Opinion
C.A. No. 07X-04-010.
Submitted: July 17, 2007.
Decided: July 25, 2007.
Joseph A. Hurley, Esquire, Wilmington, Delaware.
Kara R. Haines, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware.
Dear Counsel:
Before this Court is a Petition for Expungement of Criminal Record filed by Justin K. Paige ("Petitioner") pursuant to 11 Del. C. § 4372, which states in part that "[a] person may file a petition setting forth the relevant facts and requesting expungement of the police record, and the court records relating to the charge." The procedural issue in the instant case requires a determination of which party bears the burden of proof to demonstrate the final disposition of two 2005 criminal charges in the Court of Common Pleas.
11 Del. C. § 4372(a)(2).
Because the Court has determined that the burden of proving a dismissal of criminal charges by way of a nolle prosequi, acquittal, or dismissal rests with the Petitioner, and because the Petitioner has failed to demonstrate that the criminal charges resulted in dismissal, a nolle prosequi, or an acquittal of the petitioner in the Court of Common Pleas, the Petition for Expungement of Criminal Record cannot be granted at this time.
Petitioner seeks expungement of all records relating to an April 25, 2005 arrest for Assault Second Degree, Conspiracy Second Degree, Burglary Second Degree, Possession of a Deadly Weapon During the Commission of a Felony, and Offensive Touching. The charges were ultimately nolle prossed in Superior Court, but two of the charges were reduced and re-filed in the Court of Common Pleas. The final disposition of the charges in the Court of Common pleas is not on file with the State Bureau of Identification, whose records state "disposition unknown".
Petition for Expungement of Criminal Record D.I. 1.
The reduced charges filed in the Court of Common Pleas were Assault Third Degree and Criminal Trespass First Degree.
State's Response to Petition for Expungement, D.I. 2. The Court notes that this notation by the State Bureau of Identification of "disposition unknown" frequently occurs in Petition for Expungement of Arrest Records cases.
Petitioner contends that the petition should be granted because "the ability of a citizen, or his counsel, to negotiate the world of DELJIS . . . is virtually non-existent." Furthermore, Petitioner asserts that "the State is not in a position to offer factually-based opposition . . . and because of an unwillingness or `it's too much trouble' philosophy chooses to take `the easy way out [to itself research the disposition of the Court of Common Pleas charges].'"
Pet'r. July 2, 2007 letter, D.I. 5.
Id.
The State responds by arguing that the burden of proof rests with the moving party. The State asserts that "[t]he burden of proving every essential fact and element of the cause of action is on the person bringing the proceeding." The State contends that, despite Petitioner's unwillingness to obtain the final disposition, "record of the final disposition [of the Court of Common Pleas charges] exists in the court records." The State argues that even though the State Bureau of Identification has a notation of "disposition unknown," the information required by Petitioner does exist and Petitioner has failed to meet his burden of proof by obtaining the required information.
The State only contests (on procedural grounds, at this juncture) the expungement of Assault Third Degree and Criminal Trespass First Degree, which were transferred to the Court of Common Pleas.
State's July 17, 2007 letter, D.I. 7.
Id.
The State's Response to Petition for Expungement indicates that the State would favorably consider the request for expungement when, and if, Petitioner can meet his burden of proof.
In civil cases, the burden of proof rests upon the moving party. Because a Petition for Expungement of Criminal Record is a civil matter, the burden of proof rests upon the plaintiff or person making the allegations. If a petitioner fails to meet the burden of proof, petitioner cannot prevail. Therefore, Petitioner carries the burden of proving every essential fact and element of the cause of action.
Oberly v. Kirby, 592 A.2d 445, 457 (Del. 1991) (citing Oberly v. Howard Hughes Med. Inst., 472 A.2d 366, 386 (Del.Ch. 1984)). See also 1 Wayne R. LaFave, et al., Search and Seizure § 1.11(b) (3d ed. 1996) (discussing the conflicting interests between the State and a petitioner, and suggesting a petitioner has the most to gain from the expungement of a criminal record).
Williametz v. Guida-Seibert Dairy Co., 254 A.2d 473, 477 (Conn. 1968).
Ex Parte Munoz, 139 S.W.3d 349, 351 (Tex.App. 2004) ("[A]n expunction proceeding is a civil proceeding, in which the petitioner bears the burden of proof in meeting the statutory requirements.").
In this Petition for Expungement of Criminal Record, Petitioner has failed to meet the burden of proof because Petitioner failed "[to] file a petition setting forth the relevant facts and requesting expungement of the police record, and the court records relating to the charge." Petitioner is required to demonstrate that the charges in the Court of Common Pleas terminated in Petitioner's favor. This he has failed to do. The Court recognizes that, in at least some instances, obtaining a final disposition of a criminal charge may be less "trouble" for the State than for a petitioner, but the burden of establishing entitlement to expungement of an arrest record, as a technical matter, rests with the petitioner. Although Petitioner alleges that the information requested is unattainable because of the difficulty in navigating the DELJIS system, there are other methods of obtaining the final disposition of a case in the Court of Common Pleas. Therefore, because Petitioner has failed to meet his burden of proof, the Court cannot grant the Petition for Expungement of Criminal Record at this time, but will reconsider the motion when, and if, Petitioner is able to meet the burden of proof.
11 Del. C. § 4372(a)(2).
Petitioner should submit the further appropriate records in support of his petition by August 20, 2007; if no such records are received, the Court will deny the petition.
IT IS SO ORDERED.