Previous conviction? Expunge it!

Indiana’s expungement law took effect in 2013, allowing people convicted of certain crimes to have their criminal records restricted. The new law allows records to be sealed and expunged for people arrested but not convicted or if a conviction is vacated on appeal. It also allows people convicted of misdemeanors to petition the court for expungement not earlier than five years after the date of conviction, and for people convicted of Class D felonies to ask for expungement eight years after the date of conviction.

The law led to nearly 300 people showing up at the Marion County Clerk’s office July 1 seeking to file a petition to expunge their records on the mistaken belief that was the only day they could seek the expungement. Attorneys cautioned that people be very careful about trying to file the petition on their own. You only can file for expungement one time and, if the petition fails, you have to wait three years before trying again.

The popularity and complexity of the new law also led to forums being held across the state on the topic. It’s unclear if, under the new law, people who have felony convictions expunged are no longer prohibited from possessing a firearm. There are also questions as to what “successful completion” of a conviction and sentence means under the law.

Morgan County Prosecutor Steve Sonnega believes that the expungement statute is unconstitutional because it doesn’t give victims of crimes a voice in certain cases. Morgan Circuit Judge Matthew Hanson rejected Sonnega’s constitutional arguments Oct. 28 and granted an expungement to a person convicted of misdemeanor reckless driving years earlier. In such cases, I.C. 35-38-5 says courts “shall” grant expungements if requirements of the law have been met. Hanson’s order denied most of Sonnega’s constitutional arguments but left an opening, and Sonnega said he aims to take it in an upcoming case. Because the state was the victim in the reckless driving case, Hanson ruled that constitutional claim regarding victims’ rights wasn’t ripe.

Sonnega said he will raise the argument again in a case set for January in which a petitioner seeks to expunge a misdemeanor battery conviction. He pleaded guilty after his child molestation trials in the 1990s ended in hung juries. Sonnega said the victim in this case objects to expungement. Requiring the court to grant an expungement without considering the victim’s voice in such a case “offends my prosecutor DNA more than someone saying, ‘You’re a prosecutor; you’re supposed to stick up for the law,’” Sonnega said.