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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 just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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