ILNews

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. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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