State v. Brown

• Court: Superior Court of Delaware
• Decided: January 3, 2024
• Docket: N23X-00672
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KEVIN L. BROWN, ) ) Petitioner, ) ) v. ) C.A. No. N23X-00672 ) STATE OF DELAWARE, ) ) Respondent. )

Submitted: December 8, 2023 Decided: January 3, 2024

On Appellant-Petitioner’s Appeal from Commissioner’s Order Denying Expungement RECOMMITTED TO THE COMMISSIONER WITH INSTRUCTIONS

ORDER

Eliza M. Hirst, Esquire, Assistant Public Defender; Attorney for Appellant-Petitioner

Abolore J. Oshodi, Esquire, Deputy Attorney General; Attorney for Appellee-Respondent

JOHNSTON, J. 1. By Order dated August 23, 2023, Commissioner O’Connor denied

Petitioner Kevin L. Brown’s Petition for Expungement of Criminal Record.

2. The Petition for Expungement, filed on February 14, 2023, had sought a

discretionary expungement pursuant to 11 Del. C. § 4374(a)(2) for a single case from

2001, invoking the “manifest injustice” standard, as well as a mandatory

expungement pursuant to 11 Del. C. § 4373 for violations and cases terminated in

his favor.

3. In his Order (proposed findings of fact and recommendations under

Superior Court Civil Rule 132(a)(4)(i)), the Commissioner declined the Petitioner’s

request for discretionary expungement based upon the Petitioner having an out-of-

state conviction, namely, a 1991 conviction in the Commonwealth of Pennsylvania

(Firearm Carried Without a License). The Commissioner concluded that the

Petitioner had not satisfied the “manifest injustice” standard, holding in pertinent

part: “Specifically, Petitioner’s Pennsylvania Firearm conviction will nonetheless

remain an obstacle in being approved for assisting in his son’s school or coaching a

sport’s team, and may also impact his ability to maintain his lease. Because this

Court’s Order for Expungement would not eliminate all of Petitioner’s criminal

history, Petitioner cannot demonstrate manifest injustice in the continued existence

and possible dissemination of his criminal record.” Order, at 2-3 (citation omitted)

(emphasis in original). 4. The Order did not explicitly address Petitioner’s request for mandatory

expungement.

5. Petitioner has appealed the Commissioner’s Order, requesting that the

Court reverse the Order and grant the Petition for Expungement or, in the alternative,

grant the mandatory expungement portion of the petition and remand the

discretionary portion for consideration on the merits.

6. The State did not serve a written response to the appeal.

7. Superior Civil Rule 132(a)(4)(iv) provides: “A judge of the Court shall

make a de novo determination of those portions of the report or specified proposed

findings of fact or recommendations to which an objection is made. A judge may

accept, reject, or modify, in whole or in part, the findings or recommendations made

by the Commissioner. A judge may also receive further evidence or recommit the

matter to the Commissioner with instructions.”

8. By en Banc ruling dated December 8, 2023, the Delaware Supreme Court

reversed and remanded the denial of three petitions for expungement where the

denials had been based upon out-of-state convictions. Osgood v. State, 2023 WL

8532754, at * 8 (Del.). The Majority held the the reference to “no prior or

subsequent convictions” in 11 Del. C. §§ 4373(a)(2) and 4374(a) refers only to

Delaware convictions, not to out-of-state convictions. Id. at *4. With regard to a

petitioner with an out-of-state conviction: “A petitioner in this circumstance would

still have their out-of-state record [sic] criminal record. And for discretionary expungement, the petitioner’s extraterritorial criminality remains ‘fair game” for the

merits of their discretionary appeal. The petitioner must demonstrate manifest

injustice by a preponderance of the evidence.” Id. at *8 (citation omitted). Finally,

the Majority observed: “But the Expungement Statutes themselves do not

contemplate complete elimination of a petitioner’s criminal history. The General

Assembly recognized that some prior and subsequent arrests or convictions might

remain part of a Delaware criminal record, but they should not be a barrier to some

relief.” Id. (citations omitted).

9. Under the circumstances, it is appropriate that I recommit the matter to

Commissioner O’Connor with the following instructions:

(a) That, within forty-five (60) days of the date of this Order, the

Commissioner reconsider his previous ruling regarding discretionary expungement

in light of the holding of the Osgood court, as described above, and report to this

Court the results of that reconsideration; and

(b) That, within the same time period, he report to this Court his proposed

findings of fact and recommendations with regard to the mandatory expungement

relief that Petitioner has requested.

IT IS SO ORDERED.

/s/ Mary M. Johnston The Honorable Mary M. Johnston