By Douglas K. Marsico, Esquire
Effective Nov. 14, 2016, eligibility for expungement of a criminal record will be expanded to include many second- and third-degree misdemeanor criminal convictions.
This provides relief to Pennsylvania citizens with minor criminal records who previously had to obtain a pardon to have their criminal records removed—a process that often took many years. Brokers considering hiring prospective licensees with criminal records, or those seeking to sit for the broker’s examination who have a record, may seek to take advantage of an expungement as it may pave the way for licensure.
Under the new law, a person convicted of ungraded, second-degree or third-degree misdemeanors are eligible for a "limited access expungement" of his or her criminal record. To be eligible, the person must be free of arrest or conviction for a period of 10 years following his or her release from supervision. A "limited access expungement" means that the criminal records are unavailable to the public. However, the criminal records are still available to law enforcement and state licensing agencies.
A person convicted of misdemeanors of the first degree or felonies is not eligible for the limited access expungement. Other offenses which are ineligible for the limited access expungement include second-degree simple assault cases, intimidation or retaliation of a witness or victim, offenses requiring registration as a sex offender and impersonation of a public official. Also, a person with four or more misdemeanors of the second or third degree convictions is ineligible for the limited access expungement.
Obtaining the limited access expungement requires the filing of a petition with the Common Pleas Court where the conviction occurred. After a limited access expungement is granted, criminal records will not be available to the public and the related docket will be removed from the statewide judicial portal website. The individual then does not need to disclose the existence of the sealed records for employment or other purposes.
Prior to the enactment of this law, a person with a criminal conviction for a misdemeanor could only have the misdemeanor removed from his or her record by going through the long and arduous pardons process. Accordingly, this new law should provide much relief to citizens of Pennsylvania to ease the burden that a criminal record carries.
As mentioned, the limited access expungement does not prohibit a state licensing agency from considering an applicant’s criminal history even after a limited access expungement is granted. Accordingly, even if a person has obtained a limited access expungement of criminal records, the Real Estate Commission will be aware of the conviction and may consider it in accordance with its rules and regulations pertaining to licensing of salespeople and/or brokers.
We believe, however, that expungement of a criminal record demonstrates to the commission that not only your effort to "right" things, but also of the fact that the court has considered and granted the petition for expungement.
Mr. Marsico is an attorney with Caldwell & Kearns which serves as general counsel to PAR. A portion of his practice is dedicated to providing advice and counsel to real estate licensees and representing and defending real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. He routinely counsels employers on employee relations issues as one of the voices of the PAR Legal Hotline.