COA: Trial court erred by striking ‘proper person’ language from expungement order

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A trial judge must reissue its expungement order for a defendant who successfully argued that the court’s original order improperly omitted statutory language, the Court of Appeals of Indiana has ruled.

N.H. filed a petition for expungement of his criminal convictions and arrest records in Elkhart County in November 2021.

In the proposed order, N.H. included a verbatim quotation of Indiana Code § 35-38-9-10(c), which provides that “the civil rights of a person whose conviction has been expunged shall be fully restored, including the right to vote, to hold public office, to be a proper person under IC 35-47-1-7(2), and to serve as a juror.” The “proper person” language would become the center of the instant appeal.

At a hearing in February, the Elkhart Superior Court stated it would use the proposed order but would strike the “proper person” language. The judge explained, “I generally don’t have all the information necessary under the statute to determine whether or not [N.H. is] a proper person. So I always strike that portion.”

With the trial court’s permission, N.H. submitted an amended proposed order that said, “Petitioner’s civil rights shall be fully restored, including the right to vote, to hold public office, to be a proper person under IC 35- 47-1-7(2), to the extent that any matter expunged herein previously disqualified Petitioner as a proper person, and to serve as a juror.”

Again, the trial court did not accept the amended proposed order, finding that “the proper person is still in paragraph 7 with what attempts to be qualification … [and] it falls short.”

N.H. then submitted another proposed order, this time stating, “Petitioner’s civil rights shall be fully restored as set forth in Ind. Code § 35-38-9-10(c),” but that order was also declined.

Finally, in March, the trial court granted N.H.’s petition for expungement, using his initial proposed order but whiting out the “proper person” language.

N.H.’s subsequent motion to correct error was then denied, with the trial court concluding, “There are fourteen (14) criteria that must be met in order for someone to be a proper person as defined under IC 35-47-1-7. Most of those conditions would not be known by a Court that is simply considering a Petition for Expungement. Not having a felony conviction is merely one (1) of the fourteen (14).

“Accordingly, based on the breadth of the term ‘proper person’ and its implications as applied in IC 35-47-2-3, only in the event that a Petitioner has provided evidence and proven that he or she meets all the criteria set out in IC 35-47-1-7(1)-(14) and is indeed a proper person as that term is defined in every subsection, not just subsection (2), would including such language in an Order of expungement be appropriate,” the court concluded.

On appeal, N.H. argued the trial court’s rationale for striking the “proper person” language from its expungement order was contrary to law. The appellate court agreed.

“The inclusion of the phrase does not require that the trial court make a determination as to whether a defendant is a proper person pursuant to the entirety of Indiana Code section 35-47-1-7, it merely acknowledges that a defendant’s previous convictions, now expunged, no longer prevent him from being determined to be a proper person,” Judge Margret Robb wrote. “Interpreting Indiana Code section 35-38-9-10(c) to be a referendum on all fourteen subsections of Indiana Code section 35-47-1-7 when it explicitly includes only subsection 7(2) would be illogical.”

Further, Robb noted the expungement process only covers the convictions listed in the petition, and only convictions in that county.

“…. (I)f the trial court did not have sufficient information regarding the proper person language, then it similarly did not have sufficient information to declare the remaining rights restored because they too could be affected by other convictions or circumstances that fall outside the purview of the expungement order,” Robb wrote. “Again, this would be an illogical rendering of the statute. … The inclusion of language from Indiana Code section 35-38-9-10(c) in an expungement order simply denotes that the convictions expunged in the order no longer preclude a defendant from exercising the enumerated rights. It does not blindly restore rights to a defendant.”

The case of N.H. v. State of Indiana, 22A-XP-1026, was thus remanded for the trial court to reissue its order and either include the “proper person” language or omit the relevant paragraph entirely.

Editor’s note: This article has been corrected.

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