                                                                 Mar 10 2015, 10:13 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jason L. McAuley                                          Gregory F. Zoeller
Bloomington, Indiana                                      Attorney General of Indiana
                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

J.B.,                                                     March 10, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          53A01-1408-CR-367
        v.                                                Appeal from the Monroe Circuit
                                                          Court.

State of Indiana,                                         The Honorable Marc R. Kellams, III,
                                                          Judge.
Appellee-Respondent.
                                                          Cause No. 53C02-9910-CM-3901




Riley, Judge.




Court of Appeals of Indiana | Opinion | 53A01-1408-CR-367 | March 10, 2015                 Page 1 of 9
                                      STATEMENT OF THE CASE

[1]   Appellant-Petitioner, J.B., appeals the trial court’s Order denying his petition

      for expungement.


[2]   We reverse and remand.1


                                                        ISSUE

[3]   J.B. raises one issue on appeal, which we restate as follows: Whether the trial

      court erred in denying his petition to expunge the criminal records relating to

      his misdemeanor conviction of battery.


                             FACTS AND PROCEDURAL HISTORY

[4]   On November 18, 1999, during his senior year of college in Bloomington,

      Indiana, J.B. pled guilty to one Count of battery, a Class A misdemeanor, Ind.

      Code § 35-42-2-1(a)(1). Pursuant to the terms of J.B.’s plea agreement, the trial

      court imposed a one-year sentence, suspended to probation. At the sentencing

      hearing, the trial court explained to J.B. that he could “earn dismissal of [his]

      conviction” by successfully completing probation and thirty hours of

      community service. (Tr. p. 9). J.B. fulfilled the terms of his sentence, and on




      1
        In general, when a trial court grants a petition for expungement, it must subsequently redact the petitioner’s
      name from any appellate decision and submit a copy of the same “to any publisher or organization to whom
      the opinion or memorandum decision is provided after the date of the order of expungement.” Ind. Code §
      35-38-9-6(c). Here, for the sake of efficiency, we have elected to refer to the petitioner by initials.

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      January 3, 2006, he filed an Application for Earned Dismissal with Probation

      Recommendation, which the trial court granted the same day. The trial court

      subsequently “order[ed] this cause dismissed without prejudice.” (Appellant’s

      App. p. 5).


[5]   On June 30, 2014, J.B. filed a Verified Petition to Expunge Records of

      Conviction, and on July 21, 2014, the State filed its consent thereto. On August

      6, 2014, the trial court denied J.B.’s petition. In particular, the trial court found

      that J.B. did not qualify for expungement pursuant to Indiana Code section 35-

      38-9-1 because his petition did not include any information “pertaining to an

      arrest.” (Appellant’s App. p. 13). On August 12, 2014, J.B. filed a motion to

      reconsider. He clarified that his expungement petition was filed pursuant to

      Indiana Code section 35-38-9-2 in order to have the records of his conviction—

      not arrest—expunged.


[6]   On August 21, 2014, the trial court issued its Order, denying J.B.’s motion to

      reconsider. The trial court explained that because J.B. was granted an earned

      dismissal, his judgment of conviction was vacated. Thus, the trial court found

      that “[u]nder the statute, [J.B.] is not eligible for expungement of conviction as

      there is no conviction to expunge.” (Appellant’s App. p. 15).


[7]   J.B. now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[8]   J.B. claims that the trial court erred in denying his petition for expungement

      because, notwithstanding the fact that his conviction was ultimately dismissed,

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       he is entitled to have the corresponding records expunged. In response, the State

       concedes that if dismissed convictions are eligible for expungement, then J.B.’s

       records should be expunged. However, because Indiana Code section 35-38-9-2

       does not contain an “express exception” permitting the expungement of

       dismissed convictions, the State contends that “the trial court’s ruling appears

       reasonable.” (State’s Br. p. 5).


                                              I. Standard of Review

[9]    J.B.’s appeal presents a question of statutory interpretation. The interpretation

       of a statute is a question of law, which our court reviews de novo. Taylor v. State,

       7 N.E.3d 362, 365 (Ind. Ct. App. 2014). If “the statutory language is clear and

       unambiguous[,]” we do not apply any rules of statutory construction. Id.

       Rather, words and phrases will “be given their plain, ordinary, and usual

       meanings.” Id. However, where the “statute is susceptible to multiple

       interpretations, it is deemed ambiguous and open to judicial construction.” Id.


[10]   When construing a statute, we endeavor to give effect to the intent of the

       General Assembly. Id. We presume that the legislature intended the statutory

       language to “be applied logically and not to bring about an unjust or absurd

       result.” Alvey v. State, 10 N.E.3d 1031, 1033 (Ind. Ct. App.), aff’d on reh’g, 15

       N.E.3d 72 (Ind. Ct. App. 2014). In order to determine and implement the

       General Assembly’s intent, we must consider the statute as a whole, “read[ing]

       sections of an act together so that no part is rendered meaningless if it can be

       harmonized with the remainder of the statute.” Id. In addition to the language



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       itself, we may look “to the nature and subject matter of the act and the object to

       be accomplished thereby.” Id.


                                                 II. Expungement

[11]   Effective March 26, 2014, Indiana’s expungement law provides, in part, that

       “[n]ot earlier than five (5) years after the date” that a person is convicted of a

       misdemeanor, he or she

               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 misdemeanor conviction.
       I.C. § 35-38-9-2(b). Thereafter, if the trial court finds the following by a

       preponderance of the evidence:

               (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
               five (5) years . . . ;
               [then] the court shall order the conviction records . . . expunged in
               accordance with section 6 of this chapter.
       I.C. § 35-38-9-2(d).


