A. Civil Rights
The Indiana Constitution authorizes the legislature to pass laws disenfranchising those convicted of an “infamous crime.” Ind. Const. art. 2, § 8 (“The General Assembly shall have power to deprive of the right of suffrage, and to render ineligible, any person convicted of an infamous crime.”).1 In addition, Indiana law provides that a person who has been imprisoned following conviction of a “crime” may not vote until release from incarceration or other lawful detention. Ind. Code § 3-7-13-4. See Snyder v. King, 958 N.E.2d 764, 785-86 (Ind. 2011)(holding that “the Indiana General Assembly has authority under its general police power to disenfranchise persons incarcerated upon conviction of a crime, so long as the disenfranchisement lasts only for the duration of incarceration”).
A person who “has had the right to vote revoked by reason of a felony conviction and the right has not been restored” is disqualified from jury service; the right to serve as a juror is automatically restored upon restoration of the right to vote. Ind. Code § 33-28-5-18.
A person convicted of a felony, or who pled guilty or nolo contendere, is disqualified from holding or being a candidate for elected office. § 3-8-1-5(c)(3). Whenever a person is convicted of misdemeanor violation of the laws against bribery, conflict of interest, and official misconduct, the sentencing court may include in the sentence an order rendering the person ineligible to hold office of profit or trust for a period not to exceed 10 years. § 35-50-5-1.1(a). Disabilities affecting the right to hold office may be removed by expungement under Ind. Code § 35-38-9 (see Part II, infra) or by pardon.
Indiana’s laws relating to gun possession by convicted persons appear to bar possession of handguns only. See, e.g., Ind. Code § 35-47-2-3(g)(1)(license to carry a handgun shall not issue to anyone convicted of a felony). Under these laws, those convicted of a felony or of domestic battery are barred from handgun licensure. §§ 35-47-2-3(g)(1), 35-47-2-1(c), 35-47-4-7(a). Restoration by expungement, §§ 35-38-9-10(b), or by governor’s pardon if 15 years have passed since commission of the offense. § 35-47-2-20. The governor may issue a conditional pardon under § 11-9-2-4, which will remove the handgun disability “if the superintendent [of State Police] determines after an investigation that circumstances have changed since the pardoned conviction was entered to such an extent that the pardoned person is likely to handle handguns in compliance with the law.” § 35-47-2-20. A person convicted of domestic violence may petition the court five years after conviction to regain firearms privileges. § 35-47-4-7-(b).
Discretionary Restoration Mechanisms
A. Executive pardon
The constitution gives pardon power to the governor, “subject to such regulations as may be provided by law.” It also authorizes the legislature to create a “council composed of officers of state, without whose advice and consent the Governor may not grant pardons.” Const. art. 5, § 17. In 1980, the legislature abolished the Commission on Clemency, and gave the Parole Board authority to review applications and make advisory recommendations to the governor regarding applications for pardons, commutations, and reprieves. See Ind. Code §§ 11-9-2-1 to 11-9-2-3. While there is a statutory requirement that all applications for pardon be filed with the Board, § 11-9-2-1, there is also a specific disclaimer of any intent to limit the constitutional power of the Governor. § 11-9-2-3.2 The constitution requires the governor to report to the legislature his pardons at next scheduled meeting. Ind. Const. art. 5, § 17.
The Parole Board consists of five members appointed by the governor to four-year terms. Not more than three of these members may be from same party. Code § 11-9-1-1(a). The Parole Board members are full-time salaried employees.
Recent governors have required a 5-year waiting period and evidence of rehabilitation. A person convicted under the laws of another state or by the federal government is ineligible for a pardon. Firearms disability relieved only after 15 years.
The Indiana Supreme Court has held that pardon essentially wipes out both the punishment prescribed for the offense and the guilt of the offender. Kelley v. State, 185 N.E. 453, 458-59 (Ind. 1933). Based on the Supreme Court’s holding in Kelley, the Indiana Court of Appeals has found that a pardon provides automatic grounds for judicial expungement. See State v. Bergman, 558 N.E.2d 1111 (Ind. Ct. App. 1990). A pardon removes firearm disabilities, except for crimes against the person, “if fifteen (15) years have elapsed between the time of the offense and the application for a license under this chapter.” Code § 35-47-2-20(a). In addition, a pardon may be issued that is conditional upon a determination by the Superintendent of State Police that the person is “likely to handle handguns in compliance with the law.” § 11-9-2-4. If that determination is made in conjunction with such a conditional pardon, the firearms disability is removed. §§ 11-9-2-4, 35-47-2-20(b).
