MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Feb 28 2018, 10:59 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jon C. Spurr                                             Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael J. Gilliam II,                                   February 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1707-XP-1754
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael Rader,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D05-1701-XP-77



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 84A01-1707-XP-1754 | February 28, 2018          Page 1 of 5
[1]   Michael J. Gilliam II appeals the trial court’s summary denial of his petition to

      expunge records related to his 2000 convictions for Class C felony operating a

      motor vehicle while intoxicated causing death and Class C felony driving while

      suspended resulting in death.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In 2000, Gilliam pled guilty to the above Class C offenses and was sentenced to

      concurrent four-year terms of imprisonment with two years suspended. Gilliam

      served his executed term on in-home detention and then successfully completed

      probation in January 2005.


[4]   On January 6, 2017, Gilliam petitioned the trial court to expunge his

      convictions and seal the record. The State did not consent to expungement of

      these records and, in fact, filed a written objection on May 2, 2017. Shortly

      thereafter, the trial court issued its order denying Gilliam’s petition pursuant to

      Ind. Code § 35-38-9-5(a)(2).


[5]   Gilliam filed, on May 12, 2017, what he styled as a “Motion to Reconsider”,

      along with a response to the State’s written objection. Appellant’s Appendix at

      29. The trial court held a hearing on Gilliam’s motion and, after taking the




      Court of Appeals of Indiana | Memorandum Decision 84A01-1707-XP-1754 | February 28, 2018   Page 2 of 5
      matter under advisement, denied the motion on June 30, 2017. Gilliam filed

      his notice of appeal on July 27, 2017.1


                                              Discussion & Decision


[6]   Under Indiana Code Chapter 35-38-9, criminal records may be expunged for

      certain qualifying offenses, and the exclusions and requirements for

      expungement vary based on the level or type of offense for which the person

      was convicted. See I.C. § 35-38-9-2 (misdemeanors); I.C. § 35–38–9–3 (Class D

      or Level 6 felonies); I.C. § 35-38-9-4 (other felonies except, among other

      exclusions, “a felony that resulted in serious bodily injury to another person”);

      I.C. § 35-38-9-5 (offenses committed by elected officials while in office and

      felonies that resulted in serious bodily injury). Depending on the offense,

      expungement may be either mandatory or discretionary upon certain findings

      by the trial court. Key v. State, 48 N.E.3d 333, 336 (Ind. Ct. App. 2015).


[7]   Gilliam’s arguments on appeal are all based on the misguided notion that I.C.

      § 35-38-9-4 rather than I.C. § 35-38-9-5 applies to his petition for expungement.

      Gilliam recognizes that under the latter section he would be required to provide



      1
        The State contends that the appeal is untimely because Gilliam’s motion to reconsider did not toll the time
      for filing the notice of appeal. We decline to favor form over substance. Gilliam’s motion was filed after
      entry of a final judgment and, though titled otherwise, clearly constituted a motion to correct error. See
      Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998) (“although substantially the same as a
      motion to reconsider, a motion requesting the court to revisit its final judgment must be considered a motion
      to correct error”); see also Snyder v. Snyder, 62 N.E.3d 455, 458 (Ind. Ct. App. 2016) (“motions to correct error
      are proper only after the entry of final judgment; any such motion filed prior to the entry of final judgment
      must be viewed as a motion to reconsider”). But see Scatterfield v. State, 30 N.E.3d 1271 (Ind. Ct. App. 2015)
      (treating a motion to reconsider entered after a final judgment as titled). We conclude that Gilliam’s notice
      of appeal was timely filed.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1707-XP-1754 | February 28, 2018              Page 3 of 5
      the trial court with the prosecuting attorney’s written consent to the

      expungement, which he has been unable to obtain.


[8]   The less onerous section 4 expressly excludes its application to “[a] person

      convicted of a felony that resulted in serious bodily injury to another person.”

      I.C. § 35-38-9-4(b)(3). On the other hand, section 5 applies to “a person

      convicted of a felony that resulted in serious bodily injury to another person.”

      I.C. § 35-38-9-5(a)(1). It is undisputed that Gilliam’s offenses resulted in the

      death of another person. We find disingenuous Gilliam’s argument that death

      is not included within the definition of serious bodily injury. “Serious bodily

      injury” is statutorily defined to include “bodily injury that creates a substantial

      risk of death or that causes…permanent or protracted loss or impairment of the

      function of a bodily member or organ”. Ind. Code § 35-31.5-2-292(4). “Case

      law has determined that death falls within the category of serious bodily

      injury.” State v. Lewis, 883 N.E.2d 847, 851 (Ind. Ct. App. 2008) (citing Nelson

      v. State, 664 N.E.2d 386, 388 (Ind. Ct. App. 1996) (“the bodily injury inflicted

      caused the victim permanent unconsciousness and the permanent loss of the

      function of all bodily members and organs”), trans. denied).


[9]   The trial court properly applied I.C. § 35-38-9-5 to Gilliam’s petition. The

      petition did not include an attached copy of the prosecuting attorney’s written

      consent, as required by I.C. § 34-38-9-8(b)(11). Thus, the trial court was

      permitted to summarily deny the petition without a hearing. See I.C. § 35-38-9-

      9(b). Moreover, the trial court had no discretion to grant the petition without

      the written consent of the prosecuting attorney. See I.C. § 35-38-9-5(e)(5).

      Court of Appeals of Indiana | Memorandum Decision 84A01-1707-XP-1754 | February 28, 2018   Page 4 of 5
[10]   Judgment affirmed.


[11]   May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1707-XP-1754 | February 28, 2018   Page 5 of 5
