                                                                    Sep 30 2015, 9:23 am




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
James D. Borel                                             Gregory F. Zoeller
Fort Wayne, Indiana                                        Attorney General of Indiana
                                                           Aaron T. Craft
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Matter of the Petition                         September 30, 2015
to Expunge Conviction Records                             Court of Appeals Case No.
of James D. Borel,                                        41A01-1412-MI-533
                                                          Appeal from the Johnson Superior
Appellant-Petitioner,
                                                          Court.
                                                          The Honorable Kevin M. Barton,
        v.                                                Judge.
                                                          Cause No. 41D01-1406-MI-115
State of Indiana,
Appellee-Respondent.




Barteau, Senior Judge




Court of Appeals of Indiana | Opinion 41A01-1412-MI-533 | September 30, 2015               Page 1 of 7
                                          Statement of the Case
                            1
[1]   James D. Borel appeals the trial court’s denial of his Petition to Expunge

      Conviction Records and his motion to correct error. We reverse and remand.


                                                          Issue
[2]   The dispositive issue is whether the trial court erred by denying Borel’s motion
                            2
      to correct error.


                                  Facts and Procedural History
[3]   On February 27, 1976, the State charged Borel with “First Degree Burglary”

      under Cause Number 76-25, alleging that he had broken and entered the

      dwelling of Jerome Cutwright with the intent to commit theft. Confidential

      Appendix p. 23.


[4]   On March 16, 1976, Borel and the State appeared at a change of plea and

      sentencing hearing in Cause Number 76-25. The State requested and received




      1
        Both parties identify Borel by initials in their briefs. They do not cite any authority for using initials rather
      than Borel’s full name. The chapter of the Indiana Code that governs expungement petitions, Indiana Code
      section 35-38-9-1 et seq., does not mandate the use of initials on appeal. To the contrary, a 2015 amendment
      to Indiana Code section 35-38-9-10 provides that documents filed in expungement cases are not confidential
      until and unless the court grants the petition for expungement. 2015 Ind. Acts. 1279-80. In addition, Indiana
      Administrative Rule 9(G) does not include expungement proceedings among those types of cases in which a
      party’s identity must be withheld from public access. Finally, recent decisions by the Court in appeals
      involving the denial of petitions for expungement do not refer to petitioners by their initials. See, e.g., Trout v.
      State, 28 N.E.3d 267 (Ind. Ct. App. 2015); Mallory v. State, 15 N.E.3d 112 (Ind. Ct. App. 2014); Taylor v.
      State, 7 N.E.3d 362 (Ind. Ct. App. 2014). For these reasons, we use Borel’s full name in this opinion.
      2
       Borel also argues that the trial court erred by denying his Petition to Expunge Conviction Records without
      holding a hearing. It is unnecessary to address this issue because we are reversing and remanding for an
      evidentiary hearing on other grounds.

      Court of Appeals of Indiana | Opinion 41A01-1412-MI-533 | September 30, 2015                            Page 2 of 7
      permission to amend the charging information to “Entering to Commit a

      Felony.” Id. at 25. Borel pled guilty to that offense. The State recommended

      to the trial court a sentence of one to five years executed, with “fine waived.”

      Id. The court imposed a sentence of one to five years, “Fine is waived.” Id.


[5]   On March 22, 1976, the State filed an amended information under Cause

      Number 76-25 formally charging Borel with entering to commit a felony. The

      State alleged that Borel entered the dwelling of Jerome Cutwright with intent to

      commit theft.


[6]   Borel served his sentence, was released on parole, and successfully completed

      his term of parole.


[7]   The current case began on June 24, 2014, when Borel filed a Verified Petition to

      Expunge Conviction Records, asking the trial court to expunge records related

      to his conviction for entering to commit a felony. The State filed a response

      objecting to Borel’s petition. The State claimed that Borel had failed to

      demonstrate that he “paid all fines, fees, and court costs imposed as part of the

      sentence” and asked the court to summarily deny the petition. Appellant’s

      App. p. 52. The trial court ordered Borel to provide proof that he had paid all

      fines, fees, and court costs imposed as part of the sentence, or his petition would

      be dismissed without prejudice.


[8]   Next, Borel filed a motion for more definite statement, asking the court to order

      the State to clarify its claim of nonpayment of fines, fees, and costs. Borel also

      filed a motion for expedited discovery. The trial court denied both motions.

      Court of Appeals of Indiana | Opinion 41A01-1412-MI-533 | September 30, 2015   Page 3 of 7
[9]    Borel subsequently filed a motion for summary judgment and a request to

       waive fines, fees, and costs imposed by the original sentencing court. He also

       provided an affidavit. Borel asserted in the affidavit that he had visited the trial

       court clerk’s office and they could not find any records showing that he owed

       court costs or fines in Cause Number 76-25.