The governor in recent years has relied on the Parole Board for all pardon investigations and accepts a majority of its recommendations (which, if true, suggests that it recommends very few). Applications are filed in the first instance with the Parole Board. Instructions and application forms are at http://www.in.gov/idoc/files/online_pardon_packet.pdf. The Indiana pardon process is described in detail at http://www.pardon411.com/wiki/Indiana_Pardon_Information.
By statute, the Parole Board must: 1) notify the victim, sentencing court, and prosecuting attorney; 2) conduct an investigation; and 3) conduct a hearing at which the petitioner and other interested parties are given an opportunity to present their position. Ind. Code § 11-9-2-2(b). Whenever the Parole Board is conducting an inquiry, investigation, hearing, or review, it may delegate that function to one or more members of the Board. § 11-9-1-3(a). If one or more member acts on behalf of the Board, he or she may exercise all the powers of the Board except the power to render a final decision. § 11-9-1-3(b). Upon completion of the inquiry, the member acting on behalf of the Board files the complete record of the proceedings together with his or her findings, conclusions, and recommended decision. Based upon the record and the findings, conclusions, and recommendations, the Board renders a final decision. Id. In making its recommendation to the governor, the board must consider: “1) the nature and circumstances of the crime for which the offender is committed, and the offender’s participation in that crime; 2) the offender’s prior criminal record; 3) the offender’s conduct and attitude during commitment; and 4) the best interests of society.” 220 Ind. Admin. Code 1.1-4-4(d). Additionally, in making its recommendation to the governor, the board may consider other issues relating to the offender and his rehabilitation. 1.1-4-4(e). This process takes six to eight months to complete.
Frequency of Grants
Mike Pence granted his only three pardons in January 2015. Governor Mitch Daniels (2005-2013) granted 62 pardons during his eight years in office, generally pursuant to favorable Board recommendations. Several pardons went to non-citizens seeking to avoid deportation, and many to minor drug offenders (though only three to those convicted of selling drugs). See Executive Order archives, http://www.in.gov/gov/3635.htm. In the seven-year period between 1997 and 2004, 129 pardons were granted, and a high percentage of those who applied were granted.3 Source: Indiana Parole Board.
B. Judicial expungement and sealing
1. Expungement and sealing
A comprehensive new law enacted in May 2013 authorized “expungement” of all but the most serious violent and sexual offenses, and in addition “sealing” of non-conviction records and minor offenses that have been expunged. See Ind. Code § 35-38-9.4 (The term “expungement” is not defined except by its practical effect, which involves restricting the use of records that have been expunged, as further explained below.) Expungement is available after a waiting period that varies depending upon the seriousness of the offense, and is mandatory where eligibility criteria are met for non-conviction records, misdemeanors and less serious felonies.5 Even where expungement is discretionary, relief may not be denied based on non-statutory criteria where “all evidence presented to the trial court militated toward expungement.” 6
As explained below, non-conviction records and records of misdemeanors and minor felonies are “sealed” upon expungement, which limits public access without a court order. While the records of more serious felonies “remain public” after expungement, there are limits on the uses to which they may be put. A petitioner must have completed the terms of a court-imposed sentence, and may not waive the right to seek expungement as part of a plea agreement. The law was amended in March 2014 and June 2015 to add certain procedural provisions and modify eligibility requirements.7
Non-conviction records and vacated convictions
After one year, non-conviction records (including non-adjudication records in juvenile cases), and records of convictions vacated on appeal may be expunged and sealed by the circuit or superior court in the county where the charges were filed, or, if no charges were filed, in the county of arrest. § 35-38-9-1. Once records are sealed under this provision, no information concerning the arrest or charges may be retained in “any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional, or statewide law enforcement agency,” with the exception of non-public internal law enforcement documents created at the time of arrest. § 35-38-9-1(f). All court records, including those of appellate courts, must be permanently sealed or redacted. Id. Official online versions of opinions and memorandum decisions of the supreme court and court of appeals must also be redacted.
