Expungement / Record Sealing Petition and Eligibility Memo — Indiana

Expungement / Record Sealing Petition and Eligibility Memo (INDIANA)

Quick-Reference Summary

PART A — ELIGIBILITY MEMO

MEMORANDUM

TO: [CLIENT]
FROM: [ATTORNEY]
DATE: [__/__/____]
RE: Eligibility for Expungement Under Indiana's Second Chance Act (Ind. Code § 35-38-9 et seq.)
PRIVILEGED & CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / WORK PRODUCT

I. Executive Summary

Indiana's Second Chance Act, Ind. Code § 35-38-9, provides a tiered expungement framework with five distinct provisions corresponding to offense severity. The Act imposes a once-per-lifetime opportunity for conviction expungements: all petitions to expunge convictions, regardless of the county in which the conviction was entered, must be filed within a single rolling 365-day window. Missing a conviction in this window permanently bars its expungement. Arrest and non-conviction records under § 35-38-9-1 are not subject to the once-per-lifetime rule and may be expunged repeatedly. The Indiana Supreme Court's decision in Gulzar v. State, 147 N.E.3d 957 (Ind. 2020), clarified that the "date of conviction" for purposes of expunging a Class D or Level 6 felony that has been converted to a misdemeanor is the original felony conviction date, not the conversion date — and that the 2020 amendment to § 35-38-9-2 applies retroactively. Eligibility further requires that the petitioner has no pending criminal charges, has completed all aspects of the sentence, has paid all fines, costs, fees, and restitution, and has not been convicted of a new crime during the applicable waiting period.

II. Governing Law

1. Ind. Code § 35-38-9-1 — Expungement of arrest records and non-convictions. No filing fee. Mandatory if statutory conditions met.
2. Ind. Code § 35-38-9-2 — Expungement of misdemeanors and Class D / Level 6 felonies reduced to misdemeanors. 5-year wait. Mandatory.
3. Ind. Code § 35-38-9-3 — Expungement of Class D / Level 6 felony convictions without bodily injury. 8-year wait. Mandatory.
4. Ind. Code § 35-38-9-4 — Expungement of more serious felony convictions without serious bodily injury. 8-year/3-year wait. Discretionary.
5. Ind. Code § 35-38-9-5 — Expungement of felony convictions where serious bodily injury was an element. 10-year/5-year wait. Requires prosecutor's written consent.
6. Ind. Code § 35-38-9-6 — Procedure and petition contents.
7. Ind. Code § 35-38-9-7 — Notice; hearing; victim rights.
8. Ind. Code § 35-38-9-8 — Effect of expungement; civil-rights restoration.
9. Ind. Code § 35-38-9-9 — Offenses ineligible for expungement.
10. Ind. Code § 35-38-9-10 — Anti-discrimination provision (Class C infraction).
11. Gulzar v. State, 147 N.E.3d 957 (Ind. 2020) — "date of conviction" for converted D/Level 6 felonies is original conviction date; retroactive application of 2020 amendment.

III. Five-Tier Eligibility Framework

Tier 1 — § 35-38-9-1 (Arrest / Non-Conviction Records)

Tier 2 — § 35-38-9-2 (Misdemeanors / Reduced D/Level 6 Felonies)

Tier 3 — § 35-38-9-3 (Class D / Level 6 Felonies Without Bodily Injury)

Tier 4 — § 35-38-9-4 (Other Felonies Without Serious Bodily Injury)

Tier 5 — § 35-38-9-5 (Felonies With Serious Bodily Injury — Prosecutor Consent Required)

IV. Categorical Exclusions (§ 35-38-9-9)

The following persons are categorically ineligible for any conviction expungement under §§ 35-38-9-2 through 35-38-9-5 (arrest-only expungement under § 35-38-9-1 may still be available):

(a) Sex or violent offenders, as defined by Indiana statute;
(b) Persons convicted of official misconduct (Ind. Code § 35-44.1-1-1);
(c) Persons convicted of homicide;
(d) Persons convicted of human trafficking offenses;
(e) Persons convicted of two (2) or more separate felony offenses involving the unlawful use of a deadly weapon that did not arise out of an episode of criminal conduct.

V. The Once-Per-Lifetime / 365-Day Window Rule

A conviction expungement under §§ 35-38-9-2 through 35-38-9-5 is a once-per-lifetime opportunity. ALL petitions to expunge convictions, across ALL Indiana counties, must be filed within a single rolling 365-day window. The clock starts when the petitioner files the first conviction expungement petition; the petitioner has 365 days to file petitions for all other convictions across all counties.

CRITICAL PRACTICE NOTE: If a client has convictions in multiple counties, you MUST identify every Indiana conviction BEFORE filing the first petition. A common malpractice trap: filing in one county, then discovering a forgotten conviction in another county more than 365 days later. The forgotten conviction is permanently barred from expungement. Pull a complete state-wide criminal-history report from the Indiana State Police BEFORE filing.

