Kalonji v. State, No. 25A-XP-2508 (2026)

Case details
Full caption
Jean-Paul B. Kalonji v. State of Indiana
Country
United States
Jurisdiction
Indiana (IN)
Court
Indiana Supreme Court
Decided
2026
Disposition
Affirmed
Panel
Vaidik (J.); Bradford (J.)
Opinion
Per curiam
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 1 of 21 MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case. IN THE Court of Appeals of Indiana Jean-Paul B. Kalonji, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent. May 26, 2026 Court of Appeals Case No. 25A-XP-2508 Appeal from the Allen Superior Court The Honorable David B. LeBeau, Magistrate FILEDCLERKIndiana Supreme CourtCourt of Appealsand Tax CourtMay 26 2026, 9:53 am
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 2 of 21 Trial Court Cause No. 02D05-2506-XP-211 Memorandum Decision by Senior Judge Crone Judges Vaidik and Bradford concur. Crone, Senior Judge. Case Summary [1] Jean-Paul B. Kalonji sought to expunge the records of his 2006 felony and misdemeanor convictions that stemmed from a domestic altercation with his wife. One of the convictions was for class C felony battery resulting in serious bodily injury. The prosecuting attorney did not consent to the expungement, and the trial court summarily denied the petition, without holding a hearing. Kalonji subsequently filed a motion to correct error—that challenged the denial of the expungement and alleged violations of his state and federal constitutional rights—which also proved unsuccessful. [2] Kalonji, proceeding pro se, now appeals the denial of his motion to correct error. He renews his challenge to the trial court’s denial of the expungement, as well as his claims of state and federal constitutional violations. In a separately filed Motion for Judicial Notice of Legislative Facts and Alternative Relief,1 1 Kalonji’s motion has been held in abeyance by this Court’s motions panel for the writing panel's consideration.
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 3 of 21 Kalonji asks this Court to take judicial notice of certain evidence, which is not a part of the appellate record and which he believes supports his constitutional claims—namely, a compilation of responses he received from five county prosecutors’ offices, the Office of the Indiana Attorney General, and the Indiana Prosecuting Attorneys Council, that were provided to him in response to his access to public records requests. [3] For reasons set forth below, and by separate order issued simultaneously with this memorandum decision, we deny Kalonji’s Motion for Judicial Notice of Legislative Facts and Alternative Relief. And we will not consider that evidence or review Kalonji’s constitutional claims based thereon. [4] We address on the merits whether the trial court erred in denying Kalonji’s motion to correct error concerning the trial court’s summary denial of Kalonji’s expungement petition. Finding no error, we affirm. Facts and Procedural History [5] In May 2006, Kalonji was involved in a domestic altercation with his wife (hereinafter, Wife). The State charged Kalonji with class B felony criminal confinement, class C felony battery, class D felony intimidation, and class A misdemeanor domestic battery. In August 2006, pursuant to a plea agreement, the State dismissed the criminal confinement charge, and in exchange, Kalonji pled guilty to the remaining charges. One month later, in September 2006, the trial court sentenced Kalonji to an aggregate term of four years, all suspended,
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 4 of 21 with two years of probation. Kalonji was released from probation in September 2008. [6] Thirteen years later, in August 2021, Kalonji filed a petition to expunge his convictions (First Expungement Petition). See Kalonji v. State, Cause No. 02D05-2108-XP-366 (Odyssey Case Management System). He attached to the petition a June 23, 2021 email in which the Allen County chief deputy prosecuting attorney wrote the following to Kalonji’s then-counsel: The State will not agree to an expungement in this case. I am applying the same standard that I did with major felony post conviction [sic] relief cases. We will review after twenty years. Since the expungement law was passed nearly [a] decade ago, I do not believe we have agreed to any expungements under IC 35-38-9-5[, the statute applicable to the expungement of felonies resulting in serious bodily injury]. Appellant’s Amend. App. Vol. 2 at 52. The trial court summarily denied Kalonji’s First Expungement Petition in October 2021 because the petition concerned the expungement of a felony that had resulted in serious bodily injury, and Kalonji had not received the requisite consent from the prosecutor to expunge the offenses.2 2 See Kalonji v. State, Cause No. 02D05-2108-XP-366 (Odyssey Case Management System). In response to the denial of his First Expungement Petition, Kalonji, by counsel, filed motions to correct error in the cause, which were subsequently denied.
