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I am (67) years old I committed a crime in 1972 in Fort Wayne…

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I am (67) years old...
I am (67) years old I committed a crime in 1972 in Fort Wayne Indiana, went to prison, got out on good behavior in November, 1975. Twenty years later I received clemency from the from the state of Indiana. I finish school I am a Substance Abuse, Mental Health Therapist. Detroit, Michigan extradite me to Michigan for child support they put me on probation and until my rears were paid. I have worked in the human service field as a certified Addiction professional, with a Masters degree in psychology of mental Health degree. I am married, a Imam (minister in the mosque/ Islam) I need to be able to have a gun in my home to protect me and my family. is there any thing I can do to get my rights resorted.
Submitted: 3 years ago.Category: Legal
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Answered in 36 minutes by:
6/2/2015
Lawyer: RobertJDFL, Attorney replied 3 years ago
RobertJDFL
RobertJDFL, Attorney
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Thank you for your question.
I have to tell you that it's almost impossible under Indiana law. Since the crime occurred in Indiana, that is where your rights would have to be restored. Theoretically, Indiana has a recent statute that allows a felony conviction to be converted to misdemeanor if a certain amount of time has passed and the person has not had other criminal trouble (John Alden v. State of Indiana, 2013). If granted by the trial court, the conversion of a felony to a misdemeanor, once reported to the criminal background checks system or NICS, has the net effect of restoration of firearms rights.
Under this state law, certain Class D Felonies can be reduced to a misdemeanor if the following facts exist: (1) the person is not a sex or violent offender, (2) the conviction is for a crime that did not cause bodily injury, (3) at least three years have passed since the person completed his sentence, (4) the person has no been convicted of another felony since this conviction, and (5) the person has no pending criminal charges. The trial court has discretion in reducing a felony to a misdemeanor, but you would be a good candidate given the amount of time that has passed and how you have turned your life around since.
The court will order conviction records to be restricted if there is convincing evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person does not have an existing or pending driver's license suspension;
(4) the person has successfully completed the person's sentence, including any term of supervised release, and satisfied all other obligations placed on the person as part of the sentence; and
(5) the person has not been convicted of a crime within the previous eight (8) years.
If the crime was greater than a Class D felony, this so called "second chance law" would not apply, unfortunately.
Here's where it falls apart, even if you did have a Class D felony. When it comes to firearm rights, it is important to always remember that there are two rights. First, the state right, and second a federal right. While the Indiana expungement statute may restore a state right, the federal right has not been restored. Or at least this is the position of the federal government in regards ***** ***** Indiana expungement statute. The current Indiana expungement statute allows a future court to look back at a prior expunged felony if the individual was back in court on future criminal charges. This “look back” provision makes the Indiana expungement really less of an expungement and more of a sealment of the record. The U.S. Department of Justice position on this has always been that for these types of expungement statutes no federal firearm rights shall be restored.
Without “true expungement” the federal firearm possession right will not be restored.
Therefore, an individual who has had their felony expunged in the State of Indiana since July 2013 may not necessarily find themselves in violation of state law. However, they would be in violation of federal law. It has always been the federal government’s practice to file federal felony criminal charges against individuals who possess firearms, but are federally prohibited to do so.
Thus, the only other remedy would be a Governor's Pardon from the state of Indiana. A pardon after 15 years since the conviction would restore gun rights. The DOJ (Department of Justice) does recognize a Governor’s pardon as restoring firearm rights. Basically, federal law says a prohibitive felony does not prohibit an individual from possession of a firearm if that “conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 U.S.C. 921(a)(33). An expungement and a pardon are two different things, don’t confuse the terms.
You stated you received a pardon (what Indiana calls clemency) after 20 years, so that SHOULD have been valid. I don't know what happened there, but my recommendation would be to call the Indiana Parole Board and find out if everything is in order with that granting of clemency and if in fact, they restored your gun rights with the pardon. The Board can be reached at(###) ###-####
If you need any further information or clarification, please use the REPLY feature and I'll be happy to assist you. Thank you.
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