                                                                                    Dec 31 2015, 9:53 am




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew M. Barker                                          Gregory F. Zoeller
Russell B. Cate                                           Attorney General of Indiana
Campbell Kyle Proffitt LLP
Noblesville, Indiana                                      Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

D.A.,                                                     December 31, 2015
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          48A02-1504-MI-215
        v.                                                Appeal from the Madison Circuit
                                                          Court
State of Indiana,                                         The Honorable Dennis D. Carroll,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          48C06-1408-MI-379



Najam, Judge.




Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015             Page 1 of 17
                                         Statement of the Case
[1]   D.A. appeals the trial court’s denial of his request to apply an expungement

      order to the records of a civil forfeiture proceeding that arose from the same

      facts underlying his now-expunged convictions. D.A. raises a single issue for

      our review, which is an issue of first impression: whether our expungement

      statutes apply to the records of civil forfeiture proceedings. We hold that, on

      these facts, the trial court erred when it did not apply the expungement order to

      the records of D.A.’s civil forfeiture proceeding.1


                                   Facts and Procedural History
[2]   On May 9, 2002, the Madison County Drug Task Force (“MCDTF”) set up a

      controlled drug buy in which a confidential informant purchased cocaine from

      D.A. The MCDTF set up additional controlled buys on May 15 and May 17.

      Subsequently, MCDTF officers arrested D.A. and seized $1,340 in United

      States currency from him. Six-hundred and twenty dollars were marked

      currency that the MCDTF had used in its controlled drug buys. D.A. used the

      remaining amount, $720, to facilitate the commission of D.A.’s dealing

      offenses, or that amount was the proceeds from those offenses.


[3]   Following his arrest, the State charged D.A. with dealing and possession

      offenses. On February 28, 2003, D.A. was convicted of dealing in marijuana,

      as a Class C felony, and possession of cocaine, as a Class C felony, under



      1
          We held oral argument on December 14, 2015, in the Court of Appeals Courtroom.


      Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015          Page 2 of 17
      criminal cause number 48D01-0210-FB-490 (“FB-490”). Meanwhile, the State

      also filed a civil forfeiture action against the $720 seized from D.A. during his

      arrest for the criminal offenses. The State’s forfeiture action was filed under the

      miscellaneous criminal cause number 48D01-0206-MC-292 (“MC-292”).

      Following D.A.’s convictions for the underlying offenses, on October 21, 2003,

      the trial court ordered the $720 forfeited either because D.A. had used that

      money to facilitate his commission of the underlying offenses or because that

      money was the proceeds from those offenses.


[4]   In August of 2014, D.A. filed a petition to expunge the records of his

      convictions in cause number FB-490. The trial court granted D.A.’s petition.

      Thirteen days later, D.A. requested the court to amend its expungement order

      to include and expunge the records of cause number MC-292, the civil forfeiture

      proceeding. After a hearing, the court denied D.A.’s request that the

      expungement order also be applied to the records of the civil forfeiture

      proceeding. This appeal ensued.


                                      Discussion and Decision
                      Whether D.A. Procedurally Defaulted on His Request
                      for the Trial Court to Extend its Expungement Order

[5]   D.A. appeals the denial of his request to extend the expungement order to the

      records of the civil forfeiture proceeding. However, we first discuss the State’s

      assertion that D.A. procedurally defaulted on his request for the expungement

      of the civil forfeiture records. Although the State did not object to D.A.’s

      additional filing in the trial court, we generally may affirm the trial court’s

      Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015   Page 3 of 17
      judgment on any basis supported by the record. E.g., Cook v. Ford Motor Co., 913

      N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied. With that general

      principle in mind, the State contends that this court should affirm the trial

      court’s denial of D.A.’s request for “additional expungement,” see Appellant’s

      App. at 2, because D.A.’s request was equivalent to filing a second

      expungement petition, which is generally prohibited, see Ind. Code § 35-38-9-

      9(h) (2014).2


[6]   But we cannot agree with the State’s premise that this is a valid basis on which

      this court may affirm the trial court’s judgment. “It is well settled that a

      complaining party has a duty to direct the trial court’s attention to a defective

      filing, and failure to raise an objection constitutes waiver on appeal.” Handy v.