[12]   Our court has interpreted this statute as “unambiguously requir[ing]

       expungement when all of the statutory requirements are satisfied.” Taylor, 7

       N.E.3d at 365. In this case, it is undisputed that the requisite amount of time

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       has passed, that no charges are currently pending against J.B., that J.B. has paid

       all fees and he satisfactorily completed his probation, and that he has not been

       convicted of any crimes within the previous five years. Accordingly, the only

       question before our court is whether the trial court’s 2006 dismissal of J.B.’s

       conviction disqualifies him from having his conviction expunged. We hold that

       it does not.


[13]   J.B. was convicted of Class A misdemeanor battery and sentenced to a one-year

       term of probation. Following the completion of his sentence, the trial court

       dismissed J.B.’s conviction. The clear and unequivocal language of the

       expungement statute permits a person who has been convicted of a

       misdemeanor—i.e., J.B.—to “petition a court to expunge all conviction records.”

       I.C. § 35-38-9-2(b) (emphasis added). As this court has previously indicated,

       expungement is not an automatic consequence of dismissal. Zagorac v. State,

       943 N.E.2d 384, 391 (Ind. Ct. App. 2011), reh’g denied. Accordingly, by simply

       dismissing J.B.’s judgment of conviction, the trial court did nothing to purge the

       records of the court and other agencies that relate to that conviction.


[14]   Indiana courts have long recognized the stigma associated with having a

       criminal conviction. It “is a stigma that follows [a person] through life, creating

       many roadblocks to rehabilitation.” Taylor, 7 N.E.3d at 366. Accordingly, the

       General Assembly “intended 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—especially where an individual has



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       completed the requirements established by the trial court and has since been a

       law-abiding citizen.” Id. at 367.


[15]   In furtherance of this policy objective, a related section of the expungement

       statute states that when a petitioner satisfies the criteria for expungement, the

       trial court must order the department of correction, the bureau of motor

       vehicles, and other law enforcement agencies and individuals “to prohibit the

       release of the person’s records or information in the person’s records to anyone

       without a court order, other than a law enforcement officer acting in the course

       of the officer’s official duty.” I.C. § 35-38-9-6(a)(1). In addition, the trial court

       must order the State Police Department to seal the expunged conviction records

       maintained in the central repository for criminal history information. I.C. § 35-

       38-9-6(a)(2). Thereafter, these sealed records may only be disclosed to a

       prosecuting attorney, defense attorney, probation department, the FBI or other

       similar entity under authority of a court order and only if needed to carry out

       official duties. I.C. § 35-38-9-6(a)(2). However, any records maintained by the

       sentencing court, juvenile court, or appellate court “concerning the person shall

       be permanently sealed.” I.C. § 35-38-9-6(b). Considering the statute as a

       whole, it is evident that the General Assembly intended to eliminate the stigma

       of a criminal conviction by sealing off the paper trail establishing that there ever

       was a conviction.


[16]   Although our court has not yet addressed the issue of a post-conviction

       dismissal under the current expungement statute, in State v. Bergman, 558

       N.E.2d 1111, 1112 (Ind. Ct. App. 1990), we considered expungement in the

       Court of Appeals of Indiana | Opinion | 53A01-1408-CR-367 | March 10, 2015    Page 7 of 9
context of a post-conviction gubernatorial pardon. In Bergman, following his

pardon, the petitioner was granted an expungement of his conviction record,

which the State challenged. Id. at 1112-13. Similar to the present case, the

expungement statute then in-force2 was silent regarding the expungement of

records when there has been a post-conviction pardon. Id. at 1113.

Nevertheless, because a pardon effectively “blots out of existence the guilt,” we

determined that expunging the record of Bergman’s conviction was necessary in

order to implement the executive mandate to “clear his name.” Id. at 1113-14

(quoting Kelley v. State, 185 N.E. 453, 458 (Ind. 1933)). Likewise, we find that

the dismissal of J.B.’s conviction would be meaningless if the records

concerning that conviction were to remain accessible, and we cannot conclude

that the General Assembly would have intended such a result. Accordingly, we

remand with instructions for the trial court to order the conviction records

described in Indiana Code section 35-38-9-2(b) to be expunged in accordance

with Indiana Code section 35-38-9-6.




2
  At the time of the Bergman decision, the expungement statute provided that criminal arrest records could be
expunged whenever “(1) an individual is arrested but no criminal charges are filed against him; or (2) all
criminal charges filed against an individual are dropped because: (A) of a mistaken identity; (B) no offense
was in fact committed; or (C) there was an absence of probable cause.” I.C. § 35-38-5-1(a) (1988), repealed by
Ind. Pub. L. 181-2014, § 3 (now codified at I.C. ch. 35-38-9).

Court of Appeals of Indiana | Opinion | 53A01-1408-CR-367 | March 10, 2015                         Page 8 of 9
                                                CONCLUSION

[17]   Based on the foregoing, we conclude that the trial court erred in denying J.B.’s

       petition to have the records relating to his misdemeanor criminal conviction

       expunged.


[18]   Reversed and remanded.


[19]   Vaidik, C.J. and Baker, J. concur




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