VI. Effect of Gulzar v. State (Ind. 2020)

Gulzar v. State, 147 N.E.3d 957 (Ind. 2020), held that for purposes of § 35-38-9-2, the "date of conviction" for a Class D/Level 6 felony that is later converted to a misdemeanor is the original felony conviction date, NOT the date of conversion. The 2020 amendment to § 35-38-9-2 codifying this rule applies retroactively, meaning petitioners whose felonies were converted to misdemeanors more than 5 years after the original conviction may be immediately eligible.

VII. Effect of Expungement (§ 35-38-9-8)

(a) Civil rights restored: Right to vote, hold public office, and serve on a jury (subject to other Indiana provisions) restored upon expungement.

(b) Anti-discrimination (§ 35-38-9-10): It is a Class C infraction to discriminate against a person with an expunged conviction in:

• Employment;
• Admission to an educational institution;
• Eligibility for housing;
• Eligibility for any state or local license, permit, or certificate.

(c) Effect on disclosure obligations: In most contexts, a person with an expunged conviction may answer "no" when asked about prior arrests or convictions. Exceptions apply for law enforcement, certain professional licensing (e.g., judicial, certain healthcare), and pending federal disclosures.

(d) Records retained: Even after expungement, records remain accessible to law enforcement, prosecutors, and courts for limited purposes (e.g., sentencing in future cases, repeater enhancement under Indiana habitual-offender provisions).

VIII. Procedure (§§ 35-38-9-6, 35-38-9-7)

1. Petition contents (§ 35-38-9-6): verified petition listing dates of arrest/charge/conviction; offense; county of conviction; sentencing court; arresting agency; case number; identifying information including DOB and SSN.

2. Service: Court shall serve a copy on the prosecuting attorney.

3. Prosecutor's response: Prosecutor has 30 days to file a response.

4. Victim notification (§ 35-38-9-7): Prosecutor must make reasonable effort to notify victim if the offense was a violent or sex offense.

5. Hearing: Court holds a hearing if statutorily required or if requested by any party. For § 35-38-9-2 and § 35-38-9-3, no hearing is required if conditions are met.

6. Order: If granted, court orders sealing/expungement of:
   - Court records;
   - Indiana State Police repository records;
   - Arresting agency records;
   - Probation records.

IX. Strategic Recommendation

[ATTORNEY MUST CUSTOMIZE — sample language follows.]

Based on the state-wide criminal-history report dated [__/__/____], the applicant should pursue the following sequenced approach:

1. [First] Pull complete Indiana State Police criminal-history report and verify ALL convictions and arrests across ALL Indiana counties;
2. [Second] Confirm no pending charges and verify all financial obligations satisfied;
3. [Third] Calculate waiting period for each offense (using Gulzar original-felony-date rule for any converted D/Level 6 felonies);
4. [Fourth] Confirm no categorical exclusions under § 35-38-9-9 apply;
5. [Fifth] File petitions in ALL counties of conviction within a single 365-day window;
6. [Sixth] For § 35-38-9-4 / 5 petitions, engage prosecutor early to assess discretionary granting / consent.

PART B — PETITION TEMPLATE

STATE OF INDIANA

VERIFIED PETITION FOR EXPUNGEMENT OF CONVICTION RECORDS PURSUANT TO IND. CODE § 35-38-9-[1 / 2 / 3 / 4 / 5]

Petitioner, [PETITIONER NAME], by counsel, pursuant to Indiana Code § 35-38-9 et seq., hereby petitions this Court to expunge the records identified below.

I. Petitioner Information

1. Full legal name: [NAME]
2. Date of birth: [__/__/____]
3. Social Security Number: [XXX-XX-XXXX]
4. Driver's license number: [____]
5. Current address: [ADDRESS]
6. Aliases / other names used: [LIST OR "NONE"]

II. Record(s) Sought to Be Expunged

7. The petitioner seeks expungement of the following:

8. Arresting law enforcement agency: [AGENCY]
9. Arresting officer (if known): [NAME]

III. Statutory Basis for Expungement

[Select applicable subsection — only one per petition; file separate petition for each different category.]

☐ § 35-38-9-1 (Arrest / Non-Conviction Records). Petitioner avers:
(i) The arrest/charge listed above did not result in a conviction OR the conviction was vacated on appeal;
(ii) Petitioner is not currently participating in a pretrial diversion program;
(iii) At least one (1) year has passed since the arrest, charge, or final opinion vacating conviction;
(iv) No criminal charges are pending against petitioner.

