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Court orders man’s records expunged

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The statute in effect when a man petitioned to have his Class D felony conviction records expunged said the trial court “shall order” the expungement if all statutory requirements have been met. As a result, the trial court erred in denying Michael Kevin Mallory’s petition based on testimony of his victims.

In 2000, Mallory pleaded guilty to two counts of Class D felony theft and successfully completed the obligations of his sentence in 2003. In November 2013, he sought to expunge his conviction records. He met all the statutory requirements in place at the time, so the trial court should have expunged his records based on the “shall order” language in I.C. 35-38-9-3.

But at the expungement hearing, his victims testified that they wanted the trial court to deny his petition. The judge found I.C. 35-38-9-3 to be in conflict with I.C. 35-38-9-9(d), which at the time, allowed a victim to submit an oral or written statement in support or in opposition of the petition at the time of the hearing. The statute also said, “The court shall consider the victim’s statement before making its determination,” language that has been removed by an amendment in the 2014 legislative session.

“It is well settled that the use of the word ‘shall’ is construed as ‘mandatory language creating a statutory right to a particular outcome after certain conditions are met,’” Judge Cale Bradford wrote in Michael Kevin Mallory v. State of Indiana, 20A03-1403-MI-76. “Therefore, we agree with Mallory that Indiana Code section 35-38-9-3(e) unambiguously requires expungement if all statutory requirements are met.”

The judges remanded with instructions to grant Mallory’s petition.
 
 

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  1. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

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  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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