Judges disagree on remand instructions

Indiana Court of Appeals judges unanimously agreed today that a defendant's petition for expungement of his arrest shouldn't have been denied by the trial court, but they disagreed as to what should happen on remand.

The trial court summarily denied Steven T. Gerber's petition for expungement of his arrest, but the trial court could only do this per statute if there was notice of opposition filed by the prosecutor or if it found Gerber's petition to be insufficient. The trial judge in his case rejected the petition without a hearing because the judge believed Gerber had to wait until the statute of limitations to file charges ran out before his arrest could be expunged. The prosecutor didn't file a notice of opposition nor did the judge find the petition to be insufficient.

In Steven T. Gerber v. State of Indiana, No. 02A03-0902-CR-73, Judges Melissa May and Michael Barnes and Chief Judge John Baker agreed that the statute of limitations for an offense is not the appropriate guideline to determine whether a petition for expungement may be granted. The court noted there is no statute of limitations on a person arrested for any Class A felony, so someone falsely arrested may never have that arrest expunged.

Even though meaning of the term "insufficient" in the expungement statute remains unclear, Judge May remanded with instructions to either summarily grant Gerber's petition, set the matter for a hearing, or summarily deny the petition after finding it to be insufficient.

Judge May also concluded the prosecutor shouldn't be permitted to participate on remand. Even though the prosecutor failed to file a notice of opposition, the trial judge later allowed the prosecutor to file a brief opposing Gerber's petition.

Judge Barnes dissented from his colleagues with regards to the prosecutor's participation on remand. He wrote participation may take place in many shapes and forms and a blanket prohibition on participation by the prosecutor could unfairly, and perhaps unknowingly, inhibit conduct that would otherwise be helpful and proper.

In his dissent, Chief Judge Baker wrote the trial court shouldn't have the option to summarily deny Gerber's petition on remand because the trial judge didn't find his petition to be insufficient and no law enforcement agency filed a notice of opposition to the expungement.

"I see no reason to give the trial court a second chance to review Gerber's petition and change its decision; nothing in the underlying facts or law has changed since the trial court's initial order was entered," he wrote.