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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. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  2. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  3. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  5. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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