Misdemeanors and low-level felonies
After waiting periods ranging from five to eight years, records of most misdemeanors and Class D felonies or level 6 felonies may be expunged, and are then automatically sealed and, with some exceptions, may not be disclosed even to a prosecutor, unless ordered by the court. Ind. Code §§ 35-38-9-2, -3, -6(a).8 If sealed records are unsealed upon request of a prosecutor to use in a subsequent prosecution of the person, or to a defense attorney, they shall be resealed at the earliest possible time if the person is not convicted, but need not be resealed if a new conviction results. § 35-38-9-6(d).
Most serious felonies may also be expunged, with certain exceptions (e.g., offenses involving sexual offenses), after waiting periods of eight or ten crime-free years from date of conviction, or three-to-five years from completion of sentence, but they are not sealed. See § 35-38-9-4, -5. The record of more serious felonies “remain public” after expungement, although they must be “clearly and visibly marked or identified as being expunged.” § 35-38-9-7. Expungement of these more serious felonies is discretionary, (and in the case of offenses committed while holding elective office and offenses “resulting in serious bodily injury,” may not be granted without the prosecutor’s consent, see § 35-38-9-5), although “[t]he expungement statutes are inherently remedial and, as such, should be liberally construed to advance the remedy for which they were enacted.” See Cline v. State, 38A04-1512-XP-2221 (Ind.Ct.App. 2016), supra, quoting from Taylor v. State, 7 N .E.3d 362 (Ind.Ct.App.2014).9
Eligibility waiting periods
A petition for expungement may be granted only after completion of sentence (including payment of fines and restitution) and only if the person has no pending criminal charges or existing/pending drivers’ license suspensions. See, e.g., Ind. Code § 35-38-9-2(e). Expungement is not available to any person who has been previously convicted of two or more felonies involving unlawful use of a deadly weapon. §§ 35-38-9-2(b), -3(b)(6), -4(b)(6), -5(b)(4). Persons convicted of misdemeanors or the lowest level felonies are eligible to petition for expungement five years after conviction (unless the prosecutor consents to a shorter period). Id. Persons convicted of less serious felonies may apply for expungement eight years after conviction or three years after completion of sentence whichever is later (unless the prosecutor consents to a shorter period), if the crime was not committed while holding elective office and did not involve sex or violence. §§ 35-38-9-2 through -4. Felonies committed while holding elective office or involving serious bodily harm may be expunged ten years after conviction, or five years after completion of sentence. Offenses involving human/sex trafficking, sex crimes, and certain violent crimes are not eligible for expungement. § 35-38-9-5(b).
Procedures and scope of relief
Procedures for filing an expungement petition with the sentencing court are set forth in Ind. Code § 35-38-9-8. Expungement may be granted without a hearing unless the prosecutor objects. § 35-38-9-9(a). A petitioner may seek to expunge multiple convictions in multiple courts, but all petitions must be filed within one year — after that year has passed, a person may not file another petition in their lifetime. § 35-38-9-9(h). Two exceptions apply: 1) If a petition for mandatory expungement is denied in whole or part, it may be amended and refiled at a later date once eligibility requirements are met (an additional three-year waiting period applies for discretionary expungement), § 35-38-9-9(i);10 2) After the one year filing period has passed, a person may file an amended petition seeking expungement of an additional conviction if that conviction’s omission from the original petition was the result of “excusable neglect” or “circumstances beyond the petitioner’s control,” § 35-38-9-9(j). Those filing for expungement must pay the filing fees required for filing a civil action ($141), though those fees may be reduced or waived for indigent petitioners. § 35-38-9-8(d). There is no filing fee requirement for petitions to expungement non-conviction records. § 35-38-9-1(c). An expungement case, and all documents filed in the case become confidential only after the court issues the order granting the petition. § 35-38-9-10(i). The Indiana courts have published sample petitions for expungement at http://www.in.gov/judiciary/2706.htm.
