2014 IPAC WINTER CONFERENCE Expungement Laws Todd J. Meyer, Prosecutor OFFICE OF THE PROSECUTING ATTORNEY 20TH JUDICIAL CIRCUIT BOONE COUNTY, INDIANA 103 Courthouse Square Lebanon, Indiana Telephone: (765) Facsimile: (765)

Outline of I.C  SECTION 1 (arrest no conviction, conviction vacated)  SECTION 2 (misdemeanor)  SECTION 3 (D and Level 6 Felonies)  SECTION 4 (felony – 8 year wait)  SECTION 5 (felony – 10 year wait)  SECTION 6 (sealing records expunged under Sections 2 & 3)  SECTION 7 (marking records expunged under Sections 4 & 5)  SECTION 8 (petition requirements)  SECTION 9 (procedures)  SECTION 10 (effect and sanctions)  SECTION 11 (No waiver in plea agreements)  QUESTIONS/COMMENTS  Relevant Statutes  Form Responses 2

Repeals the Old Rules  Expungement (Effective July 1, 2013)  “Emergency” legislation/changes effective March 26, 2014  Repeals IC restricted arrest and criminal records with no conviction  Repeals IC restricted access for certain misdemeanor/D Felony convictions 3

Changes of note in 2014 legislation  Removed filing fee  Burden of proof no longer by clear and convincing evidence – preponderance only  Ability to file in any court – no longer must file in court of original jurisdiction  Removed license suspension status as an impediment  Added grant of petition as a final appealable order 4

Petitions to Restrict Access to ISP Limited Criminal History Still Available I.C  A person may petition the state police department to restrict access to the person's limited criminal history only to that of criminal justice agencies if more than fifteen (15) years have elapsed since the date the person was discharged from probation, imprisonment, or parole (whichever is later) for the last conviction for a crime. 5

Exceptions to Restricting Access to Limited Criminal History  List found at I.C  16 exceptions found in section (a)  Volunteers to little league type organizations  Registered sex or violent offenders  Convicted of Rape or sex crime against child  Section (b) 6

Exceptions to Restricted Access  Section (b)  A law enforcement agency shall allow inspection of a limited criminal history by and release a limited criminal history to the following noncriminal justice organizations: (1) Federally chartered or insured banking institutions. (2) Officials of state and local government for any of the following purposes: (A) Employment with a state or local governmental entity. (B) Licensing. (3) Segments of the securities industry identified under 15 U.S.C. 78q(f)(2).15 U.S.C. 78q 7

Does this make sense?  Think of the crimes that can be restricted from a limited criminal history  Murder, Burglary, Theft, Battery, etc., etc. The offender may not be able to have his record expunged, but pursuant to this statute he could still have his limited criminal history restricted from disclosure to non-criminal justice organizations. 8

Section 1 – Arrest Only – what qualifies  Arrested and charges not filed  Arrested, charged and later All charges are dismissed  Arrested, charged and Defendant is acquitted or no true finding on ALL charges  Arrested, charged, convicted and conviction/adjudication vacated on appeal  Not on a pretrial diversion program (those who complete pretrial diversion will be able to seek expungement under Section 1)

Section 1 - Arrest Only General Requirements  No filing fee  No Burden of Proof indicated – presumably by a preponderance of the evidence (if there is a hearing)  Where to file petition  in court where charged  If not charged - any court with criminal jurisdiction in county of arrest  Date of arrest  County where arrest occurred  LEA employing arresting officer  Any other known information, such as the name of arresting officer, case number, cause number  DOB and SS# 10

Section 1 – Arrest only Upon receipt of a petition to expunge, the court:  Shall serve a copy of the petition on the prosecuting attorney  May deny if requirements of petition not met or if on the face of petition petitioner not entitled to relief; otherwise  The court SHALL grant the petition if requirements of petition met and no criminal charges are pending against petitioner 11

