While still a subject of some controversy, expungement, the process by which an Indiana citizen can seal past criminal records, has undergone significant revision since its inception. In 2012, Indiana lawmakers enacted legislation popularly known as the “Second Chance Law.” Under the 2012 procedure, only those convicted of misdemeanors and non-violent class D felonies were eligible, and the remedy resulted in an order to non-law enforcement agencies prohibiting disclosure of the criminal records.
In 2013, the General Assembly repealed the original provisions and replaced them with a new set of “expungement” statutes codified under I.C. 35-38-9. While, like the original “Second Chance” legislation, the 2013 procedure did not result in the actual destruction of the criminal records, it did expand the pool of eligible convicted offenders. Additionally, while not all expunged records were removed from public access, all successful petitioners earned the right to be treated as though they had never been convicted of the expunged offense. In 2014, and again this year, the Indiana General Assembly refined the expungement statutes to clarify legislative intent and remove barriers that inadvertently prevented some reformed offenders from benefitting from the remedy.
The following is a summary of significant changes resulting from this year’s amendments that will take effect on July 1, 2015:
Petitions filed under I.C. § 35-38-9-1 (addressing adult or juvenile arrests that did not result in a conviction or juvenile adjudication) will not incur a filing fee. For Petitions filed under I.C. § 35-38-9-2 through 5 (addressing adult convictions but not juvenile delinquency adjudications), payment of a civil filing fee will be required.
Starting July 1, 2015, all expungement petitions are to be filed in a circuit or superior court where the criminal charges or juvenile delinquency allegations (petitions filed under I.C. § 35-38-9-1 only) were filed. If no charges or allegations were filed, then the petition (those filed under I.C. § 35-38-9-1) is to be filed in the county where the arrest occurred.
Confidentiality of expungement case file
I.C. § 35-38-9-10(i) was amended to provide that, upon the granting of an expungement order, the expungement case file and all documents filed in the case are to be treated as a confidential case file and handled according to A.R. 9(G)(1)(a). Thus, up and until the granting of the expungement, the petition, the expungement case file, and all hearings are open to the public. While the petition no longer falls within the green paper rule of T.R 5(G) and A.R. 9(G)(5), the petition must be accompanied with a Form 9-G1 (see A.R. 9(G)(5)) and a green confidential information sheet listing the petitioner’s social security number.
The Division of State Court Administration also recommends that orders granting expungement be distributed to the impacted state agencies on green paper.
Petitions pertaining to arrests that did not result in conviction – new result
An order issued under I.C. § 35-38-9-1 (pertaining to cases involving arrests that did not result in conviction) will now require, in addition to the removal of criminal history information from law enforcement agency databases, the permanent sealing or redaction of court records.
Application to pre-1977 offenses punishable by an indeterminate sentence under a law other than I.C. § 35-50
A new section, I.C. § 35-38-9-8.5, was added to address application of the expungement procedures to criminal offenses that, because they were committed prior to enactment of the 1977 criminal code, do not fall into the misdemeanor and felony categories referenced in the other sections of I.C. § 35-38-9.
Addition of new disqualifying condition
I.C. § 35-38-9-2 through 5 (pertaining to petitions addressing adult convictions) were amended to add an additional disqualifying condition: as of July 1, 2015, persons who have acquired two or more unrelated felony offenses that involved the unlawful use of a deadly weapon are not eligible for expungement of conviction records.
Duties of Prosecutor
Relating only to petitions seeking to expunge conviction records, I.C. § 35-38-9-8(g) now provides that if the prosecutor fails to file a timely reply to the petition (within thirty days following receipt), the prosecuting attorney has waived any objection, and the court shall consider the petition in accordance with the procedures set out by I.C. § 35-38-9-9.
With respect to convictions to be expunged under I.C. § 35-38-9-2 (misdemeanor convictions) and I.C. § 35-38-9-3 (D felony and level 6 convictions not resulting in bodily injury), for which the court is given no discretion regarding the granting of the petition, I.C. § 35-38-9-8 was amended to remove the requirement that the prosecuting attorney contact the victim regarding the proposed expungement.
New required content for petition and order
I.C. § 35-38-9-8 (content of petitions that address conviction records) was amended to require inclusion in the petition of the petitioner’s social security number and driver’s license number, the date of arrest, and the date of conviction. The statutory provisions that required the petitioner to attach a certified copy of his/her driving record and evidence of payment of all fines and fees, however, were deleted.
Additionally I.C. § 35-38-9-6 and 7 were amended to require inclusion of the descriptive content provided in the petition in the orders granting expungement. To comply with this provision, the Division of State Court Administration recommends that trial courts attach an exhibit to the order that contains this information:
- full name, other legal names or aliases
- driver’s license number
- addresses (from the date of the offense to the date of the petition)
For each arrest or conviction:
- the case number
- date of arrest
- location of arrest (city and county)
- date of conviction
- if applicable, appellate case number and the date of appellate decision
Restoration of “proper person” status under I.C. § 35-47-2
Except for persons convicted of a crime of domestic violence, I.C. § 35-38-9-10(c) now specifically provides that expungement of an Indiana conviction will result in restoration of the petitioner’s status as a “proper person” for the purpose of handgun regulation pursuant to the provisions of I.C. § 35-47-2.
New “XP” case type
In addition to the 2015 statutory changes to the expungement law, the Indiana Supreme Court issued an order on March 19, 2015 that amends Administrative Rule 8(B)(3) and adds a new case type designation for expungement cases. Starting July 1, 2015, all expungement petitions shall be assigned a new case number utilizing the new “XP” case classification code.
For additional information on this article or on the topic of expungements, please contact Libby Milliken at (317) 234-8760 or firstname.lastname@example.org.