      P.C. Bldg. Materials, Inc., 22 N.E.3d 603, 607 n.4 (Ind. Ct. App. 2014) (citing

      Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990)), trans. denied. Moreover, a

      party “may not take advantage of an error that he commits, invites, or which is

      the natural consequence of his own neglect or misconduct.” Id. (quotation

      marks omitted). Here, the State had the opportunity to object to D.A.’s

      additional filing, but it did not. Thus, this issue was not presented to the trial

      court. Indeed, in the trial court the State referred to D.A.’s filing as a motion to




      2
         All statutory references are to the statutes in effect at the time D.A. filed his petition for expungement. See,
      e.g., Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 215 (Ind. 2012). In his Reply Brief, D.A.
      asserts that the State erroneously relied on the current version of Indiana Code Section 35-38-9-9 for its
      argument that D.A. procedurally defaulted rather than the version in effect at the time D.A. filed his petition.
      But the statute in effect at the time D.A. filed his petition explicitly limited a petitioner to one expungement
      petition “during the petitioner’s lifetime.” I.C. § 35-38-9-9(h).

      Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015                           Page 4 of 17
      correct error, which is generally permitted under Indiana Trial Rule 59. See Tr.

      at 17. The State cannot now argue that the filing was defective. Handy, 22

      N.E.3d at 607 n.4. In other words, the State cannot use its own failure to

      object, whether that failure was intentional or inadvertent, as a sword to

      preempt our review of D.A.’s appeal. We conclude that the State’s argument

      regarding the timing of D.A.’s filing is not properly before us. Id.


                                          Statutory Interpretation

[7]   We thus turn to the merits of this appeal, which require us to interpret the

      Indiana Code.


              Statutory interpretation is a function for the courts, and our goal
              in statutory interpretation is to determine, give effect to, and
              implement the intent of the legislature as expressed in the plain
              language of its statutes. State v. Prater, 922 N.E.2d 746, 749 (Ind.
              Ct. App. 2010), trans. denied. “The first rule of statutory
              construction is that ‘[w]ords and phrases shall be taken in their
              plain, or ordinary and usual, sense.’” Id. (quoting Ind. Code § 1-
              1-4-1(1)) (alteration original). Further, courts may not “engraft
              new words” onto a statute or add restrictions where none exist.
              Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013).

              Statutory interpretation is a question of law and is reviewed de
              novo, or without deference to the trial court’s interpretation.
              Curley v. Lake Cnty. Bd. of Elections & Registration, 896 N.E.2d 24,
              34 (Ind. Ct. App. 2008), trans. denied. “When a statute has not
              previously been construed, our interpretation is controlled by the
              express language of the statute and the rules of statutory
              construction.” Prater, 922 N.E.2d at 748. “If a statute is
              unambiguous, that is, susceptible to but one meaning, we must
              give the statute its clear and plain meaning.” Curley, 896 N.E.2d
              at 34 (quotations omitted). “If a statute is susceptible to multiple

      Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015   Page 5 of 17
              interpretations, we must try to ascertain the legislature’s intent
              and interpret the statute so as to effectuate that intent.” Id.
              (quotation omitted). “We review the statute as a whole and
              presume the legislature intended logical application of the
              language used in the statute, so as to avoid unjust or absurd
              results.” Prater, 922 N.E.2d at 748. “[W]e must consider not
              only what the statute says but what it does not say.” Curley, 896
              N.E.2d at 37. In other words, “we are obliged to suppose that
              the General Assembly chose the language it did for a reason.”
              Prater, 922 N.E.2d at 750.


      Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798, 805-

      06 (Ind. Ct. App. 2015) (alterations in original).


[8]   The essential question in this appeal is whether our expungement statutes apply

      narrowly only to “conviction records” or apply more broadly to any records

      that “relate to . . . [a] conviction.” See I.C. § 35-38-9-4(c). Our expungement

      statutes are located within Indiana Code Chapter 35-38-9, which is titled

      “Sealing and Expunging Conviction Records” and consists of eleven sections.

      Sections 1 through 5 of that Chapter permit arrestees and defendants to petition

      an Indiana trial court for expungement of certain records. For example, D.A.

      filed his petition under Section 4,3 which in relevant part states:

              (c) Not earlier than the later of eight (8) years from the date of
              conviction, or three (3) years from the completion of the person’s



      3
        In his Reply Brief and at oral argument, D.A. asserted that, following expungement, his Class C felony
      convictions were reduced to Class D felonies and, therefore, different expungement statutes should now
      apply to him. But we are a court of review, and both D.A. and the trial court expressly relied on the
      expungement statutes that apply to Class C felony convictions. We review the trial court’s judgment
      accordingly.

      Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015                     Page 6 of 17
        sentence, unless the prosecuting attorney consents in writing to
        an earlier period, the person convicted of the felony may petition a court
        to expunge all conviction records, including records contained in:

                 (1) a court’s files;

                 (2) the files of the department of correction;

                 (3) the files of the bureau of motor vehicles; and

                 (4) the files of any other person who provided treatment or
                 services to the petitioning person under a court order;

        that relate to the person’s felony conviction.

        (d) A person who files a petition to expunge conviction records
        shall file the petition in a circuit or superior court in the county of
        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 eight (8) years (or within a shorter period agreed
                 to by the prosecuting attorney if the prosecuting attorney
                 has consented to a shorter period under subsection (c));

        the court may order the conviction records described in subsection (c)
        marked as expunged in accordance with section 7 of this chapter. A
        person whose records have been ordered marked as expunged
Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015      Page 7 of 17
              under this section is considered to have had the person’s records
              expunged for all purposes other than the disposition of the
              records.


      Id. (emphases added).


[9]   Also relevant to this appeal is Section 7,4 which discusses the effect of

      expunging records and states:


              (a) This section applies only to a person who has filed a petition
              for expungement under section 4 or 5 of this chapter and whose
              records have been ordered marked as expunged.

              (b) The court records and other public records relating to the arrest,
              conviction, or sentence of a person whose conviction records have been
              marked as expunged remain public records. However, the court shall
              order that the records be clearly and visibly marked or identified as being
              expunged. A petition for expungement granted under sections 4
              through 5 of this chapter does not affect an existing or pending
              driver’s license suspension.

              (c) The state police department, the bureau of motor vehicles,
              and any other law enforcement agency in possession of records
              that relate to the conviction ordered to be marked as expunged
              shall add an entry to the person’s record of arrest, conviction, or
              sentence in the criminal history data base stating that the record
              is marked as expunged.




      4
        Again, in his Reply Brief and at oral argument, D.A. asserted that Section 6 applied to him because his
      convictions are now Class D felonies. But as D.A. did not make these arguments to the trial court we do not
      consider them on appeal.

      Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015                    Page 8 of 17
       I.C. § 35-38-9-7 (emphasis added). And “[a] petition for expungement and an

       order for expungement are confidential.” I.C. § 35-38-9-10(i).


[10]   As we have recognized, the policy underlying our expungement statutes is to

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

       not experiencing many of the stigmas associated with a criminal

       conviction . . . .” J.B. v. State, 27 N.E.3d 336, 339 (Ind. Ct. App. 2015). To that

       end, Section 10 provides:


               (b) It is unlawful discrimination for any person to:


                        (1) suspend;


                        (2) expel;


                        (3) refuse to employ;


                        (4) refuse to admit;


                        (5) refuse to grant or renew a license, permit, or certificate
                        necessary to engage in any activity, occupation, or
                        profession;


                        or


                        (6) otherwise discriminate against;


               any person because of a conviction or arrest record expunged or
               sealed under this chapter.



       Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015       Page 9 of 17
        (c) The civil rights of a person whose conviction has been
        expunged shall be restored, including the right to vote, to hold
        public office, and to serve as a juror.


        (d) In any application for employment, a license, or other right or
        privilege, a person may be questioned about a previous criminal
        record only in terms that exclude expunged convictions or
        arrests, such as: “Have you ever been arrested for or convicted of
        a crime that has not been expunged by a court?”. [sic]


        (e) A person whose record is expunged shall be treated as if the person
        had never been convicted of the offense. However, upon a subsequent
        arrest or conviction for an unrelated offense, the prior expunged
        conviction:


                 (1) may be considered by the court in determining the
                 sentence imposed for the new offense;


                 (2) is a prior unrelated conviction for purposes of:


                          (A) a habitual offender enhancement; and


                          (B) enhancing the new offense based on a prior
                          conviction;


                 and


                 (3) may be admitted as evidence in the proceeding for a
                 new offense as if the conviction had not been expunged.


        (f) Any person that [sic] discriminates against a person as
        described in subsection (b) commits a Class C infraction and may
        be held in contempt by the court issuing the order of

Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015   Page 10 of 17
               expungement or by any other court of general jurisdiction. Any
               person may file a written motion of contempt to bring an alleged
               violation of this section to the attention of a court. In addition,
               the person is entitled to injunctive relief.


               (g) In any judicial or administrative proceeding alleging
               negligence or other fault, an order of expungement may be
               introduced as evidence of the person’s exercise of due care in
               hiring, retaining, licensing, certifying, admitting to a school or
               program, or otherwise transacting business or engaging in
               activity with the person to whom the order of expungement was
               issued.