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 5 of 21 [7] On June 30, 2025, Kalonji filed a second petition to expunge his 2006 convictions (Second Expungement Petition) from which this appeal stems. Kalonji stated in his petition that he had “profound remorse for his actions in 2006 and the harm they caused”; he had “successfully raised five [ ] children of character who are now contributing members of society”; and he had been gainfully employed, served as a community leader, and had “remained out of trouble with the law[.]” Id. at 17. Kalonji attached to the petition a sworn affidavit from Wife, in which she expressed support for the expungement. [8] However, Kalonji did not, and indeed could not, attach to the petition a copy of the prosecuting attorney’s written consent to the expungement—as required by governing statutes—as the prosecutor did not consent to the expungement. Kalonji claimed instead that in May 2025, he had sent to the Allen County Prosecuting Attorney’s Office, by “US Post Office Certified Mail,” a “formal request for ‘Written Consent of the Prosecuting Attorney[.]’” Id. at 16. Kalonji maintained that because the prosecutor had not responded within thirty days to that request for consent (hereinafter, Request for Consent), the prosecutor had “waived any objection to th[e] petition for expungement.” Id. [9] On July 10, 2025, the State filed a response, objecting to the Second Expungement Petition on the ground that the Allen County prosecuting attorney had not consented to the expungement. The prosecutor argued that under the applicable statute, Indiana Code section 35-38-9-5 (2021), the trial court had no authority to grant expungement unless the prosecuting attorney had consented in writing. See Ind. Code § 35-38-9-5(e)(5). And the prosecutor
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 6 of 21 noted that the applicable statute contained no provision requiring the prosecutor to respond to Kalonji’s Request for Consent that had been filed before Kalonji had filed his Second Expungement Petition. [10] On July 11 and 12, 2025, Kalonji filed responses to the prosecutor’s objection, asserting that the prosecuting attorney had waived any right to object by failing to respond timely to his Request for Consent. Kalonji argued that certain Indiana statutes governing expungement “unequivocally mandate[d]” that he “obtain the prosecuting attorney’s written consent before filing the expungement petition[,]” and that when the prosecuting attorney fails to act timely upon such a request, the prosecuting attorney is “deemed to have consented” to the expungement. Appellant’s Amend. App. Vol. 2 at 25. [11] On August 5, 2025, the trial court summarily denied Kalonji’s Second Expungement Petition, without holding a hearing, on the basis that “the Prosecuting Attorney has not consented in writing as required pursuant to I.C. 35-38-9-5(e)(5).” Id. at 39. The court also denied another motion that Kalonji had filed seeking to overrule the State’s objections and to proceed to an evidentiary hearing. [12] Kalonji filed a motion to correct error on August 15, 2025, arguing, essentially, that based on his “law-abiding conduct, family stability[,]” “community leadership . . . , professional contributions[,]” and Wife’s affidavit expressing support for expungement, the trial court should have “exercise[d its] discretion”
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 7 of 21 and granted the expungement.3 Id. at 42. Kalonji also, for the first time, raised constitutional claims, contending that the prosecutorial consent requirement for expungement created an arbitrary consent process that violated his state and federal constitutional rights to separation of powers, due process, and equal protection. [13] Additionally, Kalonji asserted that he was entitled to a “certification” by the trial court, indicating he had “met all requirements” for expungement. Id. at 41. And he requested that the trial court “proceed to an evidentiary hearing on the merits[.]” Id. Kalonji attached to his motion to correct error the June 23, 2021 email correspondence between the Allen County chief deputy prosecuting attorney and Kalonji’s then counsel, as well as Wife’s affidavit expressing support for the expungement. [14] On September 10, 2025, the trial court denied Kalonji’s motion to correct error. Kalonji filed his notice of appeal on October 6, 2025. [15] On November 29, 2025, before the case was fully briefed, Kalonji filed with this Court a motion to supplement the appellate record with a compilation of responses he had received from five county prosecutors’ offices, the Office of the Indiana Attorney General, and the Indiana Prosecuting Attorneys Council, that had been provided to him in response to certain access-to-public-records 3 Kalonji titled his motion to correct error as, “Petitioner’s Motion to Certify Compliance With Statutory Requirements Under IC 35-38-9-5, To Correct Error In Denial Order Pursuant To Indiana Trial Rule 59, And For Relief From Due Process Violation.” Appellant’s Amend. App. Vol. 2 at 40.