Section 1 – Arrest Only  If granted, no information concerning the arrest may be retained for public access and no record of the arrest shall be maintained in any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional or statewide LEA.  Does not require any change or alteration to:  any internal record made by a law enforcement agency at the time of the arrest and not intended for release to the public;  the record of any court in which the criminal charges were filed; or  records that relate to a diversion or deferral program. Although it is advisable that LEA and prosecutor’s offices make notation of the expungement within their internal files for future reference. 12

Section 1 - Time Frame Cannot be filed earlier than:  One (1) year after the date of arrest, if the person was not convicted or was not adjudicated a delinquent child  One (1) year after the date the appellate opinion vacating the conviction or adjudication becomes final  Unless prosecutor agrees to earlier filing

Section 1 - What Petitioner Must Show  All counts were either dismissed, overturned on appeal or there was an acquittal on all counts  Petitioner does not have any pending cases  Petition is filed timely:  One (1) year after the arrest; or  One (1) year after all counts of the conviction was reversed on appeal 14

Section 1 - Who Can Access the Sealed Info?  Presumably only LEAs (including prosecutors) and the court where a charge is filed.  The statute reads: …this chapter does not require any change or alteration in: (1) any internal record made by a law enforcement agency at the time of the arrest and not intended for release to the public; (2) the record of any court in which the criminal charges were filed; or (3) records that relate to a diversion or deferral program.  This information CANNOT be made public and must be for internal use only.  What about a police report? It’s not generated for internal use only

Sections 2 through 5 What gets expunged [better term is “sealed”] (sections 2 & 3) or marked as expunged (sections 4 & 5)? 16 (1) a court's files; (2) the files of the department of correction; (3) the files of the bureau of motor vehicles; and (4) the files of any other person who provided treatment or services to the petitioning person under a court order; *Prosecutor’s file not included

What happens upon the grant of an expungement petition under section 2 and 3? The court shall (1) Order: (A) the department of correction; (B) the bureau of motor vehicles; and (C) each:(i) law enforcement agency; and (ii) other person; who incarcerated, provided treatment for, or provided other services for the person under an order of the court; to prohibit the release of the person's records or information in the person's records to anyone without a court order, other than a law enforcement officer acting in the course of the officer's official duty. (2) Order the central repository for criminal history information maintained by the state police department to seal the person's expunged conviction records. * Prosecutor’s file not included 17

Section 2 – Misdemeanors - General Requirements Misdemeanor Convictions (includes D /Level 6 Felonies reduced to Class A misdemeanors) No filing fee Filed in “a circuit or superior court in the county of conviction” Verified Petition – served on prosecutor Burden of Proof – preponderance of the evidence Shall expunge/seal All Court records, BMV, Corrections, Court ordered treatments, ISP information sealed - expunged & sealed as described in Section 6 18

Section 2 - What Petitioner Must Show  No pending charges  Successful completion of all Sentence terms (paid all fines, fees, and court costs, and satisfied any restitution obligation)  Not convicted of a crime within last 5 years (from date of conviction) Prosecutor may agree to shorter timeframe 19

Section 3 – D/Level 6 Felonies The following D/Level 6 felony offenses are excluded from section 3:  D felonies by elected officials or candidates  Sex or violent offenders (IC )  Felony resulting in bodily injury  Murder  Human and sexual trafficking  Sex Crimes (IC )  Perjury  Official Misconduct 20

Section 3 – D/Level 6 Felonies not reduced to A misdemeanors - General Requirements  No filing fee  Filed in “a circuit or superior court in the county of conviction”  Verified Petition served on prosecutor  Burden of Proof – Preponderance of the evidence  Shall expunge/seal per section 6  Including All BMV, Corrections, Court ordered treatments, ISP information sealed (NOT Prosecutor records) 21

Section 3 – What Petitioner Must Show  No pending charges  Successful completion of all Sentence terms (paid all fines, fees, and court costs, and satisfied any restitution obligation)  Not convicted of a crime within last 8 years (from date of conviction) – prosecutor may agree to shorter timeframe 22

