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Judges find court should have granted expungement

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Finding that the word “shall” in Indiana Code 35-38-9-2(d) is mandatory language requiring expungement, the Indiana Court of Appeals reversed the denial of a man’s petition to expunge his 2004 misdemeanor sexual misconduct with a minor conviction.

The issue in Jason Taylor v. State of Indiana, 45A03-1310-CR-406, is while I.C. 35-38-9-2, which applies to misdemeanor convictions, may appear clear and unambiguous on its face, it is ambiguous when read in conjunction with I.C. 35-38-9-9(d), which requires the court to consider the victim’s statement before making its determination. Section 2 says that the court “shall order the conviction records described in subsection (b) expunged in accordance with section 6 of this chapter,” as long as conditions outlined in the section are met.

The trial judge denied Jason Taylor’s request to expunge his Class A misdemeanor conviction based on the victim’s testimony. Taylor met all the other conditions outlined in Section 2 and the state agreed his conviction should be expunged.

He pleaded guilty to a sexual misconduct charge as a Class D felony that was later reduced to the Class A misdemeanor.

The interpretation of Section 2 is an issue of first impression for the appeals court.

“We agree with Taylor that Section 35-38-9-2(d) unambiguously requires expungement when all of the statutory requirements are satisfied. Section 35-38-9-2(d) states that the trial court ‘shall order’ the conviction records expunged when all statutory requirements are met. Had the legislature intended the expungement of conviction records under Section 35-38-9-2(d) to be discretionary, it would have used the word ‘may’ instead of the word ‘shall,’” Chief Judge Nancy Vaidik wrote.

This decision does not render Section 9-9(d) meaningless, as the state had argued, because it applies to other sections under Chapter 9 where the trial court is required to consider a victim’s testimony before granting expungement, Vaidik continued.
 

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  1. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

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