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 8 of 21 requests Kalonji had made. As Kalonji explained, after the trial court denied his motion to correct error on September 10, he conducted a “systematic” Indiana Access to Public Records Act (APRA) “investigation of Indiana county prosecutors’ offices to determine whether written standards exist[ed] for evaluating” the prosecutorial consent requirement for expungement. Kalonji v. State, Case No. 25A-XP-2508 (Motion to Supplement the Record With APRA Investigation Evidence at 1) (Odyssey Case Management System). He asked this Court to allow him to supplement the appellate record with this additional evidence (hereinafter, the APRA Responses) because, according to Kalonji, the APRA Responses were relevant to the constitutional claims he intended to raise in this appeal—specifically, claims related to separation of powers, procedural and substantive due process, and equal protection. [16] On December 5, 2025, this Court issued an order denying Kalonji’s motion to supplement the appellate record with the APRA Responses. Four days later, Kalonji filed in the trial court a motion to correct and supplement the Clerk’s Record, seeking to supplement the trial court record with the APRA Responses. The trial court denied Kalonji’s request on February 19, 2026. This appeal ensued.4 4 This Court initially dismissed Kalonji’s appeal with prejudice on February 2, 2026, after Kalonji failed to file a conforming appendix following repeated warnings. Kalonji filed a motion for reinstatement, and on February 13, 2026, this Court reinstated his appeal. Kalonji filed his Motion for Judicial Notice of Legislative Facts and Alternative Relief with this Court on February 28, 2026.
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 9 of 21 Discussion and Decision [17] Kalonji challenges the trial court’s denial of the expungement, and he renews his claims of state and federal constitutional violations related to separation of powers, procedural and substantive due process, and equal protection. In addition, he asks this Court to grant his Motion for Judicial Notice of Legislative Facts and Alternative Relief and take judicial notice of the APRA Responses.5 Kalonji contends that this evidence supports his constitutional claims.6 [18] Before we address the trial court’s summary denial of the expungement and the subsequent denial of Kalonji’s motion to correct error, we first address Kalonji’s Motion for Judicial Notice of Legislative Facts and Alternative Relief and expound why we will not consider the APRA Responses or Kalonji’s constitutional issues. Then we address Kalonji’s citation to nonexistent legal authority and mischaracterization of caselaw. 5 In addition to asking this Court to take judicial notice of the APRA Responses, Kalonji’s Motion for Judicial Notice of Legislative Facts and Alternative Relief also requested that this Court remand this case for a “limited evidentiary hearing,” reverse the trial court’s judgment based on violations of due process, and certify his constitutional questions for review by our Supreme Court. Kalonji v. State, Cause No. 25A-XP-2508 (Appellant’s Motion for Judicial Notice of Legislative Facts and Alternative Relief at 6). 6 The constitutional arguments Kalonji raises on appeal—particularly his equal protection and substantive due process claims—depend principally on: (1) an August 20, 2025 APRA Response from the Allen County Prosecuting Attorney’s Office, indicating that no written criteria existed for evaluating expungement consent requests; (2) APRA Responses from Marion, Hamilton, and Elkhart County prosecutors’ offices, purportedly confirming the same; and (3) the characterization that Allen County’s practices regarding the application of the prosecutorial consent requirement for expungement differ from those of other Indiana counties in constitutionally significant ways.