Effect of expungement
Restoration of rights: Civil rights, including voting rights and eligibility for public office and jury service, are restored upon expungement, as are firearm rights (“to the extent not prohibited by federal law”). § 35-38-9-10(b).
Discrimination: “It is unlawful discrimination for any person to” refuse to employ, admit or license or “otherwise discriminate against” a person because of a conviction or arrest record that has been expunged or sealed. § 35-38-9-10(a). A person whose record is expunged shall be treated “as if the person had never been convicted of the offense,” except that an expunged conviction may be considered in imposing sentence in the event of a subsequent conviction. § 35-38-9-10(d). Any person that so discriminates commits a Class C infraction and may be held in contempt by the court issuing the order of expungement or by any other court of general jurisdiction. §35-38-9-10(e).
Employer inquiry: In any application for employment, license or “other right or privilege, a person may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests, such as: ‘Have you ever been arrested for or convicted of a crime that has not been expunged by a court?’” § 35-38-9-10(c).
Negligent hiring: In any action alleging negligence an expungement order may be introduced as evidence of due care, and expunged convictions are not admissible as evidence of negligence against a person who relied on the expungement order. § 35-38-9-10(f) and (g).
Public access to records: The records of convictions that have been expunged and sealed are not generally available to the public, or to prosecutors without a court order. The records of convictions that have been expunged but not sealed “remain public,” although they must be “clearly and visibly marked or identified as being expunged.” § 35-38-9-7.
Credit reporting: Convictions that have been expunged may not be reported by credit reporting companies. See § 24-4-18-6(a).
Exceptions: Expungement orders do not affect sex offender registration or driver’s license suspension. § 35-38-9-6(e), -7(b). Expungement orders do not automatically restore firearms rights to persons convicted of domestic violence, who must wait five years before petitioning the court for restoration.
2. Felony knocked down to misdemeanor
Certain Class D felonies committed prior to July 1, 2014, or level 6 felonies committed after that date, may be converted to Class A misdemeanors upon entry of judgment on a one-time basis (DV and child pornography offenses are ineligible). Ind. Stat. § 35-50-2-7(c). In addition, court may convert conviction of Class D felony (or level 6 felony) to a Class A misdemeanor upon petition of the convicted person three years after completion of sentence, upon satisfaction of certain conditions and with the agreement of the prosecutor, as long as there has been no intervening conviction. Ind. Code § 35-50-2-7(d). Sex offenses and offenses involving violence or official corruption are not eligible. If a person whose Class D felony conviction has been converted to a Class A misdemeanor conviction under subsection (c) is convicted of a felony within five (5) years after the conversion under subsection (c), the prosecuting attorney may petition a court to convert the person’s Class A misdemeanor conviction back to a Class D felony conviction. § 35-50-7-2 (e). Expungement and sealing of records that have been converted is governed by § 35-38-9-2, discussed above.
3. Expungement of pardoned convictions
The Indiana courts have recognized the court’s ability for judicial expungement following a pardon (discussed above). See State v. Bergman, 558 N.E.2d 1111 (Ind. Ct. App. 1990).
4. Deferred prosecution/adjudication
Indiana law authorizes deferral or continuance of prosecution for drug abusers and alcoholics charged with less serious felonies, if they have no more than one prior conviction and no other charges pending. See Ind. Code §§ 12-23-6.1-1, 12-23-7-1 et seq. The defendant “must waive a jury trial and consent to a trial by the court or must enter a guilty plea, with the general finding to be entered by the court to be deferred until the time that prosecution may be resumed.” § 12-23-7-2. If the treatment is completed successfully, the charges must be dismissed. § 12-23-7-11. See also State v. Nix, 833 N.E. 2d 541 (Ind. Ct. App. 2005). With the consent of the defendant and the prosecuting attorney, a court may defer prosecution for up to one year for a defendant charged with a misdemeanor or infraction in which the use of alcohol or drugs was a contributing factor or material element of the offense or the defendant’s mental illness was a contributing factor, Ind. Code § 12-23-5-1 et seq. The court may order the defendant to satisfactorily complete an alcohol or drug treatment program, undergo treatment for mental illness, or satisfy other conditions imposed by the court during this deferral period. § 12-23-5-2. If the defendant fulfills the conditions set forth by the court, the court shall dismiss the charges. § 12-23-5-4. A defendant is not eligible for deferral under this section if the offense giving rise to the prosecution involved a death or serious bodily injury, the defendant has at least two prior felony convictions, or other criminal proceedings (not arising out of the same incident) alleging the commission of a felony are pending against the defendant. § 12-23-5-7.
