                                                                            FILED
                                                                       Jan 23 2019, 8:43 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Thomas B. O’Farrell                                        Curtis T. Hill, Jr.
McClure / O’Farrell                                        Attorney General of Indiana
Indianapolis, Indiana                                      Henry A. Flores, Jr.
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jason Arthur Keene,                                        January 23, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-XP-228
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Lisa F. Borges,
Appellee-Respondent                                        Judge
                                                           Trial Court Cause No.
                                                           49G04-1705-XP-17472



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-XP-228 | January 23, 2019                             Page 1 of 7
[1]   Jason Keene appeals the denial of his petition to expunge a 2009 felony

      conviction. He argues that his due process rights were violated when the trial

      court admitted into evidence a written statement from the victim of the crime.

      Finding no error, we affirm.


                                                       Facts
[2]   On April 28, 2009, Keene pleaded guilty to Class C felony stalking in exchange

      for the dismissal of eight other charges. His then-wife, Ginger Keene, was the

      stalking victim.


[3]   On May 2, 2017, Keene filed a petition to expunge the stalking conviction. The

      State objected to expungement. At the January 8, 2018, hearing on his petition,

      Keene diminished his responsibility for the crime, maintained that he had

      merely caused Ginger emotional pain, and stated that “I did not stalk her,”

      claiming that she had created text messages to support the stalking charge. Tr.

      Vol. II p. 15. Keene called his employer and a clergy person as witnesses;

      Keene had told both individuals that his wife had “set[] him up” and that he

      only pleaded guilty because his attorney had advised him to. Id. at 34.


[4]   After Keene presented his case, the State, pursuant to the expungement statute,

      moved to admit a letter from Ginger into evidence. Keene objected; the State

      responded that the expungement statute explicitly permitted the victim to

      submit a letter. The trial court overruled the objection, admitted the letter, and

      ultimately denied Keene’s expungement petition. The trial court explained that

      it was denying the petition “because of the serious nature of the offense

      Court of Appeals of Indiana | Opinion 18A-XP-228 | January 23, 2019         Page 2 of 7
      committed by [Keene], the objection of the State of Indiana to the granting of

      an expungement, and the continuing trauma the victim has experienced as a

      result of the crime.” Appealed Order p. 2. Keene now appeals.


                                    Discussion and Decision
[5]   Keene’s sole argument on appeal is that the admission of Ginger’s written

      statement violated his due process rights because he did not have the

      opportunity to cross-examine her.


[6]   Indiana Code section 35-38-9-9(d) explicitly provides that “[a] 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.) As the statute contemplates the submission of a

      written statement with no accompanying requirement that the victim be present

      for cross-examination, the trial court’s decision in this case comported with the

      plain language of the statute. Thus, what Keene must show, to be entitled to

      relief here, is that the statute is unconstitutional.


[7]   Every statute is presumed to comport with the state and federal constitutions

      unless clearly overcome by a contrary showing. Hazelwood v. State, 3 N.E.3d 39,

      41 (Ind. Ct. App. 2014). The party challenging the constitutionality of the

      statute bears the burden of proof, and all doubts are resolved against that party.

      Id. at 42.


[8]   The right to confront witnesses is enshrined in both the United States and

      Indiana Constitutions. U.S. Const. amend. VI; Ind. Const. Art. I, Sec. 13(a).
      Court of Appeals of Indiana | Opinion 18A-XP-228 | January 23, 2019           Page 3 of 7
       In both documents, however, that right is granted only in the context of

       criminal prosecutions. It has been found to extend to certain civil settings,

       including probation revocation hearings. E.g., Cox v. State, 706 N.E.2d 547, 549

       (Ind. 1999).


[9]    While expungement proceedings are related to criminal proceedings, we can

       only conclude that expungement proceedings are civil in nature. The person

       seeking expungement is the petitioner, who bears the burden of proof; the State

       is the respondent. I.C. § 35-38-9-4. By filing an expungement petition, the

       petitioner does not risk a fine, extended or additional sentence, or new

       conviction—neither his liberty nor his bank account is at stake. Instead, the

       petition is merely granted or denied. Under these circumstances, we cannot

       agree with Keene’s assertion that an expungement proceeding is either criminal

       or quasi criminal in nature. Compare Black’s Law Dictionary 238 (7th ed. 1999)

       (defining “civil” as “[o]f or relating to private rights and remedies that are

       sought by action or suit, as distinct from criminal proceedings”) with id. at 1221

       (defining “criminal proceeding” as a “proceeding instituted to determine a

       person’s guilt or innocence or to set a convicted person’s punishment”).