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 10 of 21 Section 1—Kalonji’s Motion for Judicial Notice of Legislative Facts and Alternative Relief Is Denied; This Court Will Not Consider the APRA Responses and Will Not Review Kalonji’s Constitutional Claims Based Thereon. [19] Kalonji filed his Motion for Judicial Notice of Legislative Facts and Alternative Relief on February 28, 2026, asking this Court to take judicial notice of the APRA Responses as “legislative facts” he deemed essential to the factual foundation for his constitutional claims. Kalonji v. State, Cause No. 25A-XP-2508 (Appellant’s Motion for Judicial Notice of Legislative Facts and Alternative Relief at 1). Under the Indiana Rules of Evidence, and relevant to this appeal, a court may take judicial notice of “the existence of . . . published regulations of governmental agencies” and “records of a court of this state.” Ind. Evidence Rule 201(a)(2) (emphasis added). And a court may take judicial notice “at any stage of the proceeding,” Evid. R. 201(d), which includes appeals, Banks v. Banks, 980 N.E.2d 423, 426 (Ind. Ct. App. 2012), trans. denied. At the same time, however, “judicial notice may not be used on appeal to fill evidentiary gaps in the trial record.” Banks, 980 N.E.2d at 426. [20] And it is well-settled that “[o]rdinarily, this [C]ourt may not consider evidence outside the record presented to the trial court in resolving an appeal.” Id. (citing In re D.Q., 745 N.E.2d 904, 906 n.1 (Ind. Ct. App. 2001)). It is axiomatic that appellate review of the factfinder’s—here, the trial court’s—assessment is limited to those matters contained in the record that were presented to and
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 11 of 21 considered by the trial court. See Dollar Inn, Inc. v. Slone, 695 N.E.2d 185, 188 (Ind. Ct. App. 1998), trans. denied. [21] Here, the APRA Responses are not published regulations of governmental agencies or records of a court of this state. Instead, the responses consist of Kalonji’s compilation of what Kalonji had obtained from county prosecutors’ offices, the Office of the Indiana Attorney General, and the Indiana Prosecuting Attorneys Council, in response to access-to-public-records requests Kalonji made. [22] Furthermore, Kalonji did not present the APRA Responses to the trial court for its consideration of his motion to correct error. And the trial court denied Kalonji’s subsequent request to supplement the trial court’s record with the APRA Responses. As such, the responses were not a part of the trial court’s record and are therefore not properly before this Court. [23] Additionally, after initiating his appeal, Kalonji attempted to fill in gaps in the evidence on appeal by asking this Court to allow him to supplement the appellate record with the APRA Responses. We denied Kalonji’s request. And his subsequently filed Motion for Judicial Notice of Legislative Facts and Alternative Relief is yet another request to allow him to supplement the record—this time by asking this Court to take judicial notice of the APRA Responses—which we will not do. Kalonji may not accomplish through judicial notice what this Court, and the trial court, refused to allow through record supplementation.
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 12 of 21 [24] Simply put, the APRA Responses are external materials that were never admitted in any court proceeding, do not qualify as published governmental regulations or court records, and were expressly excluded from both the trial court and appellate records. Accordingly, we deny Kalonji’s Motion for Judicial Notice of Legislative Facts and Alternative Relief, and we decline to consider the APRA Responses. And because Kalonji’s constitutional arguments are based on the APRA Responses—which were not a part of the trial court’s record and are not a part of the record on appeal—we will not review the constitutional claims that he raises in this appeal.7 Section 2—Kalonji, a Pro Se Litigant, Is Held to the Same Legal Standards as Licensed Attorneys, and We Admonish Kalonji for Citing to Nonexistent Legal Authority and Mischaracterizing Caselaw. [25] “It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.” Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016) (internal citation omitted). “These consequences include waiver for failure to present cogent arguments on appeal.” Dridi v. Cole Kline LLC, 172 7 To the extent Kalonji bases his constitutional arguments on the Allen County chief deputy prosecuting attorney’s June 2021 email, which is a part of the appellate record, that email alone does not establish the statewide disparities regarding the application of the prosecutorial consent requirement for expungement that Kalonji alleges in his constitutional claims.
