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Complexity of new expungement law raises questions

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expungement-factbox1.gifCrowds rushed the Marion County Clerk’s Office on July 1 under the misunderstanding that was the only day people could petition to have their criminal records expunged. “We probably had 200 to 300 people,” said Scott Hohl, chief of staff for the office.

Indiana’s new expanded expungement law took effect July 1, but the crowd that day also illustrated a fear voiced by many lawyers and court staff – that rushing to the courthouse is likely a big mistake. Those familiar with the complex law say the best advice is the same as the usual for second chances: Don’t screw it up.

“You have one opportunity to have your records restricted,” Hohl said. If the petition fails, the law requires a three-year wait before trying again.

Another caution for people seeking expungement: Represent yourself at your own risk.

“I would not advise individuals to try this by themselves,” said Jerome Ezell, a sole practitioner in the Porter County town of Kouts. Ezell retired three years ago as a legal adviser for the Indiana State Police where he assisted the attorney general’s office when it opposed expungement requests under prior laws.

Formerly on “the other side, so to speak,” Ezell now finds himself counseling people who may be able to clear a much wider range of

criminal records under House Enrolled Act 1482. Ezell, a member of the Lake County-based James C. Kimbrough Bar Association, will be a presenter at an informational forum on the new law in Gary on July 20. Attorneys will be on hand to advise people seeking expungement.

“A lot of people think it’s an automatic grant,” Ezell said of another common misconception. The law permits expungement of conviction records for offenders who have not been convicted or charged with subsequent crimes for a number of years. In general terms, the more serious the offense, the longer the clean criminal record must be to qualify.

Ezell said while the new law is more complex in its requirements, it lowers a petitioner’s burden to obtain an expungement. Under prior laws, petitioners had to prove an arrest was improper, the result of mistaken identity or there was lack of probable cause. “It was just about impossible to prove,” he said.

While the fact burden on a petitioner now is lower, the new law raises a financial burden for many: The statute requires payment of the $141 state court civil filing fee and forbids fee waivers for many expungement requests.

Bennie Muhammad, executive director of forum sponsor Gary Commission on the Social Status of Black Males, said the filing fee requirement is no small hurdle for many people who want to expunge their records. Nonetheless, interest in expungement is great. He said the group has received calls from people in Virginia, Dallas and Chicago inquiring about getting their Indiana conviction records expunged.

“From what I am seeing and hearing in our promotion of this forum, it is actually lifting hope in the lives of many,” Muhammad said. Felony convictions cast a long shadow not just on employment prospects, he said, but also in terms of eligibility for federal education and housing aid, among other things.

Still, the various requirements in the five categories of expungement have raised plenty of questions for attorneys.expungement-factbox2.gif

“It’s really pretty complicated,” Indianapolis private practice attorney Libby Milliken said of the statute. “The requirements for petitions are pretty specific and pretty technical.”

Milliken is working on about a half-dozen expungement requests under the new law and gets calls almost daily about it. Some callers ask about forms they might be able to use to do it themselves. She counsels against it, and besides, the forms for pro se litigants aren’t yet available. For some categories of expungements, even developing forms for attorneys is proving to be a puzzle.

“The statute is so detailed and there are so many different case types to file for … .It is very difficult to formulate forms for this,” said Tracy Beechy-Nufer, director of trial court management for the Indiana Division of State Court Administration. “It’s a huge project.”

The hope is to have most forms available on the state court website by mid-August, Beechy-Nufer said. Some forms are rather straightforward. A petition to seal records for an arrest that didn’t result in conviction, for instance, has far fewer requirements than a request to expunge records for a 20-year-old armed robbery conviction. Serious felony convictions require the consent of a prosecuting attorney and are left to the discretion of a judge.

Marion County deputy prosecuting attorney Andy Fogle has been researching the law’s requirements. He expects requests for expungement that trigger prosecutor consent also are likely to require hearings and victim notification. It’s not unrealistic to expect prosecutors may get requests from people wanting to expunge records of serious felonies they committed as far back as the 1950s or 1960s.

