Rule 36. Petition to Seal or Expunge

All petitions for expungement shall be filed in writing to the court. A petition is filed by the petitioner, and only by the petitioner, through the expungement route of the electronic filing system. The general filing channel accepts no petition for expungement, and no petition transmitted through it shall be received.

The petition shall provide the grounds on which it requests the expungement or sealing of a record, and the records which it seeks to have sealed.

The petition shall be supported by the petitioner’s sworn statement, attesting that the petitioner is eligible for an expunction in accordance with state law.

An expungement proceeding shall initiate within seven (7) days of the filing of an expungement petition, as 6 R. Stat. § 131.601 requires. The proceeding initiates upon the holding of the hearing prescribed by Rule 37.

Upon the acceptance of a petition, the clerk shall present it to a judge of the shared expungement queue, who shall set the hearing and cause the setting to be entered upon the docket.

The electronic filing system computes no period and issues no reminder. The period prescribed by this subdivision is enforced upon the motion of the petitioner or upon the court’s own initiative. A failure to hold the hearing within seven (7) days does not entitle the petitioner to the relief sought and is not a ground for granting the petition.

Class I. A person who possesses ten (10) or fewer arrest-based criminal records and no conviction-based criminal records is eligible to petition to expunge that person’s criminal history record if, as 6 R. Stat. § 131.603 requires:

Class II. A person who possesses sixty (60) or fewer arrest-based criminal records and no conviction-based criminal records is eligible upon the same demonstrations, except that the person shall not have committed, been arrested for, or been charged with any crime within the last thirty (30) days, as 6 R. Stat. § 131.604 requires.

Class III. A person who possesses more than sixty (60) arrest-based criminal records and no conviction-based criminal records is eligible upon the same demonstrations, except that the person shall not have committed, been arrested for, or been charged with any crime within the last sixty (60) days, as 6 R. Stat. § 131.605 requires.

Infraction Expungement. A person who possesses any amount of civil infractions, no arrest-based criminal records, and no conviction-based criminal records is eligible to petition for the removal of that person’s infractions if the person has not committed, been arrested for, or been charged with any crime within the last ten (10) days, and has not received any additional civil infraction within the last seven (7) days, as 6 R. Stat. § 131.606 requires.

Expungement of Convictions. A person adjudicated guilty in a court of law is eligible to petition to expunge that person’s criminal history record if, as 6 R. Stat. § 131.607 requires:

The class of a petition is determined by the number of arrest-based criminal records the petitioner possesses at the time the petition is filed.

A petitioner who possesses any conviction-based criminal record is not eligible under Class I, Class II, or Class III, and shall proceed under Rule 36(6)(e).

A petitioner who possesses any arrest-based criminal record is not eligible for infraction expungement under Rule 36(6)(d).

A petition that states the wrong class is not thereby void. The court shall determine the correct class upon the record and shall apply the requirements of that class, provided that the court shall not grant relief the petitioner is not eligible to receive.

The username of the petitioner;

The class of expungement sought, designated as Class I, Class II, Class III, infraction expungement, or expungement of convictions;

Each record sought to be expunged, identifying for each the offense or infraction, the date, the arresting or citing agency and the officer where known, the case number where a case was opened, and the disposition;

The total number of arrest-based criminal records and the total number of conviction-based criminal records the petitioner possesses;

The date on which the petitioner most recently committed a crime, was arrested, or was charged, and, upon a petition for infraction expungement, the date of the most recent civil infraction;

The grounds upon which the expungement or sealing is requested;

The facts demonstrating that the petitioner is in good standing with the community;

The facts demonstrating that the petitioner is capable of engaging within the community lawfully; and

Whether the petitioner has previously petitioned for expungement, and the disposition of each prior petition.

Class II and Class III. The petition shall state whether the petitioner is willing to undertake a community service program as a condition of a conditional expungement under 6 R. Stat. § 131.602, and may propose a program.

Expungement of Convictions. The petition shall state, for each conviction, the case number and the Bates number of the filing in which the judgment and sentence were entered; the expungement period imposed at sentencing under 6 R. Stat. § 131.312 or provided by statute, and the date upon which that period expired; and whether the petitioner has received executive clemency, which is not an expungement.

