                                                                                       FILED
                                                                               Nov 01 2017, 5:37 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Adam C. Squiller                                          Curtis T. Hill, Jr.
      Squiller & Hamilton, LLP                                  Attorney General of Indiana
      Auburn, Indiana
                                                                Henry A. Flores, Jr.
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      W.R.,                                                     November 1, 2017
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                17A03-1703-XP-571
              v.                                                Appeal from the DeKalb Superior
                                                                Court
      State of Indiana,                                         The Honorable Kevin P. Wallace,
      Appellee-Respondent                                       Judge
                                                                Trial Court Cause No.
                                                                17D01-1612-XP-31



      May, Judge.


[1]   W.R. appeals the partial denial of his petition for expungement. He asserts the

      trial court abused its discretion when it refused to expunge his felony

      convictions. We affirm.




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                            Facts and Procedural History
[2]   On July 7, 1999, W.R. was convicted of two felony charges of dealing drugs.

      He completed the sentence ordered. On January 16, 2007, W.R. was convicted

      of misdemeanor operating while intoxicated. On December 16, 2016, W.R.

      filed a petition for expungement of those convictions and an arrest that did not

      result in conviction.


[3]   On January 24, 2017, the trial court held a hearing on W.R.’s petition. W.R.

      has worked for a pest control company in Fort Wayne for the last seven years.

      He now manages the business. Because of his successful completion of

      probation, the probation department invited him back to speak to youths at a

      high school. However, due to the felony charges, he is not allowed to

      personally provide pest control service to some places, such as some of the

      buildings owned by the City of Fort Wayne. The State did not present evidence

      or take a position at the hearing.


[4]   The trial court granted expungement of the misdemeanor charge and the arrest

      that did not result in a conviction. The trial court denied W.R.’s petition to

      expunge the felony convictions because the nature of the convictions, i.e.,

      dealing drugs, might be relevant to businesses deciding whether to exclude

      persons from their premises.



                                 Discussion and Decision
[5]   The pertinent part of the statute governing W.R.’s expungement petition states:

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                 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 under this section is considered to have had
                 the persons records expunged for all purposes other than the
                 disposition of the records.


      Ind. Code § 35-38-9-4(e) (2015) (emphasis added). 1


[6]   “The term ‘may’ in a statute ordinarily implies a permissive condition and a

      grant of discretion.” Tongate v. State, 954 N.E.2d 494, 496 (Ind. Ct. App. 2011),

      reh’g denied, trans. denied. Thus, the trial court is allowed discretion when

      deciding whether to grant or deny an expungement petition. Key v. State, 48




      1
          The parties agree W.R. meets the four requirements of subsection 4(e).


      Court of Appeals of Indiana | Opinion 17A03-1703-XP-571 | Novemebr 1, 2017          Page 3 of 6
      N.E.3d 333, 337 (Ind. Ct. App. 2015). W.R. contends the trial court abused

      that discretion when it denied his petition for expungement. An abuse of

      discretion occurs when the trial court’s decision is clearly against the logic and

      effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,

      871 (Ind. 2012), reh’g denied.


[7]   W.R. cites Cline v. State, 61 N.E.3d 360, 360 (Ind. Ct. App. 2016), as being “on

      all fours with the facts of this case,” (Appellant’s Br. at 8), such that a denial of

      his petition is an abuse of discretion, just as it was in Cline. The State argues

      Cline is distinguishable for several reasons.


[8]   Like W.R., Cline had two felony charges she requested expunged. Cline, 61

      N.E.3d at 361. Also, like W.R., Cline had led a generally successful life since

      those convictions. Id. at 363. She had “consistently been employed, and ha[d]

      obtained an Associate’s Degree in Business Administration, a CPR license, and

      a ServSafe certification. She testified that she had been promoted from food

      server to store management, but lost her job when store owners learned of her

      criminal record.” Id. However, in the time between those convictions and her

      petition, Cline had not committed any more crimes. W.R. has. Although the

      trial court here ordered W.R.’s misdemeanor conviction be expunged, that very

      misdemeanor distinguishes W.R.’s case from Cline.


[9]   Here, the trial court crafted its order specifically taking into consideration the

      decision in Cline. (See App. Vol. II at 9-10 (trial court cites to Cline regarding

      the remedial measures of the pertinent statute and the amount of discretion the


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       trial court is allowed).) In Cline, we held the “trial court’s articulation of its

       evaluative processes to be particularly troubling.” 2 Cline, 61 N.E.3d at 363.

       Additionally, it “appear[ed] that the trial court may have concluded that Cline

       had a total of eight convictions, as opposed to two.” Id.


[10]   That troubling articulation together with the ambiguity surrounding the

       evidence the court used to come to its decision led us to hold the trial court

       abused its discretion when it denied Cline’s petition. Here, though, the trial

       court was not combative in its speech and did not misconstrue the convictions

       to be expunged. The nature of the trial court’s order of denial of W.R.’s

       expungement petition is wholly different from the “troubling” language used by

       the trial court in Cline. Cline, 61 N.E.3d at 363.


[11]   That fact, together with the later conviction for operating while intoxicated,

       leads us to hold the trial court did not improperly exercise its discretion. See

       Rouster v. State, 705 N.E.2d 999, 1005 (Ind. 1999) (holding a trial court’s ability




       2
           At Cline’s expungement hearing, the trial court stated:

                  Well, Ms. Cline, obviously I remember you. I don’t have any fond memories of you (inaudible)
                  your criminal behavior. That doesn’t mean - that doesn’t mean that you should necessarily be
                  deprived of this opportunity but it doesn’t mean I’m not going to do this by (inaudible). I’m going
                  to think about it for a while. I’m concerned by the - the offenses you committed. Number one,
                  Forgery, a crime of dishonesty. Number two, dealing methamphetamine. Putting it bluntly, it’s a
                  pain in my ass. I have [to] deal with meth and heroin every damn day here and I’ve – I’ve had a
                  belly full. I’m not doing favors for people that are causing these problems in Jay County. I’m also
                  concerned by the fact that you’ve only been out of supervision for five years.
                  And I could turn that around and I could say hey, way to go, you’ve been out five years and you
                  haven’t – haven’t messed up.
                  That’s what I’m going to think about a little bit. I will rule on it within thirty days.
       Cline v. State, 61 N.E.3d 360, 361-62 (Ind. Ct. App. 2016).

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       to grant a motion does not mean denial was an abuse of discretion), reh’g denied.

       To do otherwise is to reweigh the evidence and substitute our judgment for that

       of the trial court. See Jones v. State, 62 N.E.3d 1205, 1208 (Ind. Ct. App. 2016)

       (it is improper to substitute appellate judgment for that of the trial court when

       reviewing for abuse of discretion). Accordingly, we conclude the trial court did

       not abuse its discretion in partially denying W.R.’s petition for expungement,

       and we affirm its decision.


[12]   Affirmed.


       Barnes, J., and Bradford, J., concur.




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