A Great Commonwealth Court Appellate Review

April has been a busy month for appellate decisions.  A recent case of my was decided in my client’s favor.  Important lessons are learned from this case.On March 27, 2015, the Board issued an order to show cause why Freeman’s license should not be suspended, revoked, restricted, or a civil penalty imposed, for violating the Practical Nurse Law, 63 P.S. §§651-667.8, and the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §§9101-9183. The six counts set forth by the Board as follows:

(1) under Section 16(a)(5) of the Practical Nurse Law, 63 P.S. §666(a)(5),3 because Freeman was convicted of a crime of moral turpitude (criminal conspiracy to commit theft by deception from Home Depot);(2) under Section 16(a)(5) of the Practical Nurse Law, because Freeman was convicted of a crime of moral turpitude (theft by deception from a Majestic Oaks resident);(3) under Section 9124(c)(2) of CHRIA,4 because Freeman was convicted of a misdemeanor related to the profession (theft by deception from a Majestic Oaks resident);(4) under Section 16(a)(4) of the Practical Nurse Law, 63 P.S. §666(a)(4),5 in that Freeman [*4]  committed fraud or deceit in securing her admission to practice (by failing to truthfully answer the question about having pending criminal charges on her biennial renewal application);(5) under Section 16(a)(8) of the Practical Nurse Law, 63 P.S. §666(a)(8),6 in that Freeman was guilty of unprofessional conduct (by committing theft by deception from a Majestic Oaks resident); and(6) under Section 16(a)(3) of the Practical Nurse Law, 63 P.S. §666(a)(3),7 for violating the Board’s regulation at 49 Pa. Code §21.148(b)(4),8 which prohibits nurses from misappropriating property or money from patients (by committing theft by deception from a Majestic Oaks resident).

When the board entered a penalty of license suspension rather than probation. Factually, my presentation of the evidence at the hearing was given great weight on appeal.Freeman testified on her own behalf. Regarding the criminal charges that led to ARD, Freeman explained that a friend had asked her to drive her to Home Depot to make a return. Her friend did not have a receipt or her driver’s license, which the store required to process a return. Accordingly, Freeman gave her driver’s license to the store clerk. While Freeman was waiting for the return to be processed, her friend borrowed her car keys and placed shoplifted merchandise in Freeman’s car.Regarding the conviction for theft, Freeman acknowledged that she used a patient’s personal financial information to pay her utility bills. She explained:

Well, at the time, I was raising my son on my own as a single mother. Everything was on the verge of being cut off. You know, I didn’t want to have to go back to the shelter. I made a stupid decision to do that.

Notes of Testimony (N.T.), 7/2/2015, at 33; R.R. 56. Freeman expressed remorse for her actions, stating:

I mean, I’m just nervous because — you know, I worked so hard to get where I am today. I do regret the — some of the decision[s] that I’ve made, because I love my career. I love helping people. I love what I do, and based on the decisions that I’ve made, it’s just jeopardizing my whole career. I had to spend lots of money, you know, for lawyers and court costs, fees and everything. But yes, I do regret being here today, in the situation that I’m in today, I mean.

Id. at 43-44; R.R. 66-67.Freeman recounted the difficult circumstances she overcame in her personal life. Freeman explained that, after graduating from high school, she became involved in an abusive relationship for approximately one year. She moved to a shelter, where she lived for two years. Id. at 46; R.R. 69. While living at the shelter, Freeman enrolled in a certified nursing assistant (CNA) training program and obtained her CNA license. She found employment and, after saving some money, moved out of the shelter and into a one-bedroom apartment. Shortly thereafter, Claimant gave birth to a son, for whom she was solely responsible because the father was incarcerated. Freeman worked several jobs while continuing her nursing education and, in April 2013, earned her certificate in practical nursing.As I have said many times, mitigation evidence is huge.  Handling these cases at a hearing requires trained counsel to properly distill the facts for the court.  On appeal, finding the winning argument also takes experience.  In this case, the multitude of criminal allegations confused the Board.  It disciplined her for a conviction she did not suffer.Freeman challenges the Board’s sanction because it cited crimes for which she was not convicted and facts not in the record. The record showed that Freeman pled guilty to one count of conspiracy to commit theft at Home Depot and one count of theft for stealing financial information from a nursing home resident. She was not convicted of stealing the resident’s jewelry; that criminal charge was nolle prossed. The Commonwealth responds that it matters only that Freeman was convicted of theft. Whether it was theft of jewelry and banking account information, or just banking account information, is irrelevant. The Board argues that its reference to a conviction of theft of jewelry was harmless error. We disagree.In making its decision to increase the penalty, the Board stated that “[Freeman] was convicted of theft for stealing jewelry and using the bank account of an elderly patient to pay her personal bills.” Board Adjudication, 7/26/2016, at 1; Freeman Brief at P29 (emphasis added). This fact is not supported by the record. The charge related to theft of jewelry was nolle prossed, and there is a difference between a criminal charge and a criminal conviction. Freeman asserts this requires a reversal of the Board’s sanction. The Board responds that the record supports this disputed statement and directs this Court to the Hearing Examiner’s finding of fact that “[t]he charge of Theft by False Impression was the result of [Freeman’s] theft of property including jewelry and checking account information….” Proposed Adjudication, 11/19/2015, at 5; Freeman Brief at P39.A charge is an accusation or allegation that a person committed an offense. By contrast, a conviction is a finding by a court that a person is guilty of a criminal offense. In short, the finding of fact cited by the Board does not support its assertion that Freeman was “convicted” of “stealing jewelry.”We won this case.  The license suspension was reversed.  The case has been sent back down to the Board.