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 13 of 21 N.E.3d 361, 364 (Ind. Ct. App. 2021). “Although we prefer to decide issues on the merits, where the appellant’s noncompliance with the rules of appellate procedure is so substantial that it impedes our appellate consideration of the errors, we may deem the alleged errors waived.” Id. And we could do so here. [26] Given Kalonji’s citations to nonexistent legal authorities and to authentic legal authorities that do not support the propositions that he claims they do, it is likely that Kalonji used generative artificial intelligence (AI) to draft his briefs, either in whole or in part.8 We recently observed that “[c]itations to fictitious, AI-generated authority is a growing problem nationwide” and that “[c]ourts have sanctioned both attorneys and pro se litigants for including them in briefs.” Williams v. Kirch, 268 N.E.3d 284, 288 (Ind. Ct. App. 2025). “Judges must be able to rely on the authenticity of the authorities cited by the parties to make just decisions.” Id. 8 For example, Kalonji’s purported quotation from State v. Monfort, 723 N.E.2d 407 (Ind. 2000), appears to be fabricated. See Appellant’s Br. at 17. And Kalonji’s Brief mischaracterizes Monfort as a case that “struck down a statute giving prosecutors veto power over judicial sentencing decisions.” Id. As the State correctly notes, Monfort addressed the Indiana General Assembly’s authority to abolish a superior court during a judge’s term—it has nothing to do with prosecutorial authority over sentencing. See Appellee’s Br. at 13. Kalonji acknowledges and withdraws this mischaracterization in his Reply Brief. See Appellant’s Reply Br. at 17-18. In addition, Kalonji cites “Taylor v. State, 133 N.E.3d 708 (Ind. Ct. App. 2019),” in support of the proposition that Indiana Code section 35-38-9-5 creates a protected liberty interest. See Appellant’s Br. at 18-19. That citation does not correspond to any published decision of this Court, as the State noted and as Kalonji concedes. See Appellee’s Br. at 12; Appellant’s Reply Br. at 18. The relevant decision is Taylor v. State, 7 N.E.3d 362, 365 (Ind. Ct. App. 2014); however, it addressed the mandatory expungement provision in Indiana Code section 35-38-9-2(d), not the discretionary, consent-conditioned provision found in Indiana Code section 35-38-9-5. We also note that in his Second Expungement Petition, Kalonji referred to a nonexistent statute, “35-38-9-5.2.” He acknowledged this mistake in his motion to correct error.
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 14 of 21 [27] While we could deem Kalonji’s remaining issue—the trial court’s summary denial of his expungement petition—waived, we find it sufficient to admonish him for his ghost citations and mischaracterization of caselaw, and we caution him “against using AI to conduct legal research without independently verifying the citations generated.” Id. [28] We now turn to whether the trial court erred by denying Kalonji’s motion to correct error concerning the denial of his expungement petition, where the prosecuting attorney objected to Kalonji’s expungement petition, and the trial court denied it without a hearing. Section 3—The Trial Court Did Not Err By Summarily Denying Kalonji’s Petition for Expungement, And the Trial Court Therefore Properly Denied Kalonji’s Motion to Correct Error. [29] Kalonji appeals following the denial of his motion to correct error. “The trial court has discretion to grant or deny a motion to correct error, and we reverse the court’s decision only for an abuse of discretion.” Alvarez v. State, 147 N.E.3d 374, 377 (Ind. Ct. App. 2020), trans. denied. An expungement petition filed under Indiana Code section 35-38-9-5 (applicable to felony convictions that resulted in serious bodily injury) is discretionary, and the trial court’s ruling on it is generally reviewed for an abuse of that discretion. Allen v. State, 159 N.E.3d 580, 583 (Ind. 2020). An abuse of discretion occurs where the trial court’s decision is against the logic and effect of the facts and circumstances before it or
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 15 of 21 if the court has misinterpreted the law. Auto. Fin. Corp. v. Liu, 250 N.E.3d 406, 410 (Ind. 2025). [30] Where, as here, an appeal turns on the interpretation of a statute, we apply a de novo standard of review. Id. Under this standard, the goal is to determine and give effect to the legislature’s intent. Id. We presume “the legislature intended for the statutory language to be applied in a logical manner consistent with the statute’s underlying policy and goals.” State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008). We also presume that the legislature intended the language used in the statute to be applied logically and not to bring about an absurd or unjust result. Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008), trans. denied. [31] The expungement statutes are found in Indiana Code Chapter 35-38-9. For qualifying offenses, the requirements for expungement generally depend on the level of offense of which the person was convicted. See I.C. § 35-38-9-2 (misdemeanors); I.C. § 35-38-9-3 (Class D or Level 6 felonies); I.C. § 35-38-9-4 (felonies not covered under section 3); I.C. § 35-38-9-5 (felonies that resulted in serious bodily injury). [32] Here, Kalonji filed his petition to expunge his 2006 convictions pursuant to Indiana Code section 35-38-9-5. The statute provides, in part, that a trial court may order conviction records expunged if it finds by a preponderance of the evidence that all of the following have occurred: (1) it has been ten years since the date of conviction or five years from the completion of the sentence, whichever
