                                                                              FILED
                                                                          Jun 21 2019, 6:35 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Bruce A. Brightwell                                        Curtis T. Hill, Jr.
      New Albany, Indiana                                        Attorney General of Indiana

                                                                 Angela N. Sanchez
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Alan Lee Berryman,                                         June 21, 2019
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 18A-XP-2433
              v.                                                 Appeal from the Clark Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Vicki Carmichael,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 10C04-1712-XP-97



      May, Judge.


[1]   Alan Lee Berryman appeals the trial court’s denial of his petition to expunge

      the record of a case in which a jury found him not responsible by reason of

      insanity (“NRRI”). Berryman raises one issue on appeal, whether a judgment




      Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019                           Page 1 of 9
      of NRRI is a “conviction” as the term is used in Indiana Code section 35-38-9-

      1. We affirm.



                                   Facts and Procedural History
[2]   On November 3, 2001, Berryman approached a man and his wife in a mall

      parking lot. State v. Berryman, 796 N.E.2d 741, 742 (Ind. Ct. App. 2003),

      opinion aff’d in part, vacated in part, 801 N.E.2d 170 (Ind. 2004). Berryman

      grabbed the man and accused him of trying to “set up” Berryman. Id.

      Berryman then shot and killed the man. Id. On November 7, 2001, the State

      charged Berryman with murder. 1 A jury found Berryman not responsible by

      reason of insanity, so the court entered a judgment of NRRI. Subsequently, the

      court involuntarily committed Berryman to a state hospital. In re Commitment of

      Berryman, 797 N.E.2d 820, 822 (Ind. Ct. App. 2003).


[3]   On an undisclosed date thereafter, Berryman was released from his

      commitment, and he filed a Petition to Expunge/Seal Records pursuant to

      Indiana Code section 35-38-9-1 in late 2017. The State filed an objection, and

      the trial court held a hearing on June 14, 2018. On July 17, 2018, the trial court

      issued an order denying Berryman’s petition. 2 Berryman filed a motion to




      1
          Ind. Code § 35-42-1-1.
      2
          We commend the trial court for crafting a thorough and conscientious order.


      Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019                 Page 2 of 9
      correct error on August 8, 2018. Pursuant to Trial Rule 53.3, the motion was

      deemed denied on September 24, 2018.



                                  Discussion and Decision
[4]   Indiana Code section 35-38-9-1 allows an individual arrested for a crime, but

      not convicted, to seek expungement of the records related to the arrest and

      charge. The statute applies “to a person who has been arrested, charged with

      an offense, or alleged to be a delinquent child, if: (1) the arrest, criminal charge,

      or juvenile delinquency allegation: (A) did not result in a conviction or juvenile

      adjudication.” Ind. Code § 35-38-9-1(a) (emphasis added). If the petitioner

      satisfies the conditions listed in the statute and does not have any pending

      criminal charges, the court “shall grant the petition.” Ind. Code § 35-38-9-1(e).

      Berryman argues his NRRI judgment is not a “conviction” because it does not

      result in criminal punishment and, therefore, the plain language of Indiana

      Code section 35-38-9-1 requires the court to grant his petition.


[5]   While the question Berryman presents about Indiana Code section 35-38-9-1 is

      one of first-impression in Indiana, our standard for reviewing this class of

      questions is well settled. “Statutory interpretation is a question of law reserved

      for the court and is reviewed de novo. De novo review allows us to decide an

      issue without affording any deference to the trial court’s decision.” Shaffer v.

      State, 795 N.E.2d 1072, 1076 (Ind. Ct. App. 2003) (internal citation omitted).

      Consequently, “the express language of the statute and the rules of statutory

      interpretation apply. We will examine the statute as a whole, and [we] avoid

      Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019            Page 3 of 9
      excessive reliance on a strict literal meaning or the selective reading of words.”

      Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008) (internal citation

      omitted), trans. denied. If the statute’s language is clear and unambiguous, we

      apply the clear language of the statute. Id.


[6]   At issue is the meaning of the term “conviction” in Indiana Code section 35-38-

      9-1 and, as former Chief Justice Shepard explained, “[t]he word ‘conviction’ is

      not a term of art, and its multiple definitions create some confusion.” Carter v.