               (h) A conviction that has been expunged under this chapter is not
               admissible as evidence in an action for negligent hiring,
               admission, or licensure against a person or entity who relied on
               the order.


       I.C. § 35-38-9-10 (emphasis added).


[11]   The first question we must consider is whether our expungement statutes are

       ambiguous with respect to the scope of the records to be expunged. We must

       conclude that they are. Again, Section 4 states that a person “may petition a

       court to expunge all conviction records, including records contained in[] a court’s

       files . . . that relate to the person’s felony conviction.” I.C. § 35-38-9-4

       (emphases added). This language is ambiguous. The phrase “conviction

       records” appears limiting, but the phrase “records . . . that relate to the person’s

       felony conviction” appears broad.


[12]   Nonetheless, the State asserts that “[t]he plain language of [Section 4] limits

       expungement to records of a criminal arrest or conviction.” Appellee’s Br. at 7.
       Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015    Page 11 of 17
       That is certainly a reasonable interpretation of “conviction records.” See I.C. §

       35-38-9-4. But the State’s argument ignores and renders meaningless the

       additional statutory directive to expunge all records “contained in[] a court’s

       files . . . that relate to the person’s felony conviction.” Id. (emphasis added).

       We will not read that additional directive as meaningless surplusage; rather,

       “we are obliged to suppose that the General Assembly chose the language it did

       for a reason.” Prater, 922 N.E.2d at 750.


[13]   Accordingly, we interpret Section 4 to require the court to expunge both a

       person’s “conviction records,” such as a judgment of conviction, and any other

       records “that relate to the person’s felony conviction.” I.C. § 35-38-9-4. And

       we conclude that where, as here, a civil forfeiture is ancillary to and premised

       on criminal activity for which the defendant was convicted, the records of that

       civil forfeiture “relate” to that conviction. Indeed, “before a forfeiture occurs,

       the State must demonstrate that the property sought in forfeiture was used to

       facilitate [certain] criminal activities.” Katner v. State, 655 N.E.2d 345, 348

       (Ind. 1995). Accordingly, D.A. was entitled to have the records of his civil

       forfeiture expunged along with his underlying conviction. I.C. § 35-38-9-4.


[14]   Still, the State argues that civil forfeiture records can never “relate” to a

       conviction simply because they are civil rather than criminal records. The

       State’s argument here is intertwined with its reading of “conviction records,”

       which we have already rejected. The statutory language that requires a court to

       expunge records that “relate” to a conviction makes no distinction between

       criminal records that relate to a conviction and civil records that relate to a

       Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015   Page 12 of 17
       conviction. Indeed, the statute refers broadly to “a court’s files,” not

       specifically to, for example, the court of conviction’s files. It is not this court’s

       place to “engraft new words” onto a statute or add restrictions where none

       exist. Kitchell, 997 N.E.2d at 1026.


[15]   At oral argument, the State argued that it is not clear that the civil forfeiture in

       MC-292 was based on the same criminal activity underlying D.A.’s convictions

       in FB-490. But the State raises this argument for the first time on appeal (and,

       at that, for the first time at the oral argument). In the trial court, D.A. expressly

       asserted that the civil forfeiture in MC-292 “directly related to [the] criminal

       prosecution” in FB-490. Tr. at 4. The State could have presented evidence to

       challenge that assertion and did not. We will not entertain this argument on

       appeal in the first instance.


[16]   Finally, the State argues that, even if we agree with D.A.’s arguments on the

       merits, this court “cannot grant” D.A. the relief he requests because “all records

       expunged pursuant to [Section 4] remain public record. The only change is that

       the records are marked or identified as being expunged.” Appellee’s Br. at 9-10.

       But the General Assembly clearly determined that such annotations are

       worthwhile. I.C. § 35-38-9-7. As such, we reject the State’s argument.


[17]   The expungement statutes are inherently remedial and, as such, should be

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

       v. State, 947 N.E.2d 486, 490 (Ind. Ct. App. 2011). The purpose of our

       expungement statutes is to “give individuals who have been convicted of certain


       Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015   Page 13 of 17
       crimes a second chance by not experiencing many of the stigmas associated

       with a criminal conviction . . . .” J.B., 27 N.E.3d at 339. That purpose would

       be frustrated by providing only incomplete or partial relief. Accordingly, we

       hold that, where, as here, a civil forfeiture is ancillary to a criminal conviction

       and the nexus between the civil forfeiture and the criminal conviction is

       established, a defendant may petition the trial court to expunge the records of

       that civil forfeiture along with the records of the related criminal conviction. In

       other words, where the factual basis for a criminal conviction and a civil

       forfeiture are the same, the records of the civil forfeiture proceeding relate to the

       person’s conviction for purposes of our expungement statutes. Because the trial

       court erred when it concluded otherwise, we reverse the trial court’s judgment

       and remand for further proceedings.