5. Juvenile adjudications
Expungement is governed by Ind. Code § 31-39-8-2. At any time, a person may petition the juvenile court to expunge all records pertaining to juvenile delinquency proceedings. Id. In reviewing the petition, the court considers numerous factors, including the nature of the offense, case disposition, and the person’s current status. § 31-39-8-3. Upon a court order of expungement, all records are destroyed or given to the petitioner. § 31-39-8-6. There exists no statutory authority to seal a juvenile record.
C. Administrative Sealing
The state police may disclose “limited criminal history” records to noncriminal justice agencies for a variety of purposes, including where the subject of the records has applied for employment and licensing, or has been convicted of specified sexual offenses. Ind. Code § 10-13-3-27(a) and (b). “Limited criminal history” does not include arrest records that do not indicate a disposition more than one year after the arrest. § 10-13-3-11 (defining “limited criminal history”). Any person who knowingly or intentionally uses limited criminal history for any purpose not specified under this section commits a Class A misdemeanor. § 10-13-3-27(c).
Fifteen years after discharge from probation, imprisonment, or parole (whichever is later), a felony offender may petition the state police department to limit access to his criminal history to criminal justice agencies. Ind. Code § 35-38-5-5(b). “When a petition is filed [the state police department] shall not release limited criminal history to non-criminal justice agencies.” § 35-38-5-5(c). Records remain available if a person has volunteered services that involve contact with, care of, or supervision over a child who is being placed, matched, or monitored by a social services agency or a nonprofit corporation, or is being sought by the parent locator service of the child support bureau of the department of child services. § 35-38-5-5(a), citing § 10-13-3-27(a)(8) and (12).
III. Nondiscrimination in Licensing and Employment
Except for serious drug offenses, “a license or certificate of registration that an individual is required by law to hold to engage in a business, profession, or occupation may not be denied, revoked, or suspended because the applicant or holder has been convicted of a crime.” Ind. Code § 25-1-1.1-1. The acts resulting in conviction “may, however, be considered as to whether the applicant or holder should be entrusted to serve the public in a specific capacity.” Id. The purpose of this provision, which forbids agencies to use felony or misdemeanor convictions as the sole basis for denial of a license application, is to require that the nature of the acts underlying a prior conviction be explored and that these acts be related to both a specific statutory requirement and to the occupation or profession for which a license is sought. Ind. Bd. Registration and Ed. for Health Facility Adm’rs v. Cummings, 387 N.E.2d 491 (Ind. Ct. App. 1979). Drug offenses are excepted from this requirement, see § 25-1-1.1-2, and certain serious drug offenses are grounds for mandatory revocation or denial. See § 25-1-1.1-3. Under Rule 12 Section 2 of the Indiana Rules for Admission to the Bar and Discipline of Attorneys, persons convicted of a felony are ineligible to sit for the bar. No provisions on public or private employment.
Negligent hiring protection
Pursuant to section 4 of SB-312, enacted in April of 2017, an employee’s criminal history may not be introduced as evidence against an employer in a civil suit based on the employee’s actions if,
(1) the nature of the criminal history information of the employee or former employee does not bear a direct relationship to the facts underlying the civil action
(2) before the acts giving rise to the civil action occurred
(A) a court order sealed the record of the criminal case
(B) the criminal conviction has been reversed or vacated;
(C) the employee or former employee received a pardon for the criminal conviction; or
(D) the criminal conviction has been expunged under IC 35-38-9; or
(3) the criminal history information concerns an arrest or a charge that did not result in a criminal conviction.
The law explicitly states that it does not supersede any requirement to conduct background checks mandated by law or “consider criminal history information in hiring for particular types of employment.”