☐ § 35-38-9-2 (Misdemeanor / Reduced D/Level 6 Felony). Petitioner avers:
(i) At least five (5) years have passed since the date of conviction (using original felony date for any converted D/Level 6 felony, per Gulzar v. State, 147 N.E.3d 957 (Ind. 2020));
(ii) Petitioner has completed all sentencing obligations, including probation/parole, fines, costs, fees, and restitution;
(iii) Petitioner has not been convicted of any crime within the five-year period;
(iv) No criminal charges are pending against petitioner.

☐ § 35-38-9-3 (Class D / Level 6 Felony — No Bodily Injury). Petitioner avers:
(i) The conviction was a Class D or Level 6 felony that did NOT involve bodily injury to another person;
(ii) At least eight (8) years have passed since the date of conviction (or shorter period agreed in writing by the prosecuting attorney);
(iii) Petitioner has completed all sentencing obligations and paid all financial obligations;
(iv) Petitioner has not been convicted of any crime in the eight-year period;
(v) No criminal charges are pending against petitioner.

☐ § 35-38-9-4 (More Serious Felony — No Serious Bodily Injury — Discretionary). Petitioner avers:
(i) The conviction was a felony higher than Class D / Level 6 that did NOT result in serious bodily injury;
(ii) The later of (A) eight (8) years from conviction or (B) three (3) years from completion of sentence has elapsed;
(iii) All financial obligations satisfied;
(iv) No new convictions in the waiting period;
(v) No pending charges;
(vi) Expungement is in the best interests of justice and consistent with public safety.

☐ § 35-38-9-5 (Felony — Prosecutor Consent Required). Petitioner avers:
(i) The conviction is not categorically excluded under § 35-38-9-9;
(ii) The later of (A) ten (10) years from conviction or (B) five (5) years from completion of sentence has elapsed;
(iii) All financial obligations satisfied; no new convictions; no pending charges;
(iv) The prosecuting attorney has given written consent (attached as Exhibit A).

IV. Categorical Eligibility (§ 35-38-9-9)

10. Petitioner is NOT categorically excluded under § 35-38-9-9:
    - ☐ Not a sex or violent offender as defined by Indiana law
    - ☐ Not convicted of official misconduct
    - ☐ Not convicted of homicide
    - ☐ Not convicted of a human trafficking offense
    - ☐ Has fewer than two (2) felony convictions involving unlawful use of a deadly weapon

V. 365-Day Window Disclosure

11. ☐ This is the petitioner's FIRST conviction expungement petition. Petitioner understands that any additional conviction expungement petitions must be filed within 365 days of this filing.

☐ Petitioner's first conviction expungement petition was filed on [__/__/____] in [COUNTY], and this petition is filed within the 365-day window.

12. Petitioner has identified ALL Indiana convictions and arrests via Indiana State Police records, attached as Exhibit B.

VI. Supporting Evidence

13. Attached:
    - ☐ Exhibit A — Prosecutor's written consent (§ 35-38-9-5 only)
    - ☐ Exhibit B — Indiana State Police criminal-history report
    - ☐ Exhibit C — Proof of sentence completion (probation discharge order, completion certificate)
    - ☐ Exhibit D — Proof of payment of all fines, costs, fees, restitution
    - ☐ Exhibit E — Petitioner's affidavit
    - ☐ Exhibit F — Letters of support (recommended for §§ 35-38-9-4 and 35-38-9-5)
    - ☐ Exhibit G — Proposed order

VII. Prayer for Relief

WHEREFORE, petitioner respectfully requests that this Court:

(a) Set this matter for hearing if required, or grant the petition on the papers if § 35-38-9-1, § 35-38-9-2, or § 35-38-9-3 applies;
(b) Find petitioner eligible for expungement under the cited subsection;
(c) Order:
(1) The clerk to seal/expunge all court records relating to the above-listed cause(s);
(2) The Indiana State Police to seal/expunge its repository records;
(3) The arresting agency to seal/expunge its records;
(4) All other law enforcement agencies in possession of records to seal/expunge same;
(d) Restore petitioner's civil rights pursuant to § 35-38-9-8;
(e) Grant such further relief as is just.

VERIFICATION

I, [PETITIONER NAME], affirm under penalties for perjury that the foregoing representations are true to the best of my knowledge and belief.