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 16 of 21 is later; (2) there are no pending charges against the petitioner; (3) the petitioner has paid all fines, fees, and court costs, and has satisfied any restitution obligations imposed as part of a sentence; (4) the person has not been convicted of a felony or misdemeanor within the previous ten years; and (5) the prosecuting attorney has consented in writing to the expungement of the person’s criminal records. See I.C. § 35-38-9-5(e). [33] Kalonji’s primary argument is that the trial court erred by denying his petition, where the prosecuting attorney objected to the expungement, and the trial court denied it without first holding a hearing. He contends that the mandatory hearing requirement under Indiana Code section 35-38-9-9(c) (2019) was triggered once the prosecutor filed a written objection, and he relies principally on Key v. State, 48 N.E.3d 333 (Ind. Ct. App. 2015)—a decision first cited in his Reply Brief—to support his contention. For the reasons set forth below, we disagree. [34] Indiana Code section 35-38-9-8 (2021) governs the filing of an expungement petition, providing that not later than thirty days after receipt of the petition, the prosecuting attorney must reply to the petition. I.C. § 35-38-9-8(g). If the prosecuting attorney fails to reply timely, the prosecuting attorney waives any objection to the petition, and the trial court shall proceed to consider the petition under section 35-38-9-9. See I.C. § 35-38-9-8(g)(1)-(2). [35] Section 35-38-9-8 also governs the required contents of an expungement petition and specifies that for petitions filed under section 35-38-9-5, “the
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 17 of 21 petitioner shall attach a copy of the prosecuting attorney’s written consent.” I.C. § 35-38-9-8(b)(11) (emphasis added). [36] And Indiana Code section 35-38-9-9 governs the actions a trial court may take on an expungement petition, providing in part as follows: (a) If the prosecuting attorney does not object, the court may grant the petition for expungement without a hearing. (b) The court may summarily deny a petition, if the petition does not meet the requirements of section 8 of this chapter [filing and contents of petitions], or if the statements contained in the petition demonstrate that the petitioner is not entitled to relief. (c) If the prosecuting attorney objects to the petition, the prosecutor shall file with the court the prosecutor’s reasons for objecting and shall serve the petitioner with a copy of the objection. The court shall set the matter for hearing not sooner than sixty (60) days after service of the petition on the prosecuting attorney. (d) . . . The petitioner must prove by a preponderance of the evidence that the facts alleged in the verified petition are true. I.C. § 35-38-9-9(a)-(d) (emphasis added). [37] In Key, this Court resolved the relationship between sections 35-38-9-9(b) and (c), see supra 36. 48 N.E.3d 333. We held that subsection (c)’s use of “shall” is mandatory language creating a due process right to a hearing when the prosecuting attorney objects to an expungement petition. Id. at 337. We noted, however, that subsection (b) permits summary denial in two limited
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 18 of 21 circumstances: (1) when “the petition does not meet the requirements of Section 35-38-9-8 (filing and contents of petitions),” or (2) when “the statements contained in the petition demonstrate that the petitioner is not entitled to relief.” Id. Thus, under Key, if either prong of subsection (b) is satisfied (because the petition is facially defective, or statements in the petition reveal that the petition is not eligible for expungement), summary denial is permitted “regardless of the prosecutor’s response.” Id. at 337-38; see also Burton v. State, 71 N.E.3d 24, 25 n.1 (Ind. Ct. App. 2017) (“[E]ven if the State objects, the trial court may nevertheless summarily deny a petition if it is facially defective or reveals that the petitioner is not eligible for expungement.”). In other words, the mandatory hearing requirement of subsection (c) applies when the prosecutor objects, and neither part of subsection (b) is met. See id. at 338. [38] Here, we find that the relevant statutes are clear and unambiguous. An expungement petition filed under Indiana Code section 35-38-9-5 must, among other requirements enumerated in section 35-38-9-8(b), include as an attachment “a copy of the prosecuting attorney’s written consent.” I.C. § 35-38-9-8(b)(11). Kalonji did not attach any such consent to his petition. A petition filed without this mandatory attachment does not meet the requirements of section 35-38-9-8 and is therefore facially defective. See Key, 48 N.E.3d at 337-
