Judge incorrectly considered acquitted charges in denying expungement petition

March 16, 2015

Facts from an incident that do not result in a felony conviction cannot be taken into consideration by a judge when determining a person is disqualified from filing for mandatory expungement of a different felony conviction resulting from the same incident, the Indiana Court of Appeals held Monday.

Johnnie M. Trout Jr. filed a petition in January 2014 for mandatory expungement of Class D felony convictions criminal recklessness with a deadly weapon and pointing a firearm. Those convictions were handed down in 1998. At that time, Trout was charged but not convicted of two other counts, including attempted murder.

The law in effect at the time Trout filed his petition mandates granting an expungement unless a person is convicted of a felony that resulted in bodily injury to another person. The judge, when considering the petition, took into account the attempted murder charge that Trout was not convicted of, in which a victim was accidently shot and injured while reaching for Trout’s gun. The judge did not believe it was appropriate to turn a “blind eye” to the facts of the entire case.

But the statute is clear that the petition for expungement should be denied if Trout had a felony conviction that resulted in a bodily injury to another person. The two charges he was convicted of did not involve bodily injury, Chief Judge Nancy Vaidik wrote in Johnnie M. Trout Jr. v. State of Indiana, 12A04-1409-MI-403.

Therefore, these two Class D felony convictions do not disqualify him from mandatory expungement. And because this is the only basis upon which the state challenged Trout’s petition, the trial court erred in denying the petition. The matter is remanded for further proceedings.


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