Ban-the-box in executive employment
In June of 2017, Governor Holcomb issued Executive Order 17-15, mandating that job applications for employment with the Executive Branch be amended to remove questions about criminal history unless “a particular crime precludes the person from employment in the particular job to which she or he applied.” See E.O. 17-15 (2017), available at http://www.in.gov/gov/files/Executive-Order-17-15-Fair-Chance-Hiring.pdf. The Order additionally states that criminal history background checks “typically will be conducted at a later point in the application and hiring process.” Two months earlier, the Governor signed SB-312, prohibiting localities from banning the box or limiting employer consideration of criminal history.
C. Fair Credit Reporting
In 2012 a new chapter 24-4-18 was added to the Indiana Code to restrict criminal history information that may be reported by a “criminal history provider” (background screening company). As subsequently amended (twice in 2013 and again in 2014), this chapter prohibits reporting the following:
- A record that has been expunged, either by marking the record as expunged or by removing the record from public access (which may include non-conviction data after a year, see Code § 35-38-9-1, supra11);
- A record that is restricted by a court or the rules of a court and is marked as restricted from public disclosure or removed from public access.
- A record indicating a conviction of a Class D felony (for a crime committed before July 1, 2014) or a Level 6 felony (for a crime committed after June 30, 2014) if the Class D felony or Level 6 felony conviction that
(A) has been entered as a Class A misdemeanor conviction; or
(B) has been converted to a Class A misdemeanor conviction;12
- A record that the criminal history provider knows is inaccurate.
Ind. Code § 24-4-18-6(a). A criminal history provider may provide information described above if the requester is required by state or federal law to obtain the information; or if the requester is the state or a political subdivision, and the information will be used solely in connection with the issuance of a public bond. § 24-4-18-6 (b).
“A criminal history provider may not include criminal history data in a criminal history report if the criminal history data has not been updated to reflect changes to the official record occurring sixty (60) days or more before the date the criminal history report is delivered.” § 24-4-18-7.
The Attorney General may enforce sections 6 and 7 through injunction and fines, and a private individual injured by a violation of these sections may recover damages, court costs and attorney fees. See § 24-4-18-8.
- In 2011, the Indiana Supreme Court reversed the line of cases finding that an “infamous crime” for purposes of these authorities refers to any or all felonies. See Snyder v. King, 958 N.E.2d 764, 781 (Ind. 2011) (“infamous crime includes any crime involving an affront to democratic governance or the public administration of justice such that there is a reasonable possibility that a person convicted of such crime poses a threat to the integrity of elections”) “Prototypical examples of infamous crimes” under the Snyder v. King standard “are treason, perjury, malicious prosecution, and election fraud.” Id. Misdemeanor battery does not constitute an infamous crime, and the legislature may therefore disenfranchise someone convicted of this crime only under its general police power, and only if the person is sentenced to prison for the duration of the prison term. Id. at 785-86.
- The statutory requirement that all applications for clemency be filed with the Parole Board has evidently not been interpreted in practice as a limitation on the governor’s power to pardon without consulting the board. See “Frequency of Grants,” Part IIA.
- According to the Parole Board, there have been few commutations granted since 1989, since courts have sentence modification authority and prison administrators have generous good time authority. In 2004, two death sentences were commuted to life without parole, one on the recommendation of the Parole Board and one by the Governor without consulting the Board.
- The process leading up to enactment of this comprehensive scheme is described by the legislation’s chief sponsor, Rep. Jud McMillin, in Indiana’s new law the product of ‘many many compromises,’” Collateral Consequences Resource Center, December 15, 2014, http://ccresourcecenter.org/2014/12/15/indianas-new-expungement-law-product-many-many-compromises/.
- The Indiana Court of Appeals has held that the word “shall” in § 35-38-9-2 left the court with no discretion to withhold expungement of a misdemeanor sex offense, notwithstanding the objections of the victim. Taylor v. State, 7 N .E.3d 362 (Ind.Ct.App.2014). The same mandatory term appears in §§ 35-38-9-1 (non-conviction records) and 35-38-9-3 (Class D felonies). The Taylor court pointed out that a victim’s objections may be weighed only where expungement is discretionary, as is the case with more serious felonies under §§35-38-9-4 and -5.
