Reversal: Expungement petitioner entitled to hearing when prosecutor objects

A trial court erred in denying a man’s expungement petition on a Class B felony conviction of aiding robbery because the statute requires a hearing when a prosecutor objects, the Indiana Court of Appeals ruled Thursday.

The panel reversed denial of a motion to correct error in Jerrell Antonio Key v. State of Indiana, 02A04-1507-MI-854. Allen Superior Judge John F. Surbeck denied Key’s petition to expunge the aiding robbery conviction after a prosecutor objected. The prosecutor cited the victim’s objection, the seriousness of the offense, Key’s apparent lack of remorse and other factors.

Judge L. Mark Bailey looked to the plain language of Indiana Code to interpret a case in which the state argued the expungement could be denied under trial rules for the sake of judicial economy.

“Subsection 35-38-9-9(c) provides that if the prosecuting attorney objects, the trial court shall set the matter for a hearing. Because the prosecutor objected, the trial court erred when it did not set a hearing on Key’s petition,” Bailey wrote in reversing the motion to correct error and remanding for proceedings.

While Key’s Class D felony conviction of resisting law enforcement would be automatically expunged if he met the statutory requirements, Bailey wrote legislators gave courts discretion in expunging more serious crimes, and the trial court does have that discretion concerning Key’s aiding robbery conviction. But he wrote lawmakers also required a hearing when a prosecutor objects so that petitioners are not deprived due process.

“The State argues that requiring a hearing every time the State objects ‘would be a waste of judicial economy, overload busy prosecutors, and incentivize the State not to reply to avoid unnecessary hearings,” Bailey wrote. “We disagree. The statute requires the prosecuting attorney to reply to expungement petitions … so it does not create a disincentive to reply.”

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