Section 4 - Felonies  IC (Homicide)  IC (Human/sexual Trafficking)  IC (Sex crimes)  IC (Official Misconduct)  Felony conviction that resulted in serious bodily injury to another person  Sex or violent offender as defined in IC  Elected official or a candidate for public office when convicted Applies to all other Felonies not covered by Section 3 - Does not apply to the following convictions:

Section 4 – Felony Expungement General Requirements  No filing fee  Filed in the “a circuit or superior court in the county of conviction”  Verified Petition served on prosecutor  Burden of Proof – Preponderance of the evidence  Court may order records “MARKED” as expunged  NOT sealed – file is marked “Expunged” per section 7  STILL PUBLIC RECORD 24

Section 4 – What Petitioner Must Show  No pending charges  Successful completion of all Sentence terms (paid all fines, fees, and court costs, and satisfied any restitution obligation)  Not convicted of a crime within last 8 years (from date of conviction) – prosecutor may agree to shorter timeframe 25

Section 5 - Felonies Applies to persons convicted of a felony including the following:  Elected official or a candidate for public office when convicted  Felony conviction that resulted in serious bodily injury to another person. Does not apply to person convicted of the following:  IC (Homicide)  IC (Human/sexual trafficking)  IC (Sex crimes)  IC (Official Misconduct)  Sex or violent offender as defined in IC

Section 5 – Felony General Requirements 27  No filing fee  Filed in the “a circuit or superior court in the county of conviction”  Verified Petition served on prosecutor  Burden of Proof – preponderance of the evidence  Court may order records “MARKED” as expunged  NOT sealed – file is marked “Expunged” per section 7  STILL PUBLIC RECORDS

Section 5 – What Petitioner Must Show 28  No pending charges  Successful completion of all Sentence terms (paid all fines, fees, and court costs, and satisfied any restitution obligation)  Not convicted of a crime within last 10 years (from date of conviction) – prosecutor may agree to shorter timeframe  PROSECUTOR MUST CONSENT IN WRITING TO THE EXPUNGEMENT

CAN PROSECUTORS GET THE SEALED INFORMATION? 29

Section 6(a)(2)(A) – Disclosure of Records When Misd/Felony Records Sealed Central Repository for Criminal History may disclose only to:  Prosecutor  Defense Attorney  Probation department  authorized by court order  needed to carry out official function of office (in case of probation dept. for purposes of presentence report)  FBI & Homeland Security  if disclosure is required to comply with agreement of sharing criminal history information  Others (S.Ct., law examiners, mortgage licensing officials) 30

Section -6(d) Petition to Unseal  Written application to court that granted expungement  Must show records are relevant to a new prosecution of the petitioner  If granted, the records shall be unsealed  If used in new prosecution that results in new conviction - court is NOT required to reseal records.  Otherwise, records shall be resealed at the earliest possible date 31

Section 7 - Expungements under Section 4 & 5 (Felonies)  Court and other records remain as “public records”  Must be marked clearly and visibly as “expunged”  Law enforcement, ISP, BMV and others must add entry showing expungement  Records not hidden from anyone 32

Sections 4 and 5  If court grants petition to expunge under section 4 or 5 prosecutor’s office not required to do anything with its records  Prosecutor’s office should make a notation within the file and/or in PCMS (case management system) indicating case “Marked as expunged on [insert date]” 33

Section 8 - Petition Requirements  Applies to Sections 2-5 (not section 1)  Section 8 requirements are in addition to the other section 2-5 specific requirements  Lists general section 2-5 petition requirements such as:  listing all convictions  describing any other petitions filed  evidence of completion of sentence, etc.  certified copy of BMV record  petitioner’s addresses from date of offense forward  no pending charges or investigations  prosecutor’s written consent for Section 5 petitions  shall serve a copy on the prosecutor – per rules of trial procedure Note: State Court Admin has sample forms/instructions on website 34

