Judges disagree on remand instructions

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Indiana Court of Appeals judges unanimously agreed today that a defendant's petition for expungement of his arrest shouldn't have been denied by the trial court, but they disagreed as to what should happen on remand.

The trial court summarily denied Steven T. Gerber's petition for expungement of his arrest, but the trial court could only do this per statute if there was notice of opposition filed by the prosecutor or if it found Gerber's petition to be insufficient. The trial judge in his case rejected the petition without a hearing because the judge believed Gerber had to wait until the statute of limitations to file charges ran out before his arrest could be expunged. The prosecutor didn't file a notice of opposition nor did the judge find the petition to be insufficient.

In Steven T. Gerber v. State of Indiana, No. 02A03-0902-CR-73, Judges Melissa May and Michael Barnes and Chief Judge John Baker agreed that the statute of limitations for an offense is not the appropriate guideline to determine whether a petition for expungement may be granted. The court noted there is no statute of limitations on a person arrested for any Class A felony, so someone falsely arrested may never have that arrest expunged.

Even though meaning of the term "insufficient" in the expungement statute remains unclear, Judge May remanded with instructions to either summarily grant Gerber's petition, set the matter for a hearing, or summarily deny the petition after finding it to be insufficient.

Judge May also concluded the prosecutor shouldn't be permitted to participate on remand. Even though the prosecutor failed to file a notice of opposition, the trial judge later allowed the prosecutor to file a brief opposing Gerber's petition.

Judge Barnes dissented from his colleagues with regards to the prosecutor's participation on remand. He wrote participation may take place in many shapes and forms and a blanket prohibition on participation by the prosecutor could unfairly, and perhaps unknowingly, inhibit conduct that would otherwise be helpful and proper.

In his dissent, Chief Judge Baker wrote the trial court shouldn't have the option to summarily deny Gerber's petition on remand because the trial judge didn't find his petition to be insufficient and no law enforcement agency filed a notice of opposition to the expungement.

"I see no reason to give the trial court a second chance to review Gerber's petition and change its decision; nothing in the underlying facts or law has changed since the trial court's initial order was entered," he wrote.


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  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...