon is granted, a petition can then be brought before the court to have the firearm prohibition lifted.

If you believe your gun rights should be restored, and you are eligible for a pardon or expungement, don’t wait!

What’s the difference between pardons and expungements?

By Mark F. Walmer

Although the terms are frequently paired together, expungements and pardons are similar only in that they each seek to clear criminal charges and convictions from a person’s criminal history file.

Scope. Generally speaking, pardons can only be granted by the Governor (after a recommendation by the state Board of Pardons) and can apply either to individual summary, misdemeanor or felony offenses or an entire criminal history. Expungements, on the other hand, are limited in scope in that they are granted by the courts, but only apply to non-convictions, inaccurate records and summary offenses, and a separate petition must be filed for each item on the record.
Ease of Resolution. While expungements for qualified applicants are much easier to obtain, they only apply in specific instances. Pardons, meanwhile, can apply to virtually any criminal offense or group of offenses, but are much more difficult to obtain. An expungement can be resolved within a few weeks if the proper paperwork is in order, but a pardon takes at least three years just to be investigated and reviewed!
Process. Expungements are obtained with a simple court petition, and if you meet the qualifications outlined in the state statute, your record will be cleared. Pardons are much more circumstantial. An appearance before the 5-member Board of Pardons must be requested and if three of the five members find your story compelling enough, your case is then recommended for a pardon. The governor then can decide whether to issue the pardon.
For more information, please see these articles in Fine Living Lancaster. Or …

Medical marijuana in PA: what passage could mean for your record

By Mark F. Walmer

By a margin of 43-7 on Sept. 23, 2014, the Pennsylvania Senate passed SB 1182, a bill that would decriminalize about a dozen instances of medical marijuana possession in the Keystone state.

“The Compassionate Use of Medical Cannabis Act,” introduced by Sen. Mike Folmer of Lebanon, PA, outlines the specific conditions within which medical marijuana can legally be purchased and provides legislative oversight for allowable cultivation, processing and dispensing of the plant to people with qualifying conditions such as chronic epilepsy.

Although Senate passage of the bill is a significant step toward decriminalization, the measure must still be approved by the state House of Representatives and signed into law by the governor.

Under existing Pennsylvania law, marijuana in any form is considered a Schedule I narcotic. This means that possession for personal use is classified as a misdemeanor and carries a penalty of up to 30 days in jail. Possession with intent to deliver or manufacture marijuana is a felony under PA law and a conviction can carry up to 5 years in prison.

Thankfully, in certain circumstances simple possession charges can be expunged from a person’s criminal record. However, even if SB 1182 ultimately passes into law, previous or pre-existing charges would not automatically be erased from a person’s record. As it stands, even if possession is predicated on a legitimate and qualifying medical need, a “medical necessity” defense cannot be asserted in Pennsylvania courts.

Decriminalization would be a welcome change to the legislative process, especially considering the harsh collateral damage a possession conviction can do to a person’s life. Drug possession convictions often result in a suspended license, diminished employability and ineligibility for student loans or financial aid.

The good news is that if medical marijuana is decriminalized in Pennsylvania, those with pre-existing marijuana convictions may find the PA Board of Pardons more sympathetic to their petition.

If you have been convicted of a marijuana-related crime in Pennsylvania, the Walmer Law Office may be able to help clear your record.

It’s never too late for a second chance

By Mark F. Walmer

Not long ago, we received a call at the Walmer Law Offices from a senior citizen with a question …

The woman on the other end of the line said she was 65 and seeking an expungement for a summary retail theft conviction that had been on her record since she was 18 years-old (47 years ago).

She was eligible for expungement five years after her conviction, but by then her record had become a closely guarded secret. For 42 years, she had lived with regret, always fearful her family would one day find out the truth.

“I can’t believe I’m talking to a total stranger about my shame,” she said. Then, before quickly hanging up, she tearfully added, “I’m so scared my grandchildren will find out their grandmother is a thief.”

I wish she hadn’t ended the call. There was so much I could have said to ease her pain. I would have told her we have a 100 percent success rate with qualified expungement candidates. I would have told her we could take care of it quietly and in short order and that her humiliation could finally be lifted.

Then I would have told her about a woman I’ll call “Mary.”

Mary is a 60-year-old woman who was convicted of a felony drug offense 22 years ago. The conviction has always hovered just in the background of Mary’s life, serving as an embarrassing reminder of her mistake. But Mary didn’t opt to seek a pardon from the Governor until just recently, when one of the horrible consequences of her past finally caught up with her: she was denied the ability to work in her grandchildren’s daycare.

The shame and embarrassment Mary had felt for so long was finally supplanted by a much more visceral emotion. It wasn’t anger or sorrow or outrage. The consequences were, after all, hers to bear. But Mary had paid her debt to society. She had turned her life around. She had moved past that jarring experience … or so she thought.

Mary came to RecordEraserPA with her story, and when she presented her case to the board of pardons, she never wavered from the facts. She took responsibility. She also explained her situation, and asked the board’s members for forgiveness and understanding. Her story must have resonated with them, because they voted 5-0 to recommended her for a pardon. Now her shame has turned to joy and redemption!

Now the Governor can act.

To the grandmother who prematurely ended that phone call — if you’re reading this — please know that we can help. It’s what we do.

It’s never too late for a second chance.

Protecting your criminal history begins with choices

By Mark F. Walmer

Most criminal cases begin when someone has a lapse in judgement, or is under the influence of drugs or alcohol. After the crime occurs, they go through the system, sheepishly, accept their conviction, and go on to find it is virtually impossible to get employment.

So first, avoid criminal behavior! Make choices that make it unlikely you will have a conversation with the police.

However, when one does get charged with a crime – protecting your record begins with consulting an experienced criminal defense attorney immediately! Pursue any alternative program that allows one to avoid conviction.

For instance, if one smokes marijuana and gets caught there are two likely outcomes (assuming that the police acted lawfully and there are no search and seizure issues):

One pleads guilty, pays a small fine, loses one’s driver’s license, and has 30 days probation, and receives a conviction that will be on their record until they file for a Pardon!

-OR-

One applies for ARD (or section 17 disposition, in the past), receives 30 days probation, small fine, no license loss (possibly), and the charges are dismissed upon completion. This resolution allows an expungement immediately!

Two drastically different outcomes based on knowledge of the law and the system. Always consult an experienced attorney if you get in trouble. Better yet, avoid criminal behavior.