                                                                     FILED
                                                                 Feb 03 2017, 7:58 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Lonnie L. Burton                                           Curtis T. Hill, Jr.
Aberdeen, Washington                                       Attorney General of Indiana

                                                           Kyle Hunter
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Lonnie L. Burton,                                          February 3, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           10A01-1606-XP-1327
        v.                                                 Appeal from the Clark Circuit
                                                           Court
State of Indiana,                                          The Honorable Joseph P. Weber,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           10C03-1511-XP-36



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017              Page 1 of 6
                                           Case Summary
[1]   Lonnie L. Burton petitioned to expunge two Class D felony convictions (theft

      and fraud) pursuant to Indiana Code section 35-38-9-3, and the State moved to

      dismiss, arguing that Burton is not eligible for expungement because he is a

      “sex or violent offender” based on other convictions. The trial court granted

      the State’s motion to dismiss, and Burton appeals. Because the plain language

      of Section 35-38-9-3(b) provides that a “sex or violent offender” is not eligible

      for expungement of Class D/Level 6 felonies, we affirm the trial court.



                             Facts and Procedural History
[2]   In November 2015, Burton filed a petition to expunge two 1992 Class D felony

      convictions (theft and fraud) from Clark Circuit Court pursuant to Section 35-

      38-9-3. Burton’s petition listed all of his convictions, which include 1992

      convictions for rape, child molestation, and sexual exploitation of a minor from

      the State of Washington and a 1994 conviction for rape from the State of

      Washington. Appellant’s App. Vol. II p. 9. The State moved to dismiss

      Burton’s expungement petition. Specifically, the State argued that Burton was

      not eligible to expunge his Class D felony convictions because Section 35-38-9-3

      does not apply to a “sex or violent offender” and Burton is a “sex or violent




      Court of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017   Page 2 of 6
      offender” based on his State of Washington convictions. Id. at 14-15. The trial

      court granted the State’s motion without holding a hearing.1 Id. at 5.


[3]   Burton, pro se, now appeals.



                                   Discussion and Decision
[4]   Burton contends that the trial court erred in dismissing his expungement

      petition. By enacting the expungement statutes, our legislature intended to give

      individuals who have been convicted of certain crimes a second chance by

      providing an opportunity for relief from the stigma associated with their

      criminal convictions. Cline v. State, 61 N.E.3d 360, 362 (Ind. Ct. App. 2016).

      Because the expungement statutes are inherently remedial, they should be

      liberally construed to advance the remedy for which they were enacted. Id.


[5]   Here, Burton filed an expungement petition pursuant to Section 35-38-9-3.

      Under this section, a person convicted of a Class D felony (for a crime

      committed before July 1, 2014) or a Level 6 felony (for a crime committed after

      June 30, 2014) may petition for expungement eight years after the date of




      1
        Burton, citing Indiana Code section 35-38-9-9(a), argues that the trial court erred by not holding a hearing
      in light of the State’s objection to his expungement petition. This Court has already examined this issue,
      concluding that according to Section 35-38-9-9(b), even 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. Key v. State, 48 N.E.3d 333, 337-38 (Ind. Ct. App. 2015). Here, the State filed a motion to
      dismiss alleging that Burton is not eligible for expungement because he is a “sex or violent offender,” and the
      trial court granted the State’s motion. Accordingly, the trial court did not err by summarily denying Burton’s
      petition. Cf. id. at 338-39 (holding that summary denial was not appropriate because there was no evidence,
      for example, that “Key’s petition was filed too soon or that he was convicted of a disqualifying offense”).

      Court of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017                         Page 3 of 6
conviction (unless the prosecutor consents in writing to an earlier period). Ind.

Code Ann. § 35-38-9-3(a), (c) (West Supp. 2016). If the trial court finds by a

preponderance of the evidence that the requirements of subsection (e) have been

met, it “shall” order expungement. I.C. § 35-38-9-3(e). Section 35-38-9-3,

however, does not apply to:

        (1) An elected official convicted of an offense while serving the
        official’s term or as a candidate for public office.


        (2) A sex or violent offender (as defined in IC 11-8-8-5).


        (3) A person convicted of a felony that resulted in bodily injury to
        another person.


        (4) A person convicted of perjury (IC 35-44.1-2-1) or official
        misconduct (IC 35-44.1-1-1).


        (5) A person convicted of an offense described in:


                 (A) IC 35-42-1;


                 (B) IC 35-42-3.5; or


                 (C) IC 35-42-4.


        (6) A person convicted of two (2) or more felony offenses that:


                 (A) involved the unlawful use of a deadly weapon; and




Court of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017   Page 4 of 6
                       (B) were not committed as part of the same episode of criminal
                       conduct.

      I.C. § 35-38-9-3(b) (emphasis added).

[6]   Burton does not dispute that he is a “sex or violent offender” as defined in

      Section 11-8-8-5 by virtue of his State of Washington convictions for rape, child

      molestation, and sexual exploitation of a minor. Instead, Burton argues that

      Section 35-38-9-3(b) is a list of offenses that “may not themselves be expunged,

      and do not disqualify a person convicted of one of those offenses from seeking

      expungement on other convictions not listed.” Appellant’s Br. p. 10. This is a

      question of law, which we review de novo.


[7]   Our primary goal in statutory interpretation is to determine and give effect to

      the intent of the legislature. D.A. v. State, 58 N.E.3d 169, 171-72 (Ind. 2016)

      (examining expungement statute). The best evidence of legislative intent is the

      statute’s language, so we begin our analysis with those words. Id. “When a

      statute’s language allows only one meaning, we accept what it says without

      enlarging or restricting its plain and obvious meaning.” Id. at 171-72. “‘In other

      words, when the meaning of the words is plain on paper, we need not resort to

      other rules of statutory construction to divine intent.’” Id. at 172 (quoting

      Jackson v. State, 50 N.E.3d 767, 772 (Ind. 2016)).


[8]   We find that the statutory language is plain. That is, Section 35-38-9-3(b)

      provides that expungement of Class D/Level 6 felonies is not available to

      people who have been convicted of certain disqualifying offenses. Most of the

      offenses listed are Class C/Level 5 felonies and higher, such as murder (Indiana

      Court of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017   Page 5 of 6
      Code section 35-42-1-1). Contrary to how Burton would have the statute read,

      Section 35-38-9-3(b) does not say that expungement is not available if the

      conviction sought to be expunged is “_____.” In addition, Section 35-38-9-3(b)

      provides that expungement of Class D/Level 6 felonies is not available to a

      “sex or violent offender”; notably, it does not say a “sex or violent offense.”

      This is critical because a “sex or violent offender” has a very specific meaning.

      Because Burton is a “sex or violent offender” as defined by Section 11-8-8-5, he

      is ineligible for expungement of his Class D felonies under Section 35-38-9-3.2

      We therefore affirm the trial court’s dismissal of his petition.


[9]   Affirmed.

      Bradford, J., and Brown, J., concur.




      2
       Indiana Code section 35-38-9-2 governs expungement of misdemeanors. Unlike the statute as issue here,
      Section 35-38-9-2 does not state that it is inapplicable to a “sex or violent offender.” Accordingly, a “sex or
      violent offender” is eligible for expungement of misdemeanors.

      Court of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017                          Page 6 of 6
