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Law Blog

This blog is dedicated to bringing new information to the public about new/updated laws in Indiana. All blog entries are written and submitted by our attorneys.
SECOND CHANCES- INDIANA’S NEW CRIMINAL EXPUNGEMENT STATUTE

By now, many of you may have heard about the new law in Indiana that went into effect on July 1, 2013, commonly referred to as Indiana’s Second Chance Statute. For years, Indiana law allowed individuals with a criminal history to seek a second chance, however, such a request was rarely granted and many Hoosiers were left haunted by their criminal past (usually a slight lapse in judgment or criminal conviction when the individual was ten, twenty or even thirty years or more younger). Indiana Code 35-38-9 has significantly changed the ways in which an expunging a criminal record is sought and in many ways has made it substantially easier to erase a checkered past or prior youthful conviction.

Unfortunately, there are many complexities with the new law and many individuals have unsuccessfully sought to seek an expungement on their own, without the assistance of counsel. Strict requirements exist to those seeking an expungement. If the Court finds that one of these requirements has not been met, they are likely to deny your expungement and you may lose your one and only attempt to seek a second chance. At best case, if the Court denies your expungement, you will be forced to wait at least three years to file your expungement a second and final time. However, any new crimes incurred during this period or any crimes mistakenly omitted from the initial petition for expungement will not be entertained by the Court.

A successful Petition for Expungement will meet the following requirements, which are broken down into four categories:

Expungement of a Prior Arrest Record:

Expungement now exists for an individual that was arrested, but that did not ultimately end up with a conviction (such as your case was dismissed, the State decided against pressing charges or through other Pre-Trial measures). This also applies if you were initially convicted but subsequently had your conviction vacated on appeal. Even though you may feel that employers will not hold this against you because there was not a conviction, the information remains in your criminal history background and you may be questioned about this prior arrest in an interview or, worse, you may be disqualified from a perspective employment.

The only requirements that you must meet in order to have a prior arrest record, that did not result in a conviction, expunged is the passage of one year and that there are no criminal charges pending against you. If the Court finds by clear and convincing evidence (a burden slightly below proof beyond a reasonable doubt) that you meet these requirements, the Court shall order your arrest record expunged.

Expungement of any Misdemeanor or a D Felony Subsequently Reduced to a Misdemeanor Conviction

A misdemeanor or D Felony conviction can easily result from a slight lapse in judgment. Even if you were lucky enough to have your D Felony reduced to a misdemeanor conviction, your prior slight lapse in judgment can continue to haunt you throughout the remainder of your life. For example, many individuals seeking to enter the nursing field have found that prior petty drug charges have delayed or completely barred their ability to enter nursing school or, worse, sit for the professional boards.

The requirements for expungement of a misdemeanor or D Felony conviction subsequently reduced to a misdemeanor are stricter than those for expungement of a simple arrest record. The five requirements that must be shown by clear and convincing evidence are: 1) the passage of a five year period of time from the date of conviction; 2) no existing or pending driver’s license suspension exists; 3) no pending criminal charges; 4) no other criminal convictions in the previous five years; and 5) successful completion of the terms of the sentence and/or probation for the crime(s) seeking to be expunged.

If the Court finds by clear and convincing evidence (again a burden slightly below proof beyond a reasonable doubt) that you meet these requirements, the Court shall order your criminal record expunged.

Expungement of a minor D Felony conviction (that was not reduced to a misdemeanor conviction)

If you were convicted of a minor D Felony (one that did not involve serious bodily injury to another person, perjury or a sexual or violent offense), the law still provides that the Court shall order your criminal record expunged if you are able to satisfy the requirements listed below through clear and convincing evidence. The requirements that must be satisfied are: 1) the passage of an eight year period of time from the date of conviction; 2) no existing or pending driver’s license suspension exists; 3) no pending criminal charges; 4) no other criminal convictions in the previous eight years; and 5) successful completion of the terms of the sentence and/or probation for the crime(s) seeking to be expunged.

Expungement of other Felony convictions

If you were convicted of a less serious D Felony (one that did not involve bodily injury to another person or a sexual or violent offense), the law provides that the Court may order your criminal record expunged if you are able to satisfy the requirements listed below through clear and convincing evidence. The requirements that must be satisfied are: 1) the passage of an eight year period of time from the date of conviction; 2) no existing or pending driver’s license suspension exists; 3) no pending criminal charges; 4) no other criminal convictions in the previous eight years; and 5) successful completion of the terms of the sentence and/or probation for the crime(s) seeking to be expunged.