Fogle is puzzled about victim notification in such cases. “How do you do that?”

People seeking expungement who have convictions in multiple jurisdictions will have to petition courts in all locations where judgment was entered, and those must be completed within one year of the first request for expungement, attorneys said.

Marion Superior Court administrator Andrea Newsom said expungement cases, which are civil in nature, will be assigned to the court that entered judgment on the highest-level offense. In cases of multiple offenses of the same severity, the petition will be assigned to the court with the most recent adjudication.

“The challenge for us is an anticipated increase in filings. We looked at this from an operational viewpoint” of how to best assign the petitions, she said.

Milliken has lots of questions about the new law, too. It’s unclear, for instance, whether people who have felony convictions expunged are no longer prohibited from possessing a firearm. “I think the way the law is written, there’s a strong chance (a person whose conviction is expunged) would be permitted to possess a firearm even under federal law.”

She also focuses on the statute’s wording requiring “successful completion” of a conviction and sentence in order to qualify for expungement. She wonders if that would bar someone who violated probation and therefore did not “successfully complete” a sentence. Fogle thinks it might.

“If you read the law verbatim, I think there’s a strong argument that, no, you can’t qualify because you did not ‘successfully complete’ the sentence,” he said. The same could apply for cases in which restitution was ordered but not successfully completed, no matter how long ago, Fogle suggested.

“These are going to be questions of first impression the courts are going to have to determine,” he said, “and I don’t have a clue what the answers will be.”•
 

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  • Restitution
    Restitution is another one of those scary areas. What happens if restitution was to be paid in 24 months and it took 30, 36, or 48 months? However, the code did read a victim can appear in person or write a letter to the court in support of the convicted (... or they can do the same in opposition of the convicted). The judge has to take the letter into consideration before the ruling on the petition.
  • Judge's Descretion
    "The petitioner shall provide evidence that the petitioner has successfully completed all terms of the sentence previously imposed, including:(A) payment of restitution, fines, and court costs; and (B) completion of any terms of probation, parole, or community corrections." Out of all the requirements this one scares me the most. If a judge does decide to make probation violations a reason to summarily deny the petition I can see lawyers having a uphill battle especially if the client wants to 'take a chance and go for it.' In the sake of fairness, I hope judges weight the severity of the violation and the convicted's post conviction time.
  • indigent "non granted?
    Usually when theirs multiple counties.you were charged in (trust me i do it in prejudice Illinois) -you petition each.jurisdiction respectfully.also,who gave the courts authority to block indigency(even if prooved in these tough times?")i like how the article.encourages people not to do it pro'se so that we.pay.a "shady"lawyer to f it up Digg its about time!!! What are people who were charged with crimes(that were dismissed)-yet the courts due to indiana triflingness!!not having case numbers for those offenses gonna do??mmm crts are a.fraud i smell rackeet
  • Another wrinkle
    What about convictions in multiple counties? If each person may file only one petition, where should the petition be filed?
  • Restitution
    For a felony, as part of the requirements for filing the petitions, restitution must be paid in full. Is there a time period for this, or so long as probation was successfully completed within 8 years, it wouldn't matter how long ago restitution was paid so long as it was paid?
    • Response, Use of Law
      It depends on why the charges were dropped. Unless it was due to (a) mistaken identity, (b) no chargeable offense committed or (c) lack of probable cause, relief in such a case will likely come by way of 35-38-9 (or, as you refer to it, "the new law").
    • Use of New or old law for Expungement or Seal
      I was arrested and charges where dropped back (No conviction)in Indiana around 1995. To say "I've never been arrested" on an Employers application what law would I use to petition for expungement or seal? The new law passed July, 2013 35-38-9 or old law 35-38-5?

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    1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

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

    3. 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.

    4. 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

    5. 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.

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