                                                                       FILED
                                                                  Oct 19 2016, 6:14 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Patricia Caress McMath                                     Gregory F. Zoeller
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Henry A. Flores, Jr.
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      T.A.,                                                      October 19, 2016

      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 49A04-1602-JV-368
              v.                                                 Appeal from Marion Superior Court.
                                                                 The Honorable Marilyn A. Moores,
                                                                 Judge.
      State of Indiana,                                          The Honorable Geoffrey A. Gaither,
      Appellee-Respondent.                                       Magistrate.
                                                                 Cause Nos. 49D09-1210-JD-2749
                                                                 49D09-1301-JD-40
                                                                 49D09-1304-JD-1004
                                                                 49D09-1305-JD-1375
                                                                 49D09-1512-JM-1024
                                                                 49D09-1512-JM-1025



      Barteau, Senior Judge


                                       Statement of the Case
[1]   T.A. appeals the juvenile court’s denial of his petitions for expungement in six

      juvenile proceedings. We reverse and remand with instructions.


      Court of Appeals of Indiana | Opinion 49A04-1602-JV-368 | October 19, 2016               Page 1 of 8
                                                       Issue
[2]   T.A. raises one question of law, which we restate as: whether the juvenile court

      erred in denying his petition for expungement.


                                Facts and Procedural History
[3]   T.A. has had numerous brushes with the juvenile justice system, resulting in

      multiple cases. The State dismissed one of the cases, JD-2749, in 2012, and

      dismissed three more, JD-40, JD-1004, and JD-1375, in 2013. Two other cases,

      JM-1024 and JM-1025, arose from arrests of T.A. in 2008 and 2009, but the

      State declined to file formal delinquency petitions.


[4]   On December 3, 2015, T.A., who is now an adult, filed a petition for

      expungement. In the petition, T.A. asked the juvenile court to expunge his

      records from the six cause numbers referenced above. The State did not file a

      written response to the petition. The juvenile court issued a scheduling order

      on January 5, 2016, setting a hearing for January 26, 2016.


[5]   It is undisputed that, at the time T.A. filed his petition, he did not have any

      pending criminal charges. It is further undisputed that, after T.A. filed his

      petition but before the January 26, 2016 hearing, the State filed an unspecified

      criminal charge against him. After the hearing, the juvenile court denied T.A.’s

      petition in its entirety. This appeal followed.




      Court of Appeals of Indiana | Opinion 49A04-1602-JV-368 | October 19, 2016   Page 2 of 8
                                    Discussion and Decision
[6]   T.A. argues the juvenile court should have immediately granted his petition for

      expungement because he met all of the statutory requirements on the date he

      filed the petition. The State responds that the juvenile court did not err because

      T.A. had a pending criminal charge at the time of the hearing and because the

      State has an interest in maintaining access to all of T.A.’s records.


[7]   There are no disputes of fact. Instead, the parties present questions of statutory

      interpretation. We review questions of law de novo. Dada v. State, 39 N.E.3d

      686, 687 (Ind. Ct. App. 2015). If the statutory language is clear and

      unambiguous, we refrain from applying rules of statutory instruction and

      instead give the words of the statute their plain and ordinary meaning. J.B. v.

      State, 27 N.E.3d 336, 338 (Ind. Ct. App. 2015).


[8]   When the language in a statute is susceptible to multiple interpretations, it is

      deemed ambiguous and open to judicial construction. Taylor v. State, 7 N.E.3d

      362, 365 (Ind. Ct. App. 2014). We read portions of a statute and portions of an

      act together so that no part is rendered meaningless but is instead harmonized

      with the remainder of the statute or act. See id.


[9]   The governing statute provides, in relevant part:

              (a) This section applies only to a person who has been arrested,
              charged with an offense, or alleged to be a delinquent child, if:
              (1) the arrest, criminal charge, or juvenile delinquency allegation:
              (A) did not result in a conviction or juvenile adjudication; or


      Court of Appeals of Indiana | Opinion 49A04-1602-JV-368 | October 19, 2016     Page 3 of 8
        (B) resulted in a conviction or juvenile adjudication and the
        conviction or adjudication was vacated on appeal; and
        (2) the person is not currently participating in a pretrial diversion
        program.
        (b) Not earlier than one (1) year after the date of arrest, criminal
        charge, or juvenile delinquency allegation (whichever is later), if
        the person was not convicted or adjudicated a delinquent child,
        or the date of the opinion vacating the conviction or adjudication
        becomes final (unless the prosecuting attorney agrees in writing
        to an earlier time), the person may petition the court for
        expungement of the records related to the arrest, criminal charge,
        or juvenile delinquency allegation.
        (c) A petition for expungement of records must be verified and
        filed in a circuit or superior court in the county where the
        criminal charges or juvenile delinquency allegation was filed, or
        if no criminal charges or juvenile delinquency allegation was
        filed, in the county where the arrest occurred. The petition must
        set forth:
        (1) the date of the arrest, criminal charges, or juvenile
        delinquency allegation, and conviction (if applicable);
        (2) the county in which the arrest occurred, the county in which
        the information or indictment was filed, and the county in which
        the juvenile delinquency allegation was filed, if applicable;
        (3) the law enforcement agency employing the arresting officer, if
        known;
        (4) the court in which the criminal charges or juvenile
        delinquency allegation was filed, if applicable;
        (5) any other known identifying information, such as:
        (A) the name of the arresting officer;
        (B) case number or court cause number;
        (C) any aliases or other names used by the petitioner;
        (D) the petitioner’s driver’s license number; and


Court of Appeals of Indiana | Opinion 49A04-1602-JV-368 | October 19, 2016      Page 4 of 8
               (E) a list of each criminal charge and its disposition, if applicable;
               (6) the date of the petitioner’s birth; and
               (7) the petitioner’s Social Security number.
               A person who files a petition under this section is not required to
               pay a filing fee.
               (d) The court shall serve a copy of the petition on the prosecuting
               attorney.
               (e) Upon receipt of a petition for expungement, the court:
               (1) may summarily deny the petition if the petition does not meet
               the requirements of this section, or if the statements contained in
               the petition indicate that the petitioner is not entitled to relief;
               and
               (2) shall grant the petition unless:
               (A) the conditions described in subsection (a) have not been met;
               or
               (B) criminal charges are pending against the person.

