Appeal from the Order entered on December 17, 2007, in the Court of Common Pleas of Chester County, Criminal Division, at No(s). CP-15-CR-0001131-2004.
The opinion of the court was delivered by: Lally-green, J.
BEFORE: LALLY-GREEN, KLEIN, and GANTMAN, JJ.
¶ 1 Appellant, Christopher Hanna, appeals from the order entered on December 17, 2007, denying his petition to expunge. We vacate and remand.
¶ 2 The trial court summarized the facts of the case as follows:
In early December, 2003, Defendant, by the admission of his plea, "received three laptop computers from Angelo Hicks. He told me CCIU [Chester County Intermediate Unit] was getting rid of the computers. I should have known that he had taken the computers from CCIU without authority to do so. I turned on one of the computers and I learned it was working and belonged to CCIU. I should have called the police or taken immediate steps to return it to CCIU and I did not."
As a result of this incident, Defendant was charged with [34 counts, including burglary, criminal trespass, theft by unlawful taking, receiving stolen property, criminal mischief, institutional vandalism, unlawful use of a computer, computer theft, computer trespass, and conspiracy to commit many of those crimes]. Defendant waived his preliminary hearing on March 8, 2004. The next day, Cheryl Sturm, Esquire entered her appearance on Defendant's behalf.
On August 13, 2004, Defendant pled guilty to one count of receiving stolen property. With reference to the thirty-three charges to which he did not plead, Defendant's written Guilty Plea Colloquy states that "ALL COUNTS NOT DISPOSED OF ABOVE (NOR DISPOSED OF PURSUANT TO PLEA BARGAIN, ATTACHED HERETO) INCLUDING SUMMARY OFFENSES AT THE ABOVE INFORMATION NUMBER(S), ARE WITHDRAWN." At the sentencing hearing, Judge Gavin stated "to the extent that there are counts that do not merge, they are dismissed, cost on you." N.T. 8/13/04 p.6. Ms. Sturm signed the Guilty Plea Colloquy as Defendant's counsel and was present for the sentencing hearing.
Pursuant to the terms of the plea, Defendant was sentenced to three years probation, a $100 fine and costs. Defendant completed all of the conditions of his probation without incident during the first year and was placed on non-reporting probation as of October 6, 2005. On March 2, 2006 his probation file was closed.
On November 26, 2007 Defendant petitioned to expunge the thirty-three charges to which he had not entered a plea. On December 11, 2007 a hearing was held and Defendant's petition was denied by our Order entered December 17, 2007.
Defendant filed an appeal on January 15, 2008. On February 1, 2008 Defendant filed a Statement of Matters Complained of on Appeal raising one claim of error: "The court erred in holding that Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001) precluded expungement of non-conviction data pursuant to 18 Pa.C.S. § 9122; unlike the Lutz case, the Defendant was not bound over for trial after a preliminary hearing, the terms of the plea agreement were not spread on the record, there was no factual basis for the most serious charges and the prosecution dropped the most serious charges."
Trial Court Opinion, 2/19/2008, at 1-2 (footnote omitted). The trial court issued a Pa.R.A.P. 1925 opinion on February 19, 2008.
¶ 3 Appellant raises one issue on appeal:
Whether the Court erred in holding that Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. 2001), precluded expungement of the non-conviction data pursuant to 18 Pa.C.S. § 9122; unlike the Lutz case, the written plea colloquy says the remaining charges will be withdrawn; the defendant was not bound over for trial after a preliminary hearing; the terms of the plea agreement were not spread on the record; ...