      State, 750 N.E.2d 778, 779 (Ind. 2001) (holding, in the double jeopardy context,

      a conviction is a court judgment, not a jury verdict). Unfortunately, the

      legislature did not define “conviction” in Indiana Code section 35-38-9-1 or

      elsewhere in Title 35 of the Indiana Code. When the legislature has not

      provided the meaning of a term in a statute, we may consult English

      dictionaries to determine a word’s plain and ordinary meaning. Naugle v. Beech

      Grove City Schools, 864 N.E.2d 1058, 1068 (Ind. 2007).


[7]   Black’s Law Dictionary defines “conviction” as: “1. The act or process of

      judicially finding someone guilty of a crime; the state of having been proved

      guilty. 2. The judgment (as by a jury verdict) that a person is guilty of a

      crime.” Conviction, BLACK’S LAW DICTIONARY (10th ed. 2014) (emphases in

      original). Webster’s Dictionary defines “conviction” as “the act of proving,

      finding, or adjudging a person guilty of an offense or crime.” Conviction,

      WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH

      LANGUAGE UNABRIDGED (1st ed. 1976); see also Conviction, MERRIAM-

      WEBSTER ONLINE DICTIONARY (available at https://www.merriam-
      Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019           Page 4 of 9
      webster.com/dictionary/conviction) (“the act or process of finding a person

      guilty of a crime especially in a court of law”) (last visited May 17, 2019).

      Thus, in common vernacular, “conviction” is used to mean either a finding of

      guilt of a crime or a court judgment that leads to criminal punishment.


[8]   Where, as here, there is more than one reasonable interpretation of a term in a

      statute, we must construe the statute to give effect to the General Assembly’s

      intent. See Nash, 881 N.E.2d at 1063. We presume the legislature intends for

      “the language used in the statute to be applied logically and not to bring about

      an absurd or unjust result.” Id. Therefore, “we must keep in mind the objective

      and purpose of the law as well as the effect and repercussions of such a

      construction.” Id.


[9]   Applying these principles of statutory construction, we must conclude the

      legislature intended “conviction” as used in Indiana Code section 35-38-9-1 to

      encompass a NRRI judgment because to hold otherwise would be absurd and

      unjust, which could not have been the legislature’s intent. As we have

      previously observed, the intent of Indiana Code section 35-38-9-1 is to allow an

      individual who satisfies certain criteria to escape the stigma associated with an

      overturned conviction or an arrest that does not result in a conviction. B.S. v.

      State, 95 N.E.3d 177, 180 (Ind. Ct. App. 2018). See also Commonwealth v. W.P.,

      612 A.2d 438, 441 (Pa. Super. Ct. 1992) (observing “we may not merely close

      our eyes to the whole thrust of the expungement process, i.e., to exculpate an

      innocent individual from the jaws of unwarranted punishment which manifests

      itself and flows from the retention of one’s arrest record”).

      Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019          Page 5 of 9
[10]   Other states have interpreted their expungement statutes to not extend to NRRI

       or similar judgments because those defendants are institutionalized in mental

       health facilities after committing the criminal acts for which they are found not

       responsible due to insanity. For example, in Commonwealth v. B.C.,

       Pennsylvania authorities arrested B.C. and charged him with aggravated

       assault, simple assault, and recklessly endangering another person. 936 A.2d

       1070, 1071 (Pa. Super. Ct. 2007). He was found not guilty by reason of

       insanity. Id. He petitioned for expungement, the trial court denied his petition,

       and the Pennsylvania Superior Court affirmed. Id. at 1072. The Superior Court

       observed that an acquitted defendant is vindicated and free to walk out of the

       courtroom. Id. at 1073. However, a defendant found not guilty by reason of

       insanity is confined to a mental institution until the defendant regains sanity

       and no longer poses a danger to himself or others. Id. at 1074.


[11]   Similarly, in Eastlack v. Commonwealth, Virginia charged Eastlack with malicious

       wounding and the trial court found him to be not guilty by reason of insanity.

       282 Va. 120, 122-23 (2011). He subsequently petitioned to have the police and

       court records related to his criminal case expunged. Id. at 123. The Virginia

       Supreme Court noted certain restrictions placed on people found not guilty by

       reason of insanity, such as they cannot possess or purchase firearms. Id. at 125.