[10]   On September 25, 2014, the trial court summarily denied Borel’s petition to

       expunge conviction records. The trial court determined that the original

       sentencing court lacked the authority to waive court costs, and Borel had failed

       to prove that he had paid such costs.


[11]   Borel filed a motion to correct error, requesting an evidentiary hearing on his

       petition to expunge conviction records. The trial court denied the motion to

       correct error, explaining that, according to the original docket sheet, Borel owed

       court costs of $37.00. The trial court concluded that Borel failed to prove he

       had paid that amount. This appeal followed.


                                     Discussion and Decision
[12]   Borel argues that the trial court erred by denying his petition for expungement

       and his motion to correct error. He asserts that we should review the trial

       court’s decision per our standard of review for findings of fact and conclusions

       thereon. This approach is incorrect because the trial court did not issue findings

       or conclusions in its order summarily denying Borel’s petition or its order

       denying Borel’s motion to correct error.



       Court of Appeals of Indiana | Opinion 41A01-1412-MI-533 | September 30, 2015   Page 4 of 7
[13]   The key question is whether the trial court erred by denying Borel’s motion to

       correct error. We review a trial court’s denial of a motion to correct error for an

       abuse of discretion. Ott v. State, 997 N.E.2d 1083, 1084 (Ind. Ct. App. 2013).

       An abuse of discretion occurs when the trial court’s ruling is against the logic,

       facts, and circumstances presented. Id. We do not reweigh the evidence and

       we consider conflicting evidence most favorable to the trial court’s ruling. Id.


[14]   Pursuant to Indiana Code section 35-38-9-9(b) (2014), a trial court “may

       summarily deny a petition, if the petition does not meet the requirements of

       section 8 of this chapter, or if the statements contained in the petition

       demonstrate that the petitioner is not entitled to relief.”


[15]   The trial court denied Borel’s petition for expungement and motion to correct

       error pursuant to Indiana Code section 35-38-9-8(b)(11) (2014). At the time

       Borel filed his petition, that statute stated: “The petitioner shall provide

       evidence that the petitioner has paid all fines, fees, and court costs, and satisfied
                                                                                                                 3
       any restitution obligation imposed on the person as part of the sentence.” Id.


[16]   In denying Borel’s motion to correct error, the trial court determined the

       “Docket Sheet submitted by the petitioner shows that judgment was entered for

       costs and that the court costs of $37.00 was entered in” the judgment docket.




       3
         A later amendment to the statute eliminated the provision requiring proof of payment of fines, fees, and
       court costs. See 2015 Ind. Acts 1275-76. Pursuant to other statutes governing petitions for expungement, the
       trial court is still required to determine whether all fines, fees, and court costs have been paid. See id. at 1267-
       70.

       Court of Appeals of Indiana | Opinion 41A01-1412-MI-533 | September 30, 2015                            Page 5 of 7
       Appellant’s App. p. 123. The typed entries in the docket sheet do not indicate

       that any court costs were imposed. There is a handwritten note next to one of

       the entries that consists of the following: “[illegible word, perhaps ‘costs’] 37.00

       J.D. 29 pg 123.” Appellant’s App. p. 96. The note is not signed or initialed.

       There is no indication as to who wrote the note or when it was added to the

       docket over the last thirty years.


[17]   We are mindful of our obligation to consider facts in the light most favorable to

       the trial court’s ruling and to refrain from reweighing evidence, but this

       handwritten scrawl of indeterminate origin provides little evidence that costs

       were imposed or remain due, especially where the formal, typed entries are

       silent on the matter. Furthermore, Borel provided evidence that he had asked

       the trial court clerk for documents indicating whether he still owed court costs.

       The clerk stated that it was unable to find any such documents. Presumably,

       the clerk knows his or her own records.


[18]   There is insufficient evidence that the trial court imposed court costs or that

       such court costs remain unpaid, and the trial court’s denial of Borel’s motion to

       correct error is clearly against the logic, facts, and circumstances presented. See

       O’Connor v. State, 796 N.E.2d 1230, 1235 (Ind. Ct. App. 2003) (reversing denial

       of motion to correct error where, upon appellate review of the record, it was

       determined that there was no evidence that plaintiff was advised of right to jury

       trial on habitual offender enhancement).




       Court of Appeals of Indiana | Opinion 41A01-1412-MI-533 | September 30, 2015   Page 6 of 7
                                                 Conclusion
[19]   We reverse the trial court’s summary denial of Borel’s petition and remand for

       further proceedings not inconsistent with this opinion.


[20]   Reversed and remanded.


       Bailey, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 41A01-1412-MI-533 | September 30, 2015   Page 7 of 7