- See Cline v. State, No. 38A04–1512–XP–2221 (Ind. Ct. App., September 15, 2016), where the court of appeals reversed the trial court’s denial of relief based on the seriousness of the petitioner’s drug offense, noting that
Cline committed her offenses during her youth and has satisfied the statutory prerequisites for expungement. Beyond that, Cline has consistently been employed, and has obtained an Associate’s Degree in Business Administration, a CPR license, and a ServSafe certification. She testified that she had been promoted from food server to store management, but lost her job when store owners learned of her criminal record. Cline expressed a desire to return to management, a prospect more feasible with record expungement. The prosecutor offered no evidence or argument in opposition to expungement.
But see W.R. v. State of Indiana, 17A03-1703-XP-571 (Ind. Ct. App., Nov. 1, 2017). In W.R., the court affirmed the denial of expungement for two felony drug dealing convictions where the statutory requirements were met and the petitioner “led a generally successful life” but was subsequently convicted of a DUI misdemeanor (which was expunged in the same case). The court stressed the discretionary nature of the statute and distinguished the case from Cline, noting the “troubling articulation” of the lower court’s reasoning in Cline along with the fact that Cline had no subsequent convictions.
- The 2014 amendments specify where a petition for expungement must be filed, provide that expungement proceedings may be closed (including to victims), change a petitioner’s burden of proof from “clear and convincing” to “preponderance,” remove a prohibition against a waiver or reduction of the filing fee for an indigent person, grant a defense attorney and a probation department access to expunged records if authorized by court order, and allow a court to accept filing of a subsequent petition for expungement that includes convictions not named in the original petition under certain circumstances. The 2014 amendments reduce waiting periods while requiring a petitioner to have completed the terms of his court-imposed sentence, and add a prohibition on waiving the right to expungement as part of a plea agreement. They specify that access to expunged records will be grated to: (1) the supreme court and the state board of law examiners to determine a person’s fitness for admission to the bar; and (2) a person required to access expunged records to comply with the federal Secure and Fair Enforcement for Mortgage Licensing Act. Finally, they specify the procedure to regain the right to possess a firearm by a person convicted of a misdemeanor crime of domestic violence after five years.
The 2015 amendments disqualify any person convicted of two or more felonies involving a deadly weapon from seeking expungement of any conviction record; expand expungement eligibility to cover records of criminal charges and juvenile allegations instead of just arrest records; and expand protection of non-conviction records by requiring the courts to seal and redact their own non-conviction records . The 2015 amendments also added § 35-38-9-8.5, which clarifies the law’s application to older offenses that were subject to indeterminate sentences. Eligibility for those offenses is now determined by an offense’s current felony or misdemeanor classification. See P.L. 142-2015.
- Exceptions allow for records to be disclosed to the state board of law examiners, persons required to access the records under the federal Mortgage Licensing Act, certain state and federal motor vehicle agencies, and the FBI and Department of Homeland Security in certain situations. § 35-38-6(a)(2).
- In Cline, the petitioner sought to expunge her 13 year-old felony forgery and methamphetamine distribution offenses after she had been released from probation and remained crime-free for 5 years, been consistently employed, and achieved a number of job-related credentials. The lower court denied the petition based on the nature of the conviction, the severity of the offenses, and the “relatively short” duration since release, factors not identified in the statute. In rendering its decision, the lower court also expressed particular disdain for methamphetamine offenders such as Cline. While the Court of Appeals recognized that the lower court had discretion to deny a petition based on factors not listed in the statute, it found that the lower court abused that discretion since “all evidence presented to the trial court militated toward expungement,” and remanded the case.
- Amended petitions based on denial may only seek expungement of convictions included in the original petition. § 35-38-9-9(i).
- The law as originally enacted in 2012 would have permitted reporting only “criminal history information that relates to a conviction,” and 2013 amendments first deleted this provision then re-enacted it, with elaboration to specify the non-convictions records that were exempt from reporting. In 2014, P.L. 168-2014 restricted the prohibition on reporting to non-conviction data that has been expunged under § 35-38-9-1, which has an eligibility waiting period of one year. See supra.
- It appears that misdemeanors may not be reported even if they have not been expunged.
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