IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ANNE JONES, )
)
Petitioner, )
)
V. )
) C.A. No. N18X-01-018
STATE OF DELAWARE, )
)
Respondent. )
)
_O_RM

Date Decided: June 4, 2018

Procedural Background

On May 31, 2017 Anne Jones (Petitioner) was arrested subsequent to a
domestic altercation in their home.l Petitioner was charged with menacing,
terroristic threatening, and possession of a deadly weapon during the commission of
a felony (PDWDCF). On June 16, 2017 the State entered a nolle prosequi on the
charge of PDWDCF and the remaining charges were filed with the New Castle
County Family Court. On November 13, 2017 those charges were dismissed by the
Family Court. Petitioner sought and was granted expungement of the menacing and

terroristic threatening arrests before the Family Court. The petition before the

 

1 In pursuit of the expungement statute’s goal for individuals to be free from improper and
unwarranted intrusions into their privacy the Court has supplied a pseudonym for Petitioner.

Family Court was unopposed by the State. Petitioner filed their Petition for
Expungement of the PDWDCF arrest in this Court. ln contrast to their position
before the Family Court the State opposed this Petition. On February 21, 2018
Petitioner was denied expungement by the Commissioner of this Court and this
appeal was filed. This Order follows a review of the briefings and a hearing before

the Court on May 20, 2018.
Parties Contentions

Petitioner’s argument relies on the statutory language of the expungement
statute alleging their current employment may be at risk and potential for
advancement will be hindered. Petitioner was required to undergo a criminal
background check prior to employment and will likely be subjected to further review

should they choose to advance within his current employer

The State takes the position that given the seriousness of the charges and
potential for repeat offenses by Petitioner, law enforcement officers responding to
future incidents would be hindered in their duties by not having the expunged
records at their disposal. The State is of the opinion that expungement may be
appropriate at some time in the future, however that decision is at the discretion of
the Court. The State supports the Commissioner’s Order that if Petitioner is without

incident for “a couple of years” then expungement may be appropriate at that time.

The State also argues a liberal interpretation of the statute would result in an
overbroad application of the law. The State contends that granting expungement
when the sole argument is based on potential negative employment outcomes the

Court would effectively make all expungements mandatory.
Analysis

Under Superior Court Civil Rule 132(a)(4)(iv) a judge engages a de novo
review of a Commissioner’s F indings of Fact and Recommendations. Eleven Del
C. Chapter 85 provides the statutory framework for establishing the State Bureau
of Identification. The purpose of the chapter is to ensure accurate records of an
individual’s criminal history balanced against “the right of individuals to be free
from improper and unwarranted intrusions into their privacy”2 The statute directs
all law enforcement agencies in the state to report and the bureau to maintain

records of all arrests made within the State.3 This information is readily accessible

by individuals and employers4

To prevent innocent individuals from experiencing unwarranted prejudice

the Legislature has provided a statutory framework for the expungement of

criminal records under 11 Del. C. Chapter 43. The General Assembly speaks

 

2 11 Del. C. § 8501 (a)
3 ii Del. C. § 8506 and §8507.
4111)@1. C. §8513

directly to the case at bar; “arrest records can be a hindrance to an innocent
citizen’s ability to obtain employment This subchapter is intended to protect
innocent persons from unwarranted damage which may occur as the result of arrest
and other criminal proceedings which are unfounded or unproven.”5 An individual
may only petition the Court for expungement for criminal actions terminated in
favor of the accused.6 Favorable terminations include acquittals, successful
completion of probation before judgment, and an entrance of nolle prosequi on all

charges related to a case.7

Given the severity of the charge the arrest record before the Court falls
within the scope of the discretionary expungement statute. For an order of
expungement to be granted under 11 Del. C. § 43 74 the petitioner bears the burden
of proving by a preponderance of the evidence that information related to the arrest
may cause circumstances resulting in manifest injustice.8 The Petitioner must
provide specific facts supporting allegations of such injustice9 The Attomey
General is made a respondent to the action and may object to or respond to a

petition for discretionary expungement10

 

5110@1.€.§4371

6 11 Del. C. § 4372

7 Id.

8 111)@1. C. § 4374 (c).
9 Id.

10 11 Del. C. § 4374 (b)

At a hearing before this Court, Petitioner maintained the allegation that
allowing arrest records for charges that were nolle prosequiea’ to remain on their
record is manifestly unjust. The Court considered the facts of this case and finds

that expungement is proper for Petitioner.

The statute’s mandate is clear. Innocent persons are to be protected from
unwarranted damage occurring from an arrest. Previous convictions are “prima
facie evidence that the continued existence of information relating to the arrest
in question does not constitute a manifest injustice to the Petitioner.”ll The Court
finds the inverse to be true; a lack of previous criminal convictions coupled with
favorable termination of charges brought against an individual is prima facie
evidence that the continued existence of information related to the arrest in
question constitutes a manifest injustice to the Petitioner. This can be extrapolated

to include charges brought at the same time that have subsequently been expunged

The State is correct in its assertion that expungement of the PDWDCF falls
within the discretionary expungement statue, but makes an unconvincing argument
related to time elapsed since the arrest and severity of the charge. This Court is not
convinced by the State’s argument that expungement is improper at this time based

on the interests of law enforcement officers investigating possible future criminal

 

ll 11 Del. C. § 4374(c)

activity. There is no language in the statute that requires the Court to consider

these factors.

The Court considers the statutory language of manifest injustice most
convincing In the instant case Petitioner has an arrest record for PDWDCF. To
be convicted for PDWDCF a finder of fact must first find a defendant guilty of a
felony. To allow a charge of any offense predicated by the commission of a felony
to remain on an innocent person’s criminal record with nothing more would be
manifestly unjust. An arrest record for an offense predicated by the commission of
a felony would inevitably lead to questions about what felony an individual had

been arrested for, but which is not reflected in their criminal history.

The Court finds allowing the PDWDCF arrest to remain on Petitioner’s
record to be a manifestly unjust hindrance to Petitioner’s employment The

Commissioner’s March 28th Order is REVERSED.

IT IS S() ORDERED.

Judge Calvin L. Scott, Jr.