Section 8 – Prosecutor’s Role/Duties  Court to provide notice to prosecutor when Section 1 petitions are filed. Petitioner to serve petition on prosecutor in Section 2-5 petitions  Prosecutor shall reply within 30 days  If Prosecutor objects, court shall set hearing within 60 days (If no objection then court may grant petition without a hearing)  Prosecutor shall inform the victim of the victim’s rights in Section 2-5 petitions.  Victim may provide oral or written statement for or against - no impact on Section 1 petitions as victim not entitled to notice and court shall grant section 1 petitions. No impact on Section 2 or 3 petitions since they “shall” be granted.  Consider written permission to file a petition earlier than statutorily required timeframe  Consider written consent to file a petition under section 5 35

Miscellaneous  Petitioner must prove facts in petition are true by only a preponderance of the evidence  The grant or denial is an appealable final order  Courts may summarily deny petitions if Section 8 requirements not met or if on the face of the pleading the petitioner is not entitled to relief.  Expungement of a crime of domestic violence under section 2 [IC ] of this chapter does not restore a person's right to possess a firearm. The right of a person convicted of a crime of domestic violence to possess a firearm may be restored only in accordance with IC  Police officers still have access to records while acting in the course of their official duties (See, I.C ) 36

Section 9 – Procedure for Multiple Convictions and Subsequent Petitions (g) and (h)  Section 1 (arrest only situation) multiple petitions allowed as many times as the person desires  Sections 2-5 petitions  More than one conviction can be expunged at the same time, but must be consolidated into one petition per county  Multiple jurisdiction convictions require separate filings in each county of conviction.  Petitioner may file only one petition for expungement during his lifetime – But, they get unlimited subsequent “bites at the same apple”  All filings in separate county situations are considered 1 petition provided all petitions are filed within the same 365 day period 37

Section 9 – Procedure for Subsequent Petitions (i)  If a petition is denied in whole or in part a petitioner may file a subsequent petition for expungement with respect to one or more convictions included in the initial expungement petition that were not expunged. (subsequent petition limited to matters in the initial petition)  If a petition is denied due to an exercise of the court’s discretion under section 4 or 5 a three year waiting period is required (again, subsequent petition limited to matters in the initial petition)  No requirement that subsequent petitions must be filed in the same court – Petitioner can FORUM SHOP 38

Section 9 – Procedure for Subsequent Petitions (j)  Subsequent petition including convictions outside of initial petition allowed only if court finds that: (1) the petitioner intended in good faith to comply with subsections (g) and (h); (2) the petitioner's failure to comply with subsections (g) and (h) was due to: (A) excusable neglect; or (B) circumstances beyond the petitioner's control; and (3) permitting the petitioner to file a subsequent petition for expungement is in the best interests of justice. 39

No Waiver of right to expunge  A person may not waive the right to expungement as part of a plea agreement. I.C

Section 10 - Remedies  Unlawful to discriminate against any person with an expunged or sealed record by:  Suspending, expelling, refusing to employ, refusing to admit, grant or renew a license or otherwise discriminate  Civil rights are restored for voting, holding public office, serving as juror and owning or possessing firearm 41

Section 10 – Remedies  Employers may only ask questions such as “Have you been arrested for or convicted of a crime that has not been expunged by a court?”  Person shall be treated as if never convicted of offense  Violators commit a Class C infraction and may be held in contempt of court 42

Section 10 - Impact on Subsequent Crimes:  Court may consider prior expunged/sealed conviction in determining new sentence  Prior expunged/sealed conviction may be used for sentence enhancement and habitual offender  May use an expunged record as evidence in a criminal proceeding as though the record or conviction was not expunged 43

Issues  Public Access Requests  Driver Records – what will they look like for informing us of a driver’s history for charging purposes  Habitual Offender Charges – other counties in particular – petition to unseal  What else? 44

45