Zagorac v. State
Court of Appeals of Indiana
January 31, 2011
Holding: When opposing a petition for expungement, an agency need not prove probable cause exists, and may offer any evidence proving that petitioner should not be entitled to expungement. Furthermore, dismissal of a charge does not amount to an automatic finding of innocence, and therefore does not automatically meet the requirements of Indiana’s expungement statute.
Why This Case is Important: This case is important to understand how Indiana’s expungement statute, IC 35-38-5-1, operates. Section 35-38-5-1 is the only way to expunge records of arrest in Indiana. IC 35-38-5-1 allows expungement in two scenarios: (1) where an individual is arrested and no criminal charges are filed, or (2) when criminal charges are filed but are subsequently dropped because of a mistaken identity, no offense was actually committed, or there was an absence of probable cause.
As such, expungement is available to persons who are not charged, or to persons who are charged but have their charges dropped for any of the above-mentioned reasons. It is important to note how the court in this case treated the dismissal of the petitioner’s charge. In this case, the petitioner’s charge was dismissed because the victim, a child, was too afraid to testify. This did not amount to an absence of probable cause or mistaken identity. Furthermore, it did not amount to the category of “no offense actually committed.” Although charges are dismissed, it does not automatically mean the petitioner is not guilty or that no offense is committed. Therefore proof that the charges were dismissed, without further proof of innocence or other evidence establishing no offense was committed, does not entitle a petitioner to expungement of his record.
The statute also allows government agencies, such as the district attorney or other prosecuting governmental bodies, to oppose the expungement. An agency may submit evidence and offer reasons why expungement should not be granted. When opposing an expungement, it is important to note that agencies need not prove probable cause exists. Agencies need only offer “reasons for resisting expungement.” Ind. Code § 35-38-3-1(d). There is nothing in the statute or case law that indicates that agencies must prove probable cause exists in order to successfully oppose expungement.
Courts may then either grant the petition, set the matter for hearing, or summarily deny the petition if it is insufficient or if the petitioner is not entitled to an expungement. A court will take into consideration evidence offered by agencies that have opposed the expungement and any objections or challenges by the petitioner against agency opposition, when determining whether the petitioner is or is not entitled to expungement.
Courts have a great amount of discretion when determining whether a petitioner is not entitled to expungement. This “unfettered discretion” arises from the language the Legislature chose when it drafted Section 35-38-5-1. The statute states the court may summarily deny a petition if, based on the information submitted by agencies, the petitioner is not entitled to expungement. The statute does not set a standard by which courts are to operate; courts are therefore given wide latitude when deciding whether a petitioner is entitled to expungement relief.
Facts of This Case: In 2005, the defendant in this case was charged with child molestation. However, in 2007, the State moved to dismiss the charge because the child victim in the case was unable to testify out of fear of being in the presence of the defendant. The case was therefore dismissed.
In 2009, the defendant motioned to expunge his arrest record alleging that no offense was committed and that no probable cause existed. The Attorney General’s Office, the Indiana State Police, and the Lake County Prosecutor’s Office opposed the expungement request. The opposing agencies offered reasons for why the defendant’s motion should be denied; among those reasons, the agencies alleged that the defendant had other factually related charges, similar to the defendant’s 2005 charge. After considering the objections, the trial court summarily denied the defendant’s petition. The defendant appealed the order denying his motion.
The Court of Appeals of Indiana affirmed the trial court’s decision. The court noted that trial courts had almost unfettered discretion to summarily deny a petition for expungement. The court disagreed with the defendant’s claim that the agencies had to prove probable cause when opposing his motion, and held that the trial court acted within its discretion when it denied the defendant’s expungement petition for the reasons set forth by the state agencies.
The court also held that the dismissal of the defendant’s charge did not automatically amount to a finding of innocence. The court determined that the dismissal did not mean that no offense was committed, and therefore the dismissal did not entitle the defendant to expungement.
The Court of Appeals of Indiana thereby affirmed the trial court’s decision, and ordered the defendant’s motion be denied.
Key Language: The expungement statute gives trial court almost unfettered discretion to deny summarily a petition for expungement without hearing.
Defendant is asking that we read the reasons for resisting expungement to mean the facts demonstrating probable cause. But if our Legislature wanted to require that agencies show probable cause, it could have written that requirement into the statute. The Legislature did not use such language, and we decline to graft such a requirement onto the statute.
We find no merit in defendant’s assertion that the dismissal of the charge against him, without more, entitled him to expungement of the record of the arrest underlying that charge.
Expert Advise: “This case offers a detailed explanation of how IC 35-38-5-1 operates and what type of dismissed case is eligible to be expunged in Indiana. It is a great place to start for those seeking to understand how the Indiana arrest record expungement law works.” -Attorney Mathew Higbee.
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