       Ind. Code § 35-38-9-1 (2015).


[10]   T.A. claims that according to the plain language of subsection (e), the juvenile

       court was required to act on his petition immediately without scheduling a

       hearing. We disagree. A companion statute on petitions for expungement,

       Indiana Code section 35-38-9-9(a) (2015), provides, in relevant part, “If the

       prosecuting attorney does not object . . . the court may grant the petition for

       expungement without a hearing.” (emphasis added). Use of the word “may”

       ordinarily implies a permissive condition and a grant of discretion. Key v. State,

       48 N.E.3d 333, 337 (Ind. Ct. App. 2015). If we were to read the phrase “Upon

       receipt of a petition for expungement,” as set forth in Indiana Code section 35-

       38-9-1(e), to require courts to immediately act upon petitions without
       Court of Appeals of Indiana | Opinion 49A04-1602-JV-368 | October 19, 2016       Page 5 of 8
       scheduling a hearing, then Indiana Code section 35-38-9-9(a) would be

       rendered meaningless as applied to petitions filed under Indiana Code section

       35-38-9-1. We are required to read sections of an act in a manner that

       harmonizes them.


[11]   Furthermore, Indiana Code section 35-38-9-1(d) requires a petitioner to serve a

       copy of the petition on the prosecutor, and Indiana Code section 35-38-9-9(c)

       permits the prosecutor to file a written objection within an unspecified period of
              1
       time. Thus, the State must be given an opportunity to respond to a petition for

       expungement, which further weighs against reading Indiana Code section 35-

       38-9-1(e) as requiring courts to act upon a petition for expungement

       immediately when it is filed.


[12]   Finally, Indiana Code section 35-38-9-1(e) requires a court to deny a petition if

       the petitioner has pending criminal charges, but that statute does not explicitly

       require a petitioner to disclose pending charges in his or her petition. It is

       difficult to discern how a court could learn of pending charges unless the State

       is permitted time to file an objection or the court is permitted to schedule a

       hearing, even if the State does not object. Based upon the language of these

       statutes, we conclude the juvenile court in this case was authorized to schedule




       1
         Neither statute sets a deadline for the prosecutor to respond to a petition filed pursuant to Indiana Code
       section 35-38-9-1. By contrast, when a person files a petition to expunge a misdemeanor or felony
       conviction, the prosecuting attorney has thirty (30) days to file a response. Ind. Code § 35-38-9-8(g) (2015).

       Court of Appeals of Indiana | Opinion 49A04-1602-JV-368 | October 19, 2016                           Page 6 of 8
       a hearing even though the State failed to file a written objection to T.A.’s

       petition.


[13]   Next, T.A. argues that pursuant to the plain language of the statute, the trial

       court should have granted the petition because T.A. did not have any pending

       charges when he filed it. The State responds that, pursuant to statute, the

       juvenile court was permitted to consider T.A.’s post-petition criminal charge.


[14]   Indiana Code section 35-38-9-1(e) states, in relevant part: “Upon receipt of a

       petition for expungement, the court . . . shall grant the petition unless . . .

       criminal charges are pending against the person.” The use of the word “shall”

       “is construed as ‘mandatory language creating a statutory right to a particular

       outcome after certain conditions are met.’” Taylor, 7 N.E.3d at 365 (quoting

       Alden v. State, 983 N.E.2d 186, 189 (Ind. Ct. App. 2013), trans. denied). The use

       of the phrase “upon receipt” establishes that, for purposes of determining

       whether a petition meets the statutory requirements, the crucial time frame is

       when the petition was filed, rather than a later date.


[15]   The State asserts it would be absurd for the trial court to be allowed to schedule

       a hearing but disallowed from considering criminal charges that were filed after

       the petitioner filed the petition for expungement. However, the plain language

       of section 35-38-9-1(e), as applied to the consideration of whether a petition

       meets the requirements for expungement, does not contradict any other portion

       of the statute or the act as a whole. As a result, we must apply the plain

       language of the statute without recourse to the rules of statutory construction,


       Court of Appeals of Indiana | Opinion 49A04-1602-JV-368 | October 19, 2016   Page 7 of 8
       and we will not read into the statute “a legislative intent other than that which

       is clearly stated.” Trout v. State, 28 N.E.3d 267, 271 (Ind. Ct. App. 2015). We

       conclude the court should have determined whether there was a pending

       criminal charge at the time the petition was filed, as opposed to a later date. As

       a result, the court erred here in considering T.A.’s post-filing criminal charge.

       See id. at 272 (trial court that denied petition for expungement erred in

       considering evidence of another violent act by petitioner that did not result in a

       conviction, even though the petitioner did not deny committing the act). The

       State does not claim that T.A.’s petition violated any other provisions of

       Indiana Code section 35-38-9-1. We must reverse the denial of the petition.


                                                  Conclusion
[16]   For the reasons stated above, we reverse the juvenile court’s judgment and

       remand with instructions to grant the petition.


[17]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1602-JV-368 | October 19, 2016   Page 8 of 8
