                                                                          FILED
                                                                      Oct 17 2018, 8:49 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Thomas A. DeCola                                           Curtis T. Hill, Jr.
North Judson, Indiana                                      Attorney General of Indiana
                                                           Henry A. Flores, Jr.
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Thomas A. DeCola,                                          October 17, 2018
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-MI-732
        v.                                                 Appeal from the Jasper Superior
                                                           Court
State of Indiana,                                          The Honorable Russell D. Bailey,
Appellee-Respondent                                        Judge
                                                           Trial Court Cause No.
                                                           37D01-1802-MI-81



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-MI-732 | October 17, 2018                           Page 1 of 5
[1]   Thomas DeCola appeals the trial court’s order denying his request to expunge

      any and all records pertaining to a school suspension. DeCola also argues that

      he was improperly denied a jury trial. Finding no error, we affirm.


                                                     Facts

[2]   DeCola was suspended from Kankakee Valley High School in 2001; because of

      this, his driving privileges were subsequently suspended.1 DeCola regained his

      driving privileges in 2002.


[3]   On February 6, 2018, DeCola petitioned the trial court to expunge any and all

      records pertaining to his 2001 school suspension. On February 13, 2018, the

      trial court denied the petition to expunge. Shortly thereafter, on February 20,

      2018, DeCola filed a new expungement petition and a motion to correct error.


[4]   At a hearing on March 8, 2018, the trial court denied both the new petition to

      expunge and the motion to correct error. At the hearing, the trial court made

      clear that DeCola could not identify any relevant statute as a basis for his claim.

      DeCola now appeals.




      1
          Ind. Code § 9-24-2-4(a).


      Court of Appeals of Indiana | Opinion 18A-MI-732 | October 17, 2018       Page 2 of 5
                               Discussion and Decision

[5]   DeCola presents two arguments on appeal: (1) the trial court erred when it

      denied his request to expunge any and all records pertaining to his 2001 school

      suspension; and (2) he was entitled to a jury trial.


[6]   We reverse a lower court’s ruling denying a petition to expunge only where the

      decision is clearly against the logic and effect of the facts and circumstances

      before it. Cline v. State, 61 N.E.3d 360, 362 (Ind. Ct. App. 2016).


[7]   First, DeCola’s claim that the trial court improperly denied his petition to

      expunge the school suspension from his record is totally without merit. The

      Indiana Code does not allow for an individual to have a school suspension

      expunged from his records. Rather, expungement as a remedy is limited to

      criminal arrests and convictions. Ind. Code § 35-38-9-2(-5). DeCola would have

      us act as legislators and add school suspension to the list of penalties capable of

      being expunged, which we may not do. Any collateral argument that DeCola

      makes based on precedent and stare decisis is equally unfounded and without any

      merit. We hold that the trial court did not err in denying DeCola’s amended

      petition for expungement of the school suspension from his records.


[8]   Second, DeCola’s claim that the trial court erred when it did not conduct a jury

      trial fails as a matter of substance. Indiana Trial Rule 38(A) specifies that “[a]ny

      party may demand a trial by jury of any issue triable of right by a jury.”

      (Emphasis added). Historically, the only issues that were deemed triable by a


      Court of Appeals of Indiana | Opinion 18A-MI-732 | October 17, 2018          Page 3 of 5
      jury were those available at common law. Cardinal Health Ventures, Inc. v.

      Scanameo, 85 N.E.3d 637, 640 (Ind. Ct. App. 2017). The common law era

      predates modernity, and it has been the province of today’s courts to determine

      whether a particular claim would have been legal or equitable. Id. Generally,

      claims which were equitable rather than legal in nature were tried by a court

      rather than by a jury. Lewandowski v. Beverly, 420 N.E.2d 1278, 1282 (Ind. Ct.

      App. 1981). Therefore, if the issue was equitable rather than legal at common

      law, there was no right to a jury since it was the court that evaluated and

      granted relief for such claims. That standard persists today as is evidenced by

      the language in Indiana Trial Rule 38(A).


[9]   While there is no Indiana case that directly establishes expungement as an

      equitable or legal remedy, the language of Indiana’s expungement statutes

      provides sufficient clarity. In every expungement statute, the court is responsible

      for finding that expungement is an available remedy, and subsequently, the

      court is the body responsible for granting that remedy. Ind. Code §§ 35-38-9-2(e),

      -3(e), -4(e), -5(e). Thus, the General Assembly clearly established a statutory

      framework in which the court, rather than a jury, would be tasked with

      evaluating and ruling on requests for expungement. It follows that

      expungement would have been deemed an equitable rather than a legal remedy.

      Because expungement was not triable by a jury at common law, we hold that

      petitioners seeking expungement are not entitled to a jury trial. Consequently,

      DeCola’s argument that he be afforded a jury trial is without merit.




      Court of Appeals of Indiana | Opinion 18A-MI-732 | October 17, 2018        Page 4 of 5
[10]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Opinion 18A-MI-732 | October 17, 2018   Page 5 of 5