[10]   That said, we find this Court’s discussion about victim impact statements in the

       context of criminal sentencing to be enlightening and helpful. Cloum v. State,

       779 N.E.2d 84, 92-93 (Ind. Ct. App. 2002). The Cloum Court noted that victim

       impact statements are an integral part of the sentencing process and found that

       the purpose of those statements “is to guarantee that the interests of the victim



       Court of Appeals of Indiana | Opinion 18A-XP-228 | January 23, 2019         Page 4 of 7
       of a crime are fully and effectively represented at the sentencing hearing.” Id. at

       93. Moreover,


                the statement allows for a degree of catharsis by the victim or the
                victim’s representative, permitting him or her to express their
                recommendation as to a sentence, the impact a crime had, and
                their feelings toward the defendant, all in a judicial setting. As
                such, we would not want to require victims or victim
                representatives to have to make their statement under oath with
                the ever-present threat of a perjury charge limiting their ability to
                speak freely; nor would it be wise, in our view, to subject a victim
                or victim’s representative to defense cross-examination regarding
                comments made in a victim impact statement as a general rule.
                Nonetheless, when a victim impact statement strays from the
                effect that a crime had upon the victim and others and begins
                delving into substantive, unsworn, and otherwise unsupported
                allegations of other misconduct or poor character on the part of
                the defendant, caution should be used in assessing the weight to
                be given to such allegations, especially where the defendant is not
                provided an opportunity to respond directly to them.[1]


       Id. In other words, even in the context of a criminal sentencing hearing—where

       the defendant’s liberty is at stake—the defendant does not have the right to

       cross-examine a victim who has provided a victim impact statement.


[11]   Expungement proceedings are a far cry from criminal sentencing proceedings.

       Expungement is a right granted only because the legislature sought fit to create

       it. It is not enshrined in the constitution. Its parameters are set entirely by the




       1
        In this case, Ginger’s victim statement was limited to a brief description of some of Keene’s criminal actions
       and the lingering trauma she has suffered as a result. Tr. Vol. II p. 52-53.

       Court of Appeals of Indiana | Opinion 18A-XP-228 | January 23, 2019                                Page 5 of 7
       General Assembly, which has sought fit to condition the right to expungement

       on the ability of the victim to provide a statement.


[12]   We are confident that the purpose of victim statements in expungement

       proceedings is the same as that in criminal proceedings—to guarantee that the

       victim’s interests are fully and effectively represented as the trial court makes its

       expungement decision. And as in criminal proceedings, we would not want to

       require victims to have to make their statements under oath or to subject a

       victim to defense cross-examination.


[13]   We agree with Keene that an individual has a significant interest in seeking

       expungement and that the stigma that is associated with a criminal conviction is

       undeniable. But that interest does not even approach the interest of a criminal

       defendant whose liberty is at stake. Criminal defendants do not have the right

       to cross-examine victims regarding the content of victim impact statements.

       We likewise find that expungement petitioners do not have the right to cross-

       examine victims who provide victim statements as authorized by statute.

       Therefore, the fact that a cross-examination requirement was not written into

       the statute does not render it unconstitutional on its face, nor does the fact that

       Keene was not permitted to cross-examine the victim in this case render the

       statute unconstitutional as applied.


[14]   The trial court here had discretion in ruling on Keene’s petition. It considered

       the seriousness of Keene’s crime, the State’s objection, and the long-lasting

       traumatic effects experienced by Ginger in denying the petition. The trial court


       Court of Appeals of Indiana | Opinion 18A-XP-228 | January 23, 2019          Page 6 of 7
       could have also considered Keene’s attempts to diminish his own behavior, to

       repudiate his guilty plea, and to blame Ginger for his own criminal actions.

       Under these circumstances, we find that the trial court did not err by denying

       Keene’s petition.2


[15]   The judgment of the trial court is affirmed.


       May, J., and Tavitas, J., concur.




       2
           Keene has the right to re-petition for expungement in three years. I.C. § 35-38-9-9(j).


       Court of Appeals of Indiana | Opinion 18A-XP-228 | January 23, 2019                           Page 7 of 7