Signed: _________________________________
[PRINTED NAME], Petitioner
Date: [__/__/____]

Respectfully submitted,

_________________________________
[ATTORNEY NAME], Atty No. [____]
[FIRM NAME]
[ADDRESS]
[PHONE / EMAIL]
Counsel for Petitioner

CERTIFICATE OF SERVICE

I certify that on [__/__/____], a copy of the foregoing was served on:

• Prosecuting Attorney for [COUNTY]
• Indiana State Police, Criminal History Repository
• [ARRESTING AGENCY]

_________________________________
[ATTORNEY NAME]

PART C — FILING CHECKLIST

C.1 — Pre-Filing Diligence

☐ Pull statewide Indiana State Police criminal-history report
☐ Identify EVERY Indiana arrest, charge, and conviction (across all counties)
☐ Confirm county of conviction for each offense
☐ Confirm offense class/level (verify against the version of statute in effect at conviction)
☐ Confirm date of conviction (for converted D/Level 6 felonies, use ORIGINAL felony date per Gulzar)
☐ Calculate waiting period for each offense
☐ Verify no pending criminal charges
☐ Verify all fines/costs/fees/restitution paid (obtain receipts/discharge documents)
☐ Verify no new convictions during applicable waiting period
☐ Check categorical exclusions under § 35-38-9-9
☐ For § 35-38-9-5: contact prosecutor's office to negotiate written consent BEFORE filing

C.2 — 365-Day Window Planning

☐ Map all convictions across all counties on a timeline
☐ Confirm with client that no convictions are missing from the plan
☐ Identify which county to file in FIRST (typically the county with the most serious or oldest conviction)
☐ Set calendar reminders for the 365-day deadline
☐ Prepare petitions for all counties in parallel BEFORE filing first petition

C.3 — Document Assembly

☐ Verified petition (Part B above) for each county/category
☐ Indiana State Police criminal-history report
☐ Proof of sentence completion (probation discharge, parole completion)
☐ Proof of restitution paid in full
☐ Proof of fines/costs/fees paid
☐ Prosecutor's written consent (§ 35-38-9-5 only)
☐ Letters of support (§§ 35-38-9-4, 35-38-9-5)
☐ Petitioner's affidavit
☐ Proposed order

C.4 — Filing

☐ File in circuit/superior court in EACH county of conviction
☐ Pay civil filing fee (typically $156–$176 per petition; varies by county) — NO fee for § 35-38-9-1
☐ Indigent fee waiver if applicable
☐ Serve prosecuting attorney for each county
☐ Serve Indiana State Police repository
☐ Serve arresting law-enforcement agency
☐ File certificate of service in each county

C.5 — Post-Filing

☐ Calendar prosecutor's 30-day response window in each county
☐ Prepare for hearing (mandatory for § 35-38-9-4 and § 35-38-9-5; otherwise discretionary)
☐ Bring criminal-history report, financial-obligation receipts, supporting documents to hearing
☐ Upon grant: confirm Indiana State Police seals/expunges repository entry
☐ Confirm court clerk seals/expunges court file
☐ Confirm arresting agency seals/expunges
☐ Provide certified copies of order to client

C.6 — Post-Expungement Client Counseling

☐ Client may answer "no" to questions about arrest/conviction in most employment, education, housing, and licensing contexts
☐ Anti-discrimination provision (§ 35-38-9-10) is enforceable — Class C infraction for violations
☐ Federal disclosures, certain professional licenses, and law-enforcement applications may still require disclosure
☐ Indiana State Police retain records for limited law-enforcement purposes
☐ Provide client with certified order and explain how to respond to background-check disputes
☐ For § 35-38-9-4 / 5 expungements: explain that record remains publicly viewable with expungement notation

SOURCES AND REFERENCES

• Ind. Code § 35-38-9 et seq. (Second Chance Act): https://iga.in.gov/laws/2024/ic/titles/35#35-38-9
• Ind. Code § 35-38-9-1 (arrest expungement): https://iga.in.gov/laws/2024/ic/titles/35#35-38-9-1
• Ind. Code § 35-38-9-2 (misdemeanor expungement): https://iga.in.gov/laws/2024/ic/titles/35#35-38-9-2
• Ind. Code § 35-38-9-3 (Class D/Level 6 felony expungement): https://iga.in.gov/laws/2024/ic/titles/35#35-38-9-3
• Ind. Code § 35-38-9-4 (other felony expungement — discretionary): https://iga.in.gov/laws/2024/ic/titles/35#35-38-9-4
• Ind. Code § 35-38-9-5 (felony expungement — prosecutor consent): https://iga.in.gov/laws/2024/ic/titles/35#35-38-9-5
• Ind. Code § 35-38-9-9 (categorical exclusions): https://iga.in.gov/laws/2024/ic/titles/35#35-38-9-9
• Gulzar v. State, 147 N.E.3d 957 (Ind. 2020): https://scholar.google.com/scholar_case?case=13034628432196052641
• Indiana Public Defender Council, IC 35-38-9 Chapter 9: https://www.in.gov/ipdc/files/TITLE35_AR38_ch9.pdf
• Indiana Office of Court Services Expungement Resources: https://www.in.gov/courts/ojas/expungement/
• Indiana State Police Criminal History records: https://www.in.gov/isp/2347.htm