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County official puts Indiana's expungement statute on trial

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Morgan County Prosecutor Steve Sonnega has heard the criticism that he’s on the wrong side of the law when he argues that Indiana’s expungement statute is unconstitutional. But he insists he’s right.

“My No. 1 driving force was victims’ rights,” Sonnega said, explaining why he recently urged a judge to strike down the law restricting access to criminal records.

“We apply the law, that’s our job,” Sonnega said. “If we’ve got a law that on its face gives victims zero say in the process? Sometimes we have to do what we think is right.”

expungement-apb-sonnega01-15col.jpg Morgan County Prosecutor Steve Sonnega said he’s challenging the constitutionality of Indiana’s expungement law because it gives victims of crimes no voice in certain cases. (IL Photo/Aaron P. Bernstein)

Indiana’s expungement law took effect in July, but not without complications. Even a sponsor, Rep. Jud McMillin, R-Brookville, said he plans to seek some changes in the upcoming legislative session.

Meanwhile, despite its complexity and shortcomings, the law has proven popular. At least 300 expungement petitions have been filed in Marion County alone.

Morgan Circuit Judge Matthew Hanson rejected Sonnega’s constitutional arguments Oct. 28 and granted an expungement to a person convicted of misdemeanor reckless driving years earlier. In such cases, I.C. 35-38-5 says courts “shall” grant expungements if requirements of the law have been met.

Hanson’s order denied most of Sonnega’s constitutional arguments but left an opening, and Sonnega said he aims to take it in an upcoming case. Because the state was the victim in the reckless driving case, Hanson ruled that constitutional claim regarding victims’ rights wasn’t ripe.

“Without the ability of a court to consider a victim’s statement … it would seem the statute is ineffectual when it comes to victim’s rights, and therefore violates the Indiana Constitution,” Hanson wrote. “… Since there is no real victim in this case, this issue of victim’s rights will have to be left for another day when a victim does make a statement that cannot be considered because of the inherent conflict with this statute.”

Sonnega said he’ll raise the argument again in a case set for January in which a petitioner seeks to expunge a misdemeanor battery conviction. He pleaded guilty after his child molestation trials in the 1990s ended in hung juries. Sonnega said the victim in this case objects to expungement. Requiring the court to grant an expungement without considering the victim’s voice in such a case “offends my prosecutor DNA more than someone saying, ‘You’re a prosecutor; you’re supposed to stick up for the law,’” Sonnega said.

It’s that “shall” language obligating judges to grant expungements without considering what victims have to say that concerns Sonnega and that, he believes, merits a constitutional test.

“Our argument is simply that the statute ties the court’s hands and slams the door on victims’ voices,” he said.

Attorney Glen E. Koch II of Boren Oliver & Coffey LLP in Martinsville represented the client who successfully sought expungement of the reckless driving charge. Koch said he was taken aback when Sonnega raised constitutionality arguments. “Normally the executive is enforcing the law, not challenging them,” he said.

Koch believes the law is constitutional, and the General Assembly was within its rights to craft the law as it did. Lawmakers wouldn’t have chosen to require courts to take action if that wasn’t its intent, he said. His client, a professional driver, wanted to get the conviction off his record for future employment and promotion opportunities.

Koch said the client had completed his sentence and had a clean record for the period of time required to qualify for expungement. “Now we have an opportunity through this second-chance statute to reward that behavior,” he said.

McMillin_Jud.jpg McMillin

Beech Grove attorney Dave Byers said lots of people are looking for second chances. His office has had a brisk response to Halloween-themed ads aimed at helping people “haunted” by their criminal pasts. “There really is a lot of public interest,” he said.

Byers said he knows and respects Sonnega, “but in this case I just respectfully disagree. Clearly, it’s something that’s within the power of the Legislature to pass a law like this.”

Still, he and Koch said there are parts of the law where changes are need. For instance, expungements are filed as “miscellaneous” cases that are open to review, so it’s easy to find out if someone has been granted an expungement. Byers said he’d like to see the filing fee repealed, and Koch said it might make more sense to file the petitions under seal or in the criminal cases where records ultimately would be sealed.

McMillin said he’s working with prosecutors, public defenders and courts to try to address some of those concerns. The courts might be able to create a new filing category so that expungement petitions can be filed under seal, for example.

“One of the steps we hope to take is to clarify time guidelines, when you’re eligible,” and what the exact requirements are to qualify, McMillin said.

“Our goal with this new language will simply be to say, if you meet the time requirements, if you’ve completed your sentence and you have paid all the court costs, fines, and fees, and you’ve been clean the required amount of time, you should be eligible for expungement,” he said.

The expungement statute also ties in with Indiana’s Criminal Code reform that passed the Legislature this year and is scheduled to take effect in 2014 with a goal of reducing prison and jail populations and reducing recidivism, McMillin said. “It’s a huge tool in that effort,” he said.

“Our goal should be through expungement to look at who they are now and not who they were five years ago,” he said.

“I get the concept that you’ve paid your debt to society,” Sonnega said. But requiring courts to clear those records might reward people who haven’t truly been rehabilitated, he said, because it limits the courts’ authority for inquiry.

Sonnega believes Indiana is an outlier among states with expungement statutes because of the requirement that judges restrict access to criminal records in certain cases, typically misdemeanor and Class D felony convictions.

“The court should decide each case using criteria on a factual basis,” he said. “Our victims don’t get a fair shake.”

McMillin doesn’t believe the constitutional arguments against the law have merit, and he noted the statute requires victim notification in many cases. Victims have an opportunity in serious felony cases to object or support the petition, as do prosecutors, he said.

Sonnega’s constitutional challenge stopped short of involving the Office of Indiana Attorney General Greg Zoeller. “We believe that the discussion concerning the expungement statute raised by the county prosecutor involving victims’ rights should be addressed with the Legislature,” spokesman Bryan Corbin said in a statement.

“The Morgan County court’s ruling on the constitutionality of the statute should be respected; and since the statute has been affirmed, no appeal is planned by the State,” he said.

Despite the legal and political machinations, Byers, the Beech Grove attorney, said it’s clear many Hoosiers are embracing the second-chance opportunity.

“I just sense that the public has a real hunger for this,” Byers said. “It’s kind of about forgiveness, isn’t it? I just think that’s a great thing.”•

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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