[18]   Reversed and remanded.


       Kirsch, J., concurs.


       Barnes, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015   Page 14 of 17
                                                    INTHE

                 COURT OF APPEALS OF INDIANA
       D.A.,                                                     Court of Appeals Case No.
                                                                 48A02-1504-MI-215
       Appellant-Petitioner,

               v.

       State of Indiana,
       Appellee-Respondent.




       Barnes, Judge, dissenting.


[19]   I respectfully dissent. I certainly understand, as the majority recognizes, that

       the overarching purpose of the expungement statutes is to remove “stigmas”

       associated with criminal convictions and to allow a fresh start for persons who

       meet the statutory requirements. J.B. v. State, 27 N.E.3d 336, 339 (Ind. Ct.

       App. 2015). However, I do not believe we are free to add language to the

       statutes to permit the expungement of records related to civil forfeitures.


[20]   First, although the majority does not find the distinction to be relevant, it is well

       settled that forfeiture proceedings such as the one D.A. seeks to have expunged

       are civil in nature, not punitive or criminal. See, e.g., Katner v. State, 655 N.E.2d

       345, 348 (Ind. 1995). Indeed, it is possible for a forfeiture to occur even if the

       Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015           Page 15 of 17
       person whose property is forfeited has never been convicted or even charged

       with a crime. Serrano v. State, 946 N.E.2d 1139, 1141 (Ind. 2011). What that

       means for purposes of this case is that, if D.A. had never been convicted of a

       crime but merely had his property forfeited, there is no possible basis upon

       which he could have sought expungement of the forfeiture records. In other

       words, a person who is subject to only forfeiture has no right to expungement,

       while a person who is also convicted of a related crime is entitled to

       expungement under the majority’s holding. It does not seem fair or equitable to

       me that a person also convicted of a crime is entitled to preferential treatment

       over a person who is not convicted of a crime.


[21]   Second, I note the general rule of statutory construction, “expressio unius est

       exclusio alterius,” which means that the enumeration of certain things in a

       statute implies the exclusion of all other things. Brown v. State, 774 N.E.2d

       1001, 1006 (Ind. Ct. App. 2002), trans. denied. Although not conclusive, it can

       be a useful aid in discerning legislative intent. Id. The expungement statutes

       were first enacted in 2013 and represented a sea change in Indiana criminal law.

       They have been amended twice since then. I presume the legislature carefully

       considered these statutes. At no time did it see fit to include forfeiture

       proceedings within the enumerated list of records subject to expungement,

       which expressly includes Department of Correction, Bureau of Motor Vehicles,

       and treatment records. I believe we should not add civil forfeitures to the list of

       records to be expunged by judicial action. If the legislature chooses to act on

       civil forfeitures, so be it.


       Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015   Page 16 of 17
[22]   Finally, I believe it is appropriate to consider the practical effect of

       expungement. As noted by the majority, despite arguments by D.A. to the

       contrary in his reply brief and at oral argument, the trial court addressed his

       expungement request as falling under Indiana Code Section 35-38-9-4. An

       expungement under this section does not result in sealing of the conviction

       records; instead, they remain public records. Ind. Code § 35-38-9-7(b). Thus,

       the fact of D.A.’s conviction will remain readily available to the public. Even if

       a conviction record is sealed under Indiana Code Section 35-38-9-6, in this day

       and age it will be practically impossible to prevent internet access to a person’s

       criminal record. In other words, the expungement cannot as a practical matter

       literally wipe a person’s slate clean in the eyes of an intrusive and

       technologically-savvy public. The effect of expungement, despite this public

       access and knowledge, comes through Indiana Code Section 35-38-9-10, which

       prohibits discrimination against someone based on an expunged criminal

       conviction. D.A. is entitled to this protection, regardless of whether his civil

       forfeiture record is expunged. I conclude he has received all the protection to

       which he is entitled by expungement of records directly related to his conviction

       and that he is not additionally entitled to expungement of the civil forfeiture

       judgment. These statutes, in my view, promise the erasure of a conviction, not

       anonymity and not more than the statutory language speaks to.


[23]   For these reasons, I dissent and vote to affirm the trial court.




       Court of Appeals of Indiana | Opinion 48A02-1504-MI-215 | December 31, 2015   Page 17 of 17
