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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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