Infraction Expungement. The petition shall enumerate each civil infraction sought to be removed, with the date, the citing agency, and the disposition of each.

The petitioner’s sworn statement attesting eligibility is made by the electronic signature transmitted with the petition, which constitutes the petitioner’s declaration under penalty of perjury under the laws of the State of Ridgeway, as Rule 32(9) provides. No notarial act is required, and none shall be demanded.

The clerk of the Superior Court or a deputy clerk may administer an oath to the petitioner under 3 R. Stat. § 131.104 where the court so directs, but such an oath is in addition to and not in substitution for the declaration made by the electronic signature.

A petitioner who willfully subscribes as true any material matter which the petitioner does not believe to be true is subject to prosecution under R.C.C. § 2.10. Upon finding that a petition contains a material false statement, the court shall deny the petition and may refer the matter to the Attorney General.

In all expungement proceedings, an attorney for the government shall be afforded the opportunity to respond to the petition and to provide the court with evidence on any issue of fact which is necessary to rule on the petition.

Upon acceptance of a petition, the clerk shall cause notice of the petition and of the hearing to be given to the Attorney General’s office.

The attorney for the government exercises the opportunity to respond at the hearing prescribed by Rule 37. Where the attorney for the government is a participant in the matter, a written response may also be filed. No written response is required, and the absence of one is not a concession.

The attorney for the government is not a party to an expungement proceeding, and the government’s opposition does not convert the proceeding into an adversary proceeding.

The petitioner shall be allowed to rebut the argument of the State, as 6 R. Stat. § 131.601 requires.

A state judge, upon the sentencing phase of a criminal proceeding, may impose a period that the convicted person must wait to expunge the conviction. No period imposed shall exceed six (6) months, as 6 R. Stat. § 131.312 provides.

The period runs from the imposition of sentence and is computed as Rule 46 provides.

A petition to expunge a conviction filed before the expiration of the period imposed at sentencing, or before the expiration of any period defined in statute, shall be denied without prejudice, and the order of denial shall state the date upon which the period expires.

Where no period was imposed at sentencing and no statute defines one, the requirement of 6 R. Stat. § 131.607(a) is satisfied upon the entry of the judgment.

A period imposed at sentencing may be revised under Rule 29 within the periods that rule prescribes, and a period exceeding six (6) months is an illegal sentence within the meaning of Rule 29(2)(d).

Pre-Trial Detention Upon Acquittal. A person found not guilty of an offense is entitled to an expungement of the pre-trial detention record arising from that offense, as 6 R. Stat. § 131.202(a) provides. A petition seeking that relief may be filed at any time, states the acquittal and the detention record sought to be expunged, and is not subject to the class thresholds or waiting periods of Rule 36(6).

Vacated Arrest. Where the Attorney General moves to vacate an arrest under Rule 38.2, the court shall issue an expungement of the offense record vacated. No petition under this rule is required, no class applies, and no waiting period and no condition of community service shall be imposed.

Arrest Lacking Probable Cause. Where the court finds at a first appearance that the arrest lacks probable cause, it shall release the person from custody and shall expunge the arrest from that person’s record, as 6 R. Stat. § 131.204(a)(3) requires and Rule 3.1(7)(b) provides. The expungement is entered by the court upon its own determination. No petition under this rule is required, no class applies, no waiting period applies, no condition of community service shall be imposed, and no motion of the Attorney General under Rule 38.2 is required.

A record of an offense for which a criminal proceeding is pending shall not be expunged, the eligibility requirements of Rule 36(6) being unsatisfied while a charge is pending.

Executive clemency shall not be interpreted to act as the expungement of a criminal offense, as 6 R. Stat. § 131.609(a) provides, and a decree of clemency is not a record subject to expungement under this rule.

An expungement does not reach any filing, document, or docket entry of the electronic filing system. Rule 38(6) governs.

A petition is not amended and is not withdrawn. A defective petition is cured by a corrected refiling through the expungement route, which bears its own filing date and does not relate back.

The petitioner may move the court to dismiss the petition. A dismissal ends the proceeding; it does not remove the petition or any document from the record.

A petition denied without prejudice may be refiled as soon as the ground of denial is cured.

A petition denied upon the merits may be refiled only after the waiting period applicable to the petitioner’s class has again run from the date of the denial, unless the court’s order provides otherwise.