If you were convicted of a serious D Felony (one that did not involve a sexual or violent offense), the law provides that the Court may order your criminal record expunged if you are able to satisfy the requirements listed below through clear and convincing evidence. The requirements that must be satisfied are: 1) the passage of a ten year period of time from the completion of the sentence; 2) no existing or pending driver’s license suspension exists; 3) no pending criminal charges; 4) no other criminal convictions in the previous ten years; 5) successful completion of the terms of the sentence and/or probation for the crime(s) seeking to be expunged; and 6) the consent of the Prosecutor in writing.

A few final thoughts on Indiana’s New Criminal Expungement Law: the law basically acts as a one-time get out of jail free card. The Court may only expunge your criminal history one time on your life; however that Petition for Expungement may address multiple convictions. Although you must file in the County from which the criminal history arose, you may file a Petition for Expungement in multiple counties provided that they are filed within 365 days of each other. One of the main requirements that trip up many would be eligible individuals is the requirement that you cannot have a current or existing driver’s license suspension in any state in which you hold a driver’s license.

If you are interested in learning more about expunging or sealing your record, call the Law Offices of Charles P. Dargo today and we gladly assist you through the process and ensure that you maximize your opportunity at a second chance.
INDIANA’S NEW CRIMINAL CODE, EFFECTIVE JULY 1, 2014, PART I

For the first time in recent history, Indiana has implemented a complete overhaul of the Criminal Code, effective July 1, 2014. This is Part 1 of a multi-part entry on the modifications of the Indiana Criminal Code and the changes you can expect to encounter should you unfortunately be brought before the criminal justice system.

Perhaps most significantly, beginning with crimes committed on and after July 1, 2014, you would be required to serve 75% of any imposed sentence. Currently,Indiana law allows an individual to only serve 50% of his sentence, as long as that individual does not lose his good-time credit. While this is, most undoubtedly, an extreme measure, Indiana has countered this substantial increase in sentence requirements by lessening many of the State’s drug-related charges. Thus, while you would be required to serve a greater percentage of your sentence, it is likely that you will ultimately spend less time in jail. For example, I recently read about an individual who was convicted of dealing meth and conspiracy to deal meth, charges which are currently Class B felonies and each carries a sentence of six (6) to twenty (20) years in prison, and sentenced to sixteen (16) years in prison. Under the current Criminal Code, assuming no loss of good-time credit, this individual would only be required to serve eight (8) years, due to Indiana’s current 50% statute. Under the new Indiana code, these charges become Level 4 felonies and carry a sentence of two (2) to twelve (12) years in prison. Even with the new 75% rule, the same individual would likely only serve six (6) years.

Another major change, as briefly mentioned above, is the reclassification of felonies. Currently,Indiana operates under a Class A, Class B, Class C, and Class D felony system, with Class A being the most severe and Class D being the least severe. Starting July 1, 2014, Indiana will reclassify felonies under a Level One (1) through Level Six (6) system, with Level One (1) being the most severe and Level Six (6) being the least severe.

The current breakdown of possible felony sentences is: Class A- Twenty (20) to Fifty (50) years; Class B- Six (6) to Twenty (20); Class C- Two (2) to Eight (8) years; and Class D- Six (6) months to Three (3) years. Under the new system, beginning July 1, 2014, a Class A felony is reclassified as either a Level One (1) or Level Two (2) felony, with a Level One (1) carrying a possible sentence of Twenty (20) to Fifty (50) years and a Level Two (2) carrying a possible sentence of Ten (10) to Thirty (30) years. Keeping with the same pattern, a Class B felony is reclassified as either a Level Three (3) or Level Four (4) felony, with a Level Three (3) carrying a possible sentence of Six (6) to Twenty (20) years and a Level Four (4) Felony carrying a possible sentence of Two (2) to Twelve (12) years. A current Class C felony has been reclassified as a Level Five (5) felony, with the sentence range being One (1) year to Six (6) years. Finally, a current Class D felony has been transitioned into a Level Six (6) felony, with the sentence term being Six (6) months to Two (2) and One-Half (1/2) years.
INDIANA’S NEW CRIMINAL CODE, EFFECTIVE JULY 1, 2014, PART II

In Part II of this Blog entry, I would like to discuss other pertinent changes to the Indiana Criminal Code, as well as changes being made to the ability of a defendant to petition the Court for modification of his sentence.