       Further, under Virginia’s statutory scheme, a “person found not guilty by

       reason of insanity could, immediately after the entry of judgment, seek

       expungement and, if successful, avoid all the constraints upon his liberty

       imposed by the ‘not guilty by reason of insanity’ laws.” Id. Consequently, the

       Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019         Page 6 of 9
       court held individuals found not guilty by reason of insanity were not eligible to

       have their police and court records expunged. Id. at 126.


[12]   Likewise, the New Hampshire Supreme Court held an individual found not

       guilty by reason of insanity was not entitled to have his record annulled. State v.

       Bulcroft, 166 N.H. 612, 617 (2014). In so holding, the court noted that if it were

       to rule in Bulcroft’s favor and allow him to annul the record immediately after

       the verdict, it would effectively “nullify a process established to protect society

       from those individuals whose release would create a substantial risk of injury to

       others.” Id. at 615.


[13]   These policy concerns apply equally in Indiana, and we find them persuasive.

       A NRRI verdict is not equivalent to a “not guilty” verdict. If the State fails to

       prove each element of the criminal offense beyond a reasonable doubt, then the

       jury must render a verdict of not guilty. Ind. Code § 35-41-4-1(a). A NRRI

       verdict signifies that the defendant committed the criminal act, but the

       defendant is not legally responsible because “as a result of mental disease or

       defect, [the defendant] was unable to appreciate the wrongfulness of the

       conduct at the time of the offense.” Ind. Code § 35-41-3-6. If Berryman’s

       expungement petition were granted, the record of his heinous crime would be

       sealed and unavailable to the public. The legislature could not have intended

       such a result.


[14]   People have a right to know if their neighbors have committed violent acts and

       to use this knowledge to ensure their own safety. See Wallace v. State, 905


       Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019           Page 7 of 9
       N.E.2d 371, 383 (Ind. 2009) (noting “registration systems are a legitimate way

       to protect the public from sex offenders”), reh’g denied. Murder is a serious

       crime, and a murder conviction is one of the few convictions that can never be

       expunged. See Ind. Code § 35-38-9-5(b) & Ind. Code § 35-38-9-4 (stating those

       convicted of a homicide offense are not eligible to have convictions expunged).

       Berryman remained in state custody after the NRRI verdict because he

       remained a threat to public safety.


[15]   Additionally, if we were to accept Berryman’s interpretation of the statute, an

       individual found NRRI could petition for expungement much earlier than a

       person convicted of a crime. Indiana Code section 35-38-9-1 provides an

       individual is eligible to petition for expungement “[n]ot earlier than one (1) year

       after the date of arrest, criminal charge, or juvenile delinquency allegation

       (whichever is later), if the person was not convicted or adjudicated a delinquent

       child, or the date of the opinion vacating the conviction or adjudication

       becomes final.” In comparison, individuals convicted of crimes eligible for

       expungement must wait 5 years to have the conviction expunged if it was a

       misdemeanor, eight years if the conviction was a felony, and ten years if the

       conviction was a felony resulting in serious bodily injury or committed by an

       elected official or candidate for public office. See Ind. Code §§ 35-38-9-2 to 35-

       38-9-5. Even if found NRRI, an individual can still pose a danger to society,

       and perhaps this is why individuals found NRRI are excluded from the

       definition of “proper person” for purposes of Indiana’s firearm statutes. Ind.

       Code. § 35-47-1-7.


       Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019           Page 8 of 9
[16]   At the hearing, Berryman argued he has trouble obtaining housing and

       employment because of the record of his charge. This is like B.C.’s argument

       that his arrest and his subsequent not guilty by reason of insanity verdict

       interfered with his ability to obtain better employment. B.C., 936 A.2d at 1072.

       However, like the Superior Court of Pennsylvania, we are not persuaded that

       permitting Berryman to expunge his record is in the best interest of public

       safety. Consequently, we construe the term “conviction” to include a NRRI

       verdict for purposes of Indiana Code section 35-38-9-1. See Nash, 881 N.E.2d at

       1062-64 (holding statutory definition of corrections officer included a nurse who

       worked in a prison but was employed by a staffing agency rather than the

       department of correction).



                                                 Conclusion
[17]   In solidarity with our sister states, we hold that an individual adjudicated NRRI

       may not have that finding expunged pursuant to Indiana Code section 35-38-9-

       1. To hold otherwise would be contrary to public policy, absurd, and unjust,

       which our legislature could not have intended. Accordingly, the trial court is

       affirmed.


[18]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019         Page 9 of 9
