MAY, J.
In Gerber’s case, the trial court read into the statute a requirement that a person wait a reasonable time after being arrested to file a petition for expungement and that the limitations period constituted a reasonable time. The State urges us to adopt this position for petitions that fall under subsection (a)(1) – when no charges are filed. The State argues “until such time as the statute of limitations for filing charges with respect to the underlying arrest has expired, a petitioner cannot petition the court for an expungement under Subsection (a)(1) and claim that no charges were filed.” . . . The State asserts the “permanence of an expungement” reflects a legislative intent that “an expungement not take place until the point at which no charges can be brought against the petitioner.”. . . .
We decline to adopt this position, as it has no support in the text of the statute. Furthermore, the State’s position would effectively prevent anyone arrested for a Class A felony or murder from petitioning for expungement when no charges are filed because a prosecution for those offenses “may be commenced at any time.” Ind. Code § 35-41-4-2. Yet this is precisely the factual scenario in [State ex rel. Indiana State Police v.] Arnold [906 N.E.2d 167, 169 (Ind. 2009)]; Arnold was arrested for Class A felony robbery and no charges had been filed by the time of his petition.
Pursuant to subsection (e) and Arnold, a trial court is required to hold a hearing in only one situation: when notice of opposition is filed and the trial court does not exercise its discretion to dispose of the petition summarily. In Gerber’s case, no notice of opposition was filed; therefore, the trial court had discretion to summarily deny the petition. Because there were no “sworn statements submitted by individuals who represent an agency,” Ind. Code § 35-38-5-1(d)(3)(B), the trial court could summarily deny the petition only if it found the petition “insufficient.” Ind. Code § 35-38-5-1(d)(3)(A).
In Ryan, the majority did not discuss the meaning of the word “insufficient” as it is used in the expungement statute. Arnold did not define that term either, but noted it was not defined by the statue, and concluded that reflected a legislative intent to confer discretion on the trial court. 906 N.E.2d at 171. Arnold described the trial court’s discretion to summarily grant or deny a petition as “almost unfettered,” id., and compared it to “the discretion that prosecutors have to file or not file criminal charges against individuals.” Id. at 172.
Although the meaning of the term “insufficient” remains unclear, the trial court explicitly stated it was not finding the petition insufficient. We remand to the trial court with instructions to either (1) summarily grant the petition, (2) set the matter for hearing, or (3) summarily deny the petition after finding the petition insufficient.
2. Prosecutor’s Opposition
Although the Prosecutor did not file a notice of opposition, the trial court permitted the Prosecutor to file a brief opposing Gerber’s petition. On appeal, the State does not advance any argument in favor of permitting the Prosecutor to participate in these proceedings, but instead argues the Prosecutor’s participation was harmless error given the manner in which the trial court resolved the case. As the State has advanced no reason why the Prosecutor should be permitted to participate, we conclude that such participation should not be permitted on remand.
BAKER, C.J., concurring in part and dissenting in part:
Although I agree with the majority’s substantive analysis, I respectfully part ways from the disposition of the case. I believe that the trial court has only two limited options on remand. First, it may summarily grant Gerber’s petition. Ind. Code § 35-38-5-1(d)(1). In the alternative, the trial court may set the matter for a hearing. . . . .
I do not believe, however, that the trial court has the option to summarily deny Gerber’s petition on remand. A summary denial is authorized under only two circumstances: (1) if the trial court finds that the petition is insufficient; or (2) if a law enforcement agency has filed a notice of opposition and submitted sworn statements setting forth the agency’s reasons for resisting the expungement. I.C. § 35-38-5-(d)(3). Here, neither a notice of opposition nor sworn statements were filed; consequently, the latter subsection does not apply. Furthermore, the trial court explicitly stated that it did not find Gerber’s petition to be insufficient. Tr. p. 3-4. I see no reason to give the trial court a second chance to review Gerber’s petition and change its decision . . . .
BARNES, J., concurring and dissenting:
I concur in result in part and dissent in part. I agree with Judge May that this case should be remanded in order to allow the trial court to either grant or deny the motion to expunge on a statutorily permitted basis. I also agree with Judge May that the statute of limitations for an offense is not the appropriate guideline to determine whether a petition for expungement may be granted. . . . .
. . . .
The prosecutor here did not file a response to Gerber’s expungement petition within the time allotted by subsection (d). Although I understand the concern that raises, I agree with Judge May that this failure does not automatically entitle Gerber to expungement of his arrest. I part ways, however, from her conclusion that participation by the prosecutor “should not be permitted on remand.” . . . “Participation” can take many shapes and forms. For example, the prosecutor could inform the trial court of legal matters related to the petition, or notify the trial court that an alleged victim opposes expungement, even if the prosecutor him or herself does not actively oppose it. I would permit this type of “participation” in this case on remand. I believe a blanket statement prohibiting the prosecutor’s “participation” could unfairly and, perhaps unknowingly, inhibit conduct that would otherwise be both proper and helpful.