Izbicki vs. Pennsylvania State Police

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police, :

Petitioner ::

v. : No. 2885 C.D. 2000

: Argued: September 10, 2001

Edward J. Izbicki, :

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE DAN PELLEGRINI, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge

OPINION

BY SENIOR JUDGE McCLOSKEY FILED: October 19, 2001

Pennsylvania State Police (PSP) petition for review of an order of an

Administrative Law Judge (ALJ), reversing the decision of PSP that Edward J.

Izbicki (Izbicki) possessed a disability preventing him from acquiring a license to

carry a firearm. We affirm.

On or about February 13, 1942, Izbicki pleaded guilty to the following

criminal charges: burglary, larceny and receiving stolen property. Izbicki was

sentenced to an undefined term of imprisonment which was subsequently

suspended for good behavior. Izbicki was placed on parole for one year.

On March 10, 1999, Izbicki attempted to purchase a firearm. In

response to an instantaneous records check pursuant to Section 6111.1(b) of the

Pennsylvania Uniforms Firearms Act (Act), 18 Pa. C.S. §6111.1(b),1 PSP

1 18 Pa. C.S. §6111.1(b) provides:

(b) Duty of Pennsylvania State Police.-

(1) Upon receipt of a request for a criminal history . . . of

the potential purchaser or transferee, the Pennsylvania State

(Footnote continued on next page…)

conducted a review of its criminal history files and other relevant records to

determine if Izbicki was prohibited from receipt or possession of a firearm under

federal or state law. This review revealed Izbicki’s burglary conviction. Because

the conviction was an enumerated offense under Section 6105(b) of the Act and

constituted a state conviction punishable by more than two years imprisonment,

PSP denied Izbicki’s purchase pursuant to Section 922(g) of the Federal Gun

Control Act of 1968 (Federal Act), 18 U.S.C. §922(g),2 and Section 6105(b) of the

Act.3 Izbicki thereafter challenged the denial by completing an instant check

(continued…)

Police shall immediately during the licensee’s call or by

return call forthwith:

(i) review the Pennsylvania State Police criminal

history and fingerprint records to determine if the

potential purchaser or transferee is prohibited from

receipt or possession of a firearm under Federal or

State law.

2 18 U.S.C. §922(g) provides:

(g) it shall be unlawful for any person –

(1) who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one year;

. . .

to . . . possess in or affecting commerce, any firearm or

ammunition; or to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign commerce.

3 Section 6105(a) of the Act, 18 Pa. C.S. §6105(a), provides:

(a) Offense defined.-

(1) A person who has been convicted of an offense

enumerated in subsection (b), within or without this

Commonwealth, regardless of the length of sentence . . .

(Footnote continued on next page…)

system challenge form. On August 12, 1999, PSP upheld Izbicki’s denial. Izbicki

did not further appeal this denial with the Attorney General. 4

On October 15, 1999, Izbicki petitioned the Court of Common Pleas

of Erie County (trial court), for an expungement of his burglary conviction.5 As

noted on Izbicki’s petition, the Erie County District Attorney consented to the

expungement of his criminal record. (R.R. at 97a). On November 3, 1999, the

trial court ordered Izbicki’s criminal record information relating to his burglary

conviction expunged. (R.R. at 100a-102a).

On November 23, 1999, Izbicki applied for a license to carry a firearm

with the Erie County Sheriff’s Office (Sheriff’s Office). At the request of the

Sheriff’s Office, PSP conducted a criminal background check. According to the

parties, PSP then denied Izbicki’s application pursuant to Section 6109(e) of the

Act.6 Izbicki challenged the accuracy of his criminal record by completing an

(continued…)

shall not possess, use, control, sell, transfer or manufacture

a firearm in this Commonwealth.

4 Pursuant to Section 6111.1(e) of the Act, Izbicki could have appealed the denial of his

right to purchase a firearm to the Attorney General within thirty days.

5 In the petition, Izbicki alleged that there were no records available evincing his burglary

conviction. Additionally, Izbicki alleged that he was nineteen-years-old at the time of his

convictions and was subject to treatment as a juvenile under the applicable law at that time.

Finally, he averred that he had refrained from all criminal activity since the time of his

convictions.

6 Section 6109(e) of the Act, 18 Pa. C.S. §6109(e), provides:

(e) Issuance of license.-

(1) A license to carry a firearm shall be for the purpose of

carrying a firearm concealed on or about one’s person or in

a vehicle and shall be issued if, after an investigation not to

(Footnote continued on next page…)

instant check system challenge form. (R.R. at 20a-22a). By letter dated December

7, 1999, PSP upheld the denial of Izbicki’s license to carry a firearm based on his

burglary conviction. Izbicki appealed.

In the meantime, PSP was notified of the trial court’s expungement

order. By letter dated December 22, 1999, PSP’s Central Repository notified the

Erie County Clerk of Courts that all criminal history record information pertaining

to the burglary conviction was expunged in accordance with the trial court’s order.

(R.R. at 45a). The letter further stated that Izbicki was notified as well.

On February 29, 2000, a hearing was held before an ALJ.7 At the

hearing, Izbicki argued that the trial court’s expungement order cured him of his

(continued…)

exceed 45 days, it appears that the applicant is an

individual concerning whom no good cause exists to deny

the license. A license shall not be issued to any of the

following:

. . .

