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COA: Convicted sex offender can’t seek expungement for unrelated charges

February 3, 2017

A man convicted of Class D felonies is not eligible for expungement of those offenses because he has also been convicted of sex crimes, the Indiana Court of Appeals decided Friday.

In Lonnie L. Burton v. State of Indiana, 10A01-1606-XP-1327, Lonnie Burton in 2015 filed to expunge two Class D felony convictions for theft and fraud. His expungement petition listed all of his prior convictions, including those for rape, child molestation and sexual exploitation of a minor in 1992 and 1994 in the state of Washington.

The state moved to dismiss Burton’s expungement petition, arguing that “sex or violent offenders” such as Burton cannot have Class D felonies expunged under Indiana Code 35-38-9-3. The Clark Circuit Court granted the state’s motion to dismiss without a hearing.

On appeal before the Indiana Court of Appeals, Burton contended that the trial court erred in dismissing his petition, arguing that Section 3(b) is a list of offenses that cannot be expunged, including sex or violent offenses, not offenses that would disqualify a person from seeking expungement.

The Indiana Court of Appeals disagreed Friday, with Chief Judge Nancy Vaidik writing that the language of the statute is plain and provides that expungement of Class D/Level 6 felonies is not available to offenders convicted of disqualifying offenses, including sex and violent offenders.

“In addition, Section 35-38-9-3(b) provides that expungement of Class D/Level 6 felonies is not available to a ‘sex or violent offender;’ notably, it does not say a ‘sex or violent offense,’” Vaidik wrote. “This is critical because a ‘sex or violent offender’ has a very specific meaning.”
 

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