                                                                FILED
                                                           Sep 15 2016, 8:05 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Chris M. Teagle                                            Gregory F. Zoeller
Muncie, Indiana                                            Attorney General of Indiana
                                                           Henry A. Flores, Jr.
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Mindy M. Cline,                                            September 15, 2016
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           38A04-1512-XP-2221
        v.                                                 Appeal from the Jay Circuit Court
                                                           The Honorable Brian D.
State of Indiana,                                          Hutchison, Judge
Appellee-Respondent.                                       Trial Court Cause No.
                                                           38C01-1510-XP-3



Bailey, Judge.




                                     Case Summary

Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016            Page 1 of 9
[1]   Mindy Cline (“Cline”) appeals the denial of her petition for expungement,

      presenting the sole issue of whether the trial court abused its discretion. We

      reverse and remand.



                             Facts and Procedural History
[2]   In 2003, Cline was convicted of Forgery. In 2004, she was convicted of

      Dealing in Methamphetamine. On October 16, 2015, Cline filed a petition

      seeking expungement of the records of these convictions. The State did not

      oppose the petition.


[3]   The trial court conducted a hearing on November 12, 2015, at which Cline

      testified and the State presented no evidence. At the conclusion of the hearing,

      the trial court took the matter under advisement, stating:


              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.

      Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016   Page 2 of 9
      (Tr. at 12.) On November 13, 2015, the trial court denied the petition for

      expungement, “based largely on the nature of the convictions, the severity of

      the offenses, and the relatively short duration since release from

      probation/parole on the most recent convictions (approx. 5 years).” (App. at

      5.) Cline now appeals.



                                 Discussion and Decision
[4]   Indiana Code Section 35-38-9-4 permits persons convicted of certain crimes to

      have their conviction records expunged. Through the expungement statutes,

      the “legislature intended to give individuals who have been convicted of certain

      crimes a second chance” by providing an opportunity for relief from the stigma

      associated with their criminal convictions. Taylor v. State, 7 N.E.3d 362, 367

      (Ind. Ct. App. 2014). The expungement statutes are inherently remedial and, as

      such, should be liberally construed to advance the remedy for which they were

      enacted. Brown v. State, 947 N.E.2d 486, 490 (Ind. Ct. App. 2011), trans. denied.


[5]   Under Chapter 35-38-9, expungement is not available to sex or violent offenders

      or persons convicted of official misconduct, homicide offenses, human and

      sexual trafficking offenses, or sex crimes. See I.C. § 35-38-9-3(b); I.C. § 35-38-9-

      4(b); I.C. § 35-38-9-5(b). For qualifying offenses, the requirements for

      expungement generally depend on the level of offense of which the person was

      convicted. Depending on the offense level, expungement may be either

      mandatory or discretionary. Key v. State, 48 N.E.3d 333, 336 (Ind. Ct. App.

      2015).

      