(iii) An individual convicted of a crime enumerated

in Section 6105.

. . .

(viii) An individual who is charged with or has been

convicted of a crime punishable by imprisonment

for a term exceeding one year except as provided by

section 6123 (relating to waiver of disability or

pardons).

We find it interesting that both parties view the denial of the license as coming

from PSP when, under Section 6109(g) of the Act, 18 Pa. C.S. §6109(g), it is the sheriff’s duty to

issue or refuse to issue a license on the basis of an investigation conducted pursuant to Section

6109(d) of the Act, 18 Pa. C.S. §6109(d).

7 Although the ALJ noted that Izbicki appealed both the denial of his right to purchase a

firearm and the denial of his license to carry a firearm, Izbicki did not appeal the former within

thirty days of PSP’s confirmation, i.e., August 12, 1999, pursuant to Section 6111.1(e) of the

(Footnote continued on next page…)

disqualifying conviction and, therefore, his firearms license could not be denied.

In opposition, PSP argued that it did not honor Izbicki’s expungement because the

allegations he made in the petition were false. Additionally, PSP argued that the

expungement was improper as Izbicki was not free of an arrest or prosecution for a

crime during the last ten years as required by Section 9122 of the Criminal History

Record Information Act (CHRIA), 18 Pa. C.S. §9122.8

The ALJ held:

From all accounts on record the expungement

proceedings were appropriate, the Order, certified . . .

and presented to this Tribunal must be accepted as valid

and viewed accordingly. With a valid expungement in

hand the disabilities created by the existence of the

burglary conviction are removed by enforcement of that

expungement. The Common Pleas Expungement Order

should remove the conviction that stems from the

burglary arrest for both the [Act] and the [Federal Act] . .

. In reviewing the record and giving the Expungement

Order its due weight we must conclude that if given

proper weight by the PSP the effect would be the

removal of any disability as to the Respondent’s rights

under the respective state and federal gun control

statutes.

(ALJ’s Opinion at 6). Inexplicably, the ALJ also addressed Izbicki’s denial of his

right to purchase a firearm which was not properly before him.

(continued…)

Act. Therefore, the only issue preserved and before the ALJ was whether Izbicki possessed a

disability disqualifying him from carrying a firearm.

8 Section 9122(b)(1) of the CHRIA, 18 Pa. C.S. §9122(b)(1), provides, “[c]riminal

history record information shall be expunged when . . . [a]n individual who is the subject of the

information reaches 70 years of age and has been free of arrest or prosecution for ten years

following final release from confinement or supervision . . . .”

On appeal to this Court,9 PSP argues that it is not bound by the

expungement order since Izbicki obtained the expungement under false pretenses.

We disagree.

Essentially, PSP is attempting to attack the validity of Izbicki’s

expungement. As PSP conceded at oral argument before this Court, the law is

clear that PSP lacks standing to challenge the validity of an expungement order.

See Commonwealth v. J.H., 563 Pa. 248, 759 A.2d 1269 (2000); Commonwealth

v. Court of Common Pleas of Bucks County, 615 A.2d 949 (Pa. Cmwlth. 1992),

affirmed, 533 Pa. 324, 623 A.2d 814 (1993). Hence, PSP was bound by the trial

court’s November 3, 1999, expungement order and it lacked sufficient justification

to conclude that Izbicki possessed a disability regarding his firearms license

application.

We must reiterate here that it is not PSP’s duty to grant or deny a

firearms license. As explained in this Court’s recent opinion in Moats v.

Pennsylvania State Police, ___ A.2d ___ (Pa. Cmwlth., No. 2470 C.D. 2000, filed

August 23, 2001), the ALJ’s review is limited to determining whether the criminal

history record of an applicant for a license is accurate and complete. In Moats, we

further indicated as follows:

With the exception of the city of Philadelphia, a city of

the first class, a sheriff has the sole authority to grant or

deny an individual’s application for a firearms license . . .

A sheriff may deny an application based on factors other

than the individual’s criminal history record . . . If an

individual’s license application is denied, he may appeal

9 Our scope of review is limited to determining whether necessary findings of fact are

supported by substantial evidence, an error of law was committed or whether constitutional

rights were violated. See Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.

to the county’s trial court which shall conduct a de novo

review . . . An individual may then appeal to this Court

and only then may we address the merits of the license

denial.

(Moats, slip op. at 4-5)(citations omitted). Izbicki failed to file an appeal of his

license denial with the trial court. Moreover, Izbicki is not automatically entitled

to a firearms license; instead, Izbicki must reapply to the Sheriff’s Office for such a

license. In turn, it is the duty of the Sheriff to determine whether the license

should be granted or denied. Part of this determination will certainly hinge on

PSP’s criminal records check.

Accordingly, the order of the ALJ is hereby affirmed.

JOSEPH F. McCLOSKEY, Senior Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police, :

Petitioner ::

v. : No. 2885 C.D. 2000

Edward J. Izbicki, :

Respondent :

O R D E R

AND NOW, this 19th day of October, 2001, the order of the

Administrative Law Judge is hereby affirmed.

JOSEPH F. McCLOSKEY, Senior Judge