MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Feb 27 2019, 5:57 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joe Duepner                                              Curtis T. Hill, Jr.
Duepner Law LLC                                          Attorney General of Indiana
Noblesville, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Holmes,                                          February 27, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-XP-1316
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1801-XP-4



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-XP-1316 | February 27, 2019               Page 1 of 5
[1]   Charles Holmes appeals the trial court’s order denying his petition to expunge

      his Class A Misdemeanor Domestic Battery conviction and his Class D Felony

      Domestic Battery conviction. Finding that the trial court should have granted

      expungement of the misdemeanor conviction and finding no error with respect

      to the felony conviction, we affirm in part, reverse in part, and remand with

      instructions.


[2]   On January 10, 2006, Holmes was convicted of Class A misdemeanor domestic

      battery against his wife. In November 2006, Holmes committed domestic

      battery once again. This time, the State charged him with Class D felony

      domestic battery due to his prior battery conviction. On April 13, 2009, Holmes

      was convicted of Class D felony domestic battery.


[3]   On January 26, 2018, Holmes filed a petition to expunge his misdemeanor and

      felony domestic battery convictions pursuant to Indiana Code sections 35-38-9-

      2 and -3, respectively. The State objected to expungement of the felony

      conviction,1 arguing that the statute under which he sought relief did not apply

      to convictions for felonies that resulted in bodily injury. Shortly thereafter,

      Holmes moved for summary judgment, proffering no other facts but asking for

      immediate relief. On February 8, 2018, the trial court entered an order denying

      expungement for both offenses. Holmes now appeals.




      1
          The State did not object to expungement of the misdemeanor conviction.


      Court of Appeals of Indiana | Memorandum Decision 18A-XP-1316 | February 27, 2019   Page 2 of 5
[4]   We will reverse a lower court’s ruling denying a petition to expunge only where

      the decision is clearly against the logic and effect of the facts and circumstances

      before it. Cline v. State, 61 N.E.3d 360, 362 (Ind. Ct. App. 2016). We review

      matters of statutory interpretation de novo because they present pure questions

      of law. Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010).


[5]   First, regarding the denial of expungement for the felony conviction, Holmes’s

      argument is unavailing. The 2006 version of the domestic battery statute says:


              (a) A person who knowingly or intentionally touches an individual
              who:

                       (1) is or was a spouse of the other person; . . .

              in a rude, insolent, or angry manner that results in bodily injury to the
              person . . . commits domestic battery, a Class A misdemeanor.

              (b) However, the offense under subsection (a) is a Class D felony if
              the person who committed the offense:

                       (1) has a previous, unrelated conviction:

                               (A) under this section . . . .


      Ind. Code § 35-42-2-1.3 (2006) (emphasis added).


[6]   So, to convict Holmes of Class D felony domestic battery in 2006, the State had

      to prove all the elements of Class A misdemeanor domestic battery, including

      the element that the touching resulted in bodily injury to the victim. Plus, the

      defendant had to have a prior, unrelated domestic battery conviction on his

      record. Indiana Code section 35-38-9-3(b)(3) states that expungement of a Class


      Court of Appeals of Indiana | Memorandum Decision 18A-XP-1316 | February 27, 2019   Page 3 of 5
      D felony conviction is not available for “[a] person convicted of a felony that

      resulted in bodily injury to another person.” Though Holmes’s charge was

      elevated from a misdemeanor to a felony because of his prior criminal history,

      the State was nonetheless required to prove that his actions resulted in bodily

      injury to another person, namely, his wife. As such, the trial court did not err in

      denying Holmes’s petition to expunge the felony conviction because the

      expungement statute under which he seeks relief is not applicable.


[7]   Second, regarding the denial of expungement for the misdemeanor conviction,

      the record does not indicate that the trial court examined this section of the

      petition pursuant to Indiana Code section 35-38-9-2. Rather, the trial court

      summarily denied expungement for the misdemeanor conviction without

      explanation.


[8]   Indiana Code section 35-38-9-2 says in pertinent part:


              (c) Not earlier than five (5) years after the date of conviction . . .
              the person convicted of the misdemeanor may petition a court to
              expunge all conviction records *** that relate to the person’s
              misdemeanor conviction.

                                                        ***

              (e) If the court finds by a preponderance of the evidence that:

                       (1) the period required by this section has elapsed;
                       (2) no charges are pending against the person;
                       (3) the person has paid all fines, fees, and court costs, and
                       satisfied any restitution obligation placed on the person as
                       part of the sentence; and
                       (4) the person has not been convicted of a crime within the
                       previous five (5) years . . .

      Court of Appeals of Indiana | Memorandum Decision 18A-XP-1316 | February 27, 2019   Page 4 of 5
               the court shall order the conviction records described in subsection
               (c) expunged in accordance with section 6 of this chapter.


       (Emphasis added.)


[9]    We have previously held that this statute unambiguously mandates the trial

       court to expunge a misdemeanor conviction when all four requirements are

       met. Taylor v. State, 7 N.E.3d 362, 365-66 (Ind. Ct. App. 2014). The legislature

       clearly intended to make expungement non-discretionary in these instances

       because the statute uses the word “shall” rather than the word “may.” Id.

       Accordingly, the trial court did not have discretion to deny Holmes’s request to

       expunge this conviction if all requirements were met.


[10]   Upon further review, we find that Holmes fulfilled all the necessary

       requirements for expungement of his misdemeanor conviction. More than five

       years have elapsed since the date of his misdemeanor conviction, no current

       charges are pending against him, he satisfied his sentencing obligation, and he

       has not been convicted of a crime in the past five years. Therefore, the trial

       court was required to expunge Holmes’s misdemeanor conviction.


[11]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions to expunge the misdemeanor conviction.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-XP-1316 | February 27, 2019   Page 5 of 5
