State v. Fitzgerald

• Court: Superior Court of Delaware
• Decided: January 3, 2024
• Docket: 23X-00700
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JASON FITZGERALD ) ) Appellant-Petitioner, ) v. ) ID No. 23X-00700 ) STATE OF DELAWARE, ) ) Respondent. ) )

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

ORDER

Upon consideration of Petitioner Jason Fitzgerald’s (“Fitzgerald”) Appeal

from the Commissioner’s Order Denying Expungement (“Appeal”), the State’s

Response, statutory and decisional law, and the record, IT APPEARS THAT:

(1) On November 8, 2021, Fitzgerald pled guilty to Attempted Assault

Second Degree and was sentenced that same day to 8 years at Level V suspended

for one year Level III probation.

(2) On April 6, 2022, Fitzgerald appealed his conviction to the Delaware

Supreme Court where it was dismissed as untimely on April 21, 2022.1

(3) On March 8, 2022, Fitzgerald filed a Petition for Expungement of

Criminal Record (“Petition”) in which he claimed he was “forced to take a plea” due

1 Fitzgerald v. State, 2022 WL 1211533, at *1 (Del. Apr. 21, 2022). 1 to COVID-19 and the threat of homelessness. He also claimed he suffered a “wrong

conviction” which resulted in failed background checks and an inability to find

employment.

(4) The State filed another response to Fitzgerald’s Petition on August 3,

2023, claiming Fitzgerald was statutorily ineligible for expungement pursuant to 11

Del. C. § 4374(a)(3) and 11 Del. C. § 4374(b)(1).

(5) On October 31, 2023, after reviewing the Petition and State’s response,

the Commissioner issued an order denying Fitzgerald’s Petition on the basis that it

is statutorily barred.

(6) On November 8, 2023, Fitzgerald appealed the Commissioner’s Order

once again arguing that because his plea was coerced and his conviction was

“wrongful,” his Petition should be granted.

(7) The State filed a response on December 8, 2023, reiterating its

argument that Fitzgerald is statutorily barred from expungement.

(8) Under Superior Court Civil Rule 132(a)(4)(iv), the Court will engage

in a de novo review of a case-dispositive order issued by a commissioner.2 De novo

review will be given to any “specified portions, proposed findings of fact, or

recommendations to which an objection is made.”3

2 Super. Ct. Civ. R. 132(a)(4)(iv). 3 New Castle County v. Kostyshyn, 2014 WL 1347745, at *1 (Del. Super. Apr. 4, 2014). 2 (9) Under 11 Del. C. § 4374(a)(3), a defendant may petition the court for

an expungement if they were “convicted of a felony or at least 7 years have passed

since the date of conviction or the date released from incarceration, whichever is

later, and the person has no prior or subsequent convictions.”4

(10) Fitzgerald was convicted and released in 2022, making his Petition for

expungement unripe and statutorily barred under 11 Del. C. § 4374(a)(3).

(11) Further, Fitzgerald was convicted of Assault Second Degree which is a

Title 11 Felony listed under 11 Del. C. § 4201(c), making him ineligible for any

discretionary expungement by the Court.5

(12) Fitzgerald is statutorily barred from expungement under 11 Del. C. §

4374(a)(3) and 11 Del. C. § 4374(b)(1), and therefore the Commissioner’s Order

must be affirmed.

NOW, THEREFORE, IT IS HEREBY ORDERED that the

Commissioner’s Order Denying Expungement is AFFIRMED.

IT IS SO ORDERED.

/s/ Jan R. Jurden Jan R. Jurden, President Judge

4 11 Del. C. § 4374(a)(3). 5 11 Del. C. § 4374(b)(1). 3 cc: Original to Prothonotary Allison Abessinio, DAG Jason Fitzgerald