Felony Enhancement for Dealing in Controlled Substances

One of the most substantial felony enhancements that currently exist are those that deal with controlled substances and “drug free zones.” Specifically, certain dealing and manufacturing crimes, such as controlled substances, were enhanced by the mere fact that the crime was allegedly committed within 1000 feet of a school, family housing complex or youth program center. The exact definition and existence of a family housing complex or youth program center were vague, at best, and many defendants fell victim to these enhancements simply because they did not realize that a certain structure was a family housing complex or youth program center. These enhancements were often unfair and often prohibited defendants from negotiating a plea agreement (and forced to proceed to trial) due to the enhanced sentences.

Under the new criminal code, the terms family housing complex and youth program center have been removed, and the distance parameter has been decreased from 1000 feet to 500 feet. Additionally, in order to be convicted under the new enhancement language, it must be found that the offense was committed “while a person under 18 years of age was reasonably expected to be present.” The designated restricted areas are now termed as on a school bus, in/on/within 500 feet of school property or a public park. 

Other controlled substance enhancements that have been implemented by Indiana, likely to offset the perceived leniency, are as follows: 1) a prior conviction for dealing in a controlled substance (other than marijuana, hash oil, hashish or salvia); 2) commission of the offense while in possession of a firearm; 3) the person manufactured or financed the manufacture of the drug; and 4) the person committed the offense in the physical presence of a child less than 18 years of age, knowing that the child was present and might be able to see or hear the offense. Essentially, if you are alleged to have committed a crime of dealing a controlled substance, your potential sentence will likely be significantly enhanced if there are allegations that you did so 1) on a school bus; 2) within 500 feet of school property or public park while a person under 18 was reasonably expected to be found; 3) have a firearm in your possession; 4) a child under 18 is present in any sort or fashion; 5) you are alleged to have manufactured or assisted in the manufacture of the controlled substance and 6) you have a prior conviction for dealing a controlled substance. 

While the new criminal code is perceived to be softer on drug offenses in general, as you can hopefully see, there now exist many additional avenues of potential pitfalls for which you could find yourself in trouble. If you ever find yourself in trouble, or simply have questions about the new criminal code and your rights, we are always available to assist you. Please do not hesitate to call or email us!

Suspendibility of Sentences

As you may be aware, currently, in most situations the Court may not suspend your sentence below the minimum mandatory sentence if you are convicted of certain serious crimes or have a prior unrelated felony conviction. As of July 1, 2014, the Court may suspend any part (including all) of a sentence for a Level 6, Level 5, Level 4, Level 2 or 3 controlled substance felony, and Level 2 or 3 non-controlled substance felonies if the person does not have a prior unrelated felony conviction. Additionally, the Court may suspend any part above the minimum sentence for Murder, Level 1, and Level 2 or 3 non-controlled substance felonies if the person has a prior unrelated felony conviction.

There are many other additional nuisances to ensuring that you do not serve 1 day more than you are otherwise required to in jail, prison or any other type of criminal confinement. Now, more than ever, it is important that you have trained and qualified legal counsel to defend your rights and ensure you are protected. 

Modification of Sentences

One of the other areas of law that have troubled many defendants, and the family of the defendants, is the ability, or lack thereof, to modify one’s sentence. If you, or any friend or family member, has come into contact with the judicial system, you can probably attest to the difficulties faced when attempting to secure a Sentence Modification. As of July 1, 2014, your chances of a successful modification will increase, provided that you are able to sufficiently navigate the new criminal code.

Under the amended law, the Court may reduce/suspend any sentence imposed and enact any sentence that the Court could have ordered at sentencing. For once, Indiana seems to be providing a safe haven for those that are unfortunately convicted and are rehabilitated. One good aspect is that the Prosecutor’s consent is NOT required, meaning that the Court has the ability to override the State’s objection and grant your request if they are otherwise convinced you have been rehabilitated. Obviously, you cannot seek to modify a term of a bargained Plea Agreement. However, if any term of the Plea Agreement is left to the Court’s discretion, such as length of sentence or placement of incarceration.

It is important to note that you can only file 1 Petition to Modify per year and no more than 2 during the term of your sentence. Thus, it is extremely important that you tread carefully in your modification attempts and retain the Law Offices of Charles P. Dargo to ensure that you do not waste your limited opportunities to enact your constitution rights.

Coming next month: Indiana’s enhanced criminal code, effective July 1, 2014, Part III.

Coming soon: Knowing your rights, always be prepared in case you come into contact with the criminal justice system.

If you have issues that you would like to be discussed in an upcoming, please email us as dargo@bettercallmylawyer.com or call us at (219) 345-3114.
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