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Applying Prospective Statutes Retroactively: A New Take on Expungements

August, 2023

Indiana’s Expungement Statute gives those who have been convicted of a crime a second chance at employment and other meaningful opportunities.  Though not all crimes are expungable (removed and/or sealed from a criminal record), Indiana’s statute prohibits employers and other organizations from discriminating against a person who has expunged a variety of convictions from the person’s record.  See Indiana Code 35-38-9-1 et. seq.

Generally, a person convicted of a misdemeanor is eligible for expungement five years from the date of her sentencing, while those convicted of a felony must wait eight years.  While petitions for arrest-only offenses may be expunged as many times as needed over the course of a lifetime, the expungement of conviction offenses is a once-per-lifetime opportunity.  If a person seeks a successful expungement of a conviction and then commits another crime resulting in a conviction, she cannot seek a second expungement.

The high-stakes nature of the conviction expungement petition as well as some recent changes in the law are reasons you may consider the assistance of an attorney in the expungement process. Recent Changes in Indiana’s Expungement Law

In June 2020, with the help of students from Indiana University Robert H. McKinney School of Law’s Civil Practice Clinic, the Indiana Supreme Court importantly clarified Indiana’s expungement law in Gulzar v. State, No. 19S-XP-673, 2020 WL 3445732 (Ind. 2020). Specifically, the case explained the previous ambiguity regarding the timeframe within which to seek an expungement.  This ambiguity involved the following question: for purposes of seeking an expungement, is the “date of conviction” the date upon which the court reduces a sentence from felony to misdemeanor?  Or is the applicable date the original conviction date?

In Gulzar, the petitioner, Mr. Gulzar, had pleaded guilty to a Class D felony in 2006. Ten years later, in August 2016, after numerous petitions to convert his conviction to a misdemeanor, the trial court finally reduced his felony conviction to a misdemeanor.  After the 2016 conversion of his conviction, Mr. Gulzar attempted to expunge the misdemeanor conviction under Ind. Code 35-38-9-2, which applies to a person convicted of a minor felony that is subsequently reduced to a misdemeanor.

However, when Mr. Gulzar petitioned for expungement, he was unsure whether the “date of conviction” was the 2006 conviction date or the 2016 conversion date.  Unfortunately for Mr. Gulzar, the trial court reasoned that the “date of conviction” for expungement purposes was the 2016 conversion date instead of the 2006 date of conviction.   The Court told Mr. Gulzar he would have to continue to wait five years for his expungement.

A divided appellate court affirmed, and Mr. Gulzar petitioned for transfer to the Indiana Supreme Court.

Fortunately for Mr. Gulzar, a few weeks later, the General Assembly amended Ind. Code 35-38-9-2 to clarify the timeline such that Mr. Gulzar would, in fact, be entitled to an expungement. The General Assembly clarified that the date of Mr. Gulzar’s original felony conviction in 2006 was the applicable date for the purposes of his expungement petition, rather than the 2016 conversion date.

But does this amendment apply retroactively? According to the Supreme Court and with the help of skilled student advocacy, yes.  Mr. Gulzar was entitled to his expungement from the date of his original conviction in 2006.

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