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 19 of 21 38. Thus, under the plain language of Indiana Code section 35-38-9-9(b), the trial court was authorized to summarily deny Kalonji’s petition on this basis.9 [39] The second part of section 35-38-9-9(b) also permits summary denial of Kalonji’s petition. Indeed, the petition’s statements established that Kalonji was not entitled to the relief he sought. Kalonji’s petition did not represent that the prosecuting attorney had consented in writing. Rather, the petition acknowledged the absence of written consent and argued—incorrectly—that the prosecuting attorney’s failure to respond to Kalonji’s Request for Consent to the expungement waived the prosecuting attorney’s right to object to Kalonji’s expungement petition.10 Accordingly, the expungement petition’s own 9 We also note that the facts in Key are distinguishable from the case before us, and Key does not support Kalonji’s contention that the trial court erred by denying his expungement petition and, subsequently, his motion to correct error. In Key, the trial court summarily denied Key’s motion to correct error, which challenged the court’s denial of his petition to expunge his felony conviction records. This Court reversed, concluding that the trial court erred by denying Key’s contested petition for expungement without first setting the matter for a hearing. Key, 48 N.E.3d at 340. However, unlike Kalonji, Key’s expungement petition was governed by sections 35-38-9-3 (mandatory expungement) and 35-38-9-4 (discretionary expungement), see Key, 48 N.E.3d at 339, and we note that neither statute requires the attachment of prosecutorial consent to the petition. And, unlike Kalonji, Key’s petition appeared on the record to satisfy all applicable filing requirements. Thus, in Key, the first part of section 35-38-9-9(b) (permitting summary denial when the petition does not meet the requirements of section 35-38-9-8) was unavailable to the trial court. Key, 48 N.E.3d at 339. As such, this Court’s reversal in Key rested on the absence of any subsection (b) ground for summary denial—a circumstance not present in Kalonji’s case. 10 Indeed, Kalonji appears to conflate the Request for Consent with the filing of his expungement petition. Kalonji filed his Request for Consent in May 2025. He filed his expungement petition on June 29, 2025. On July 10, 2025, the prosecuting attorney timely filed his response, objecting to the petition. See Indiana Code section 35-38-9-8(g) (providing that after the expungement petition is filed, the prosecuting attorney must reply within thirty days of receipt). Thus, Kalonji’s claim that the prosecuting attorney waived any right to object to the expungement by failing to timely respond to his Request for Consent to the expungement—sent to the prosecuting attorney before Kalonji filed his expungement petition—is unsupported by governing statutes and is, simply, incorrect.
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 20 of 21 statements confirmed that the mandatory condition of section 35-38-9-5(e)(5) was not satisfied, and the trial court was authorized to summarily deny the petition under the second part of section 35-38-9-9(b) as well. [40] In sum, Kalonji’s petition for expungement did not include a copy of the prosecuting attorney’s written consent, as required by governing statutes. Thus, the trial court was permitted to summarily deny the petition. See I.C. § 35-38-9-9(b).11 Conclusion [41] By separate order, issued simultaneously with this memorandum decision, we deny Kalonji’s Motion for Judicial Notice of Legislative Facts and Alternative Relief. We decline to consider that evidence or review Kalonji’s constitutional claims based thereon. And the trial court did not err by denying Kalonji’s motion to correct error, where the prosecuting attorney did not consent to 11 To the extent Kalonji argues that the trial court erred by failing to consider Wife’s affidavits before denying the expungement petition, we cannot agree. Indiana Code section 35-38-9-9(d) provides that the “victim of the offense for which expungement is sought may submit an oral or written statement in support of or in opposition to the petition at the time of the hearing.” (Emphasis added.) In Kalonji’s case, the trial court was not required to hold a hearing. Likewise, Kalonji’s argument that the trial court was required to certify his eligibility for the expungement of his records under Indiana Code section 35-38-9-8.5 (2015) is without merit. Indiana Code section 35-38-9-8.5 applies only to “a person seeking to expunge an Indiana offense punishable by an indeterminate sentence under a law other than IC 35-50.” I.C. § 35-38-9-8.5(a). Kalonji received a determinate sentence of four years, all suspended, with two years of probation. Section 35-38-9-8.5 has no application to his petition.
Court of Appeals of Indiana | Memorandum Decision 25A-XP-2508 | May 26, 2026 Page 21 of 21 Kalonji’s expungement petition, and the trial court summarily denied the petition.12 Accordingly, the trial court’s judgment is affirmed. [42] Affirmed. Vaidik, J., and Bradford, J., concur. APPELLANT PRO SE Jean-Paul B. Kalonji Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana 12 To the extent that Kalonji presents a bald request for an “[a]ward” of “Appellant costs of this appeal[,]” see Appellant’s Br. at 34, his request is unfounded, without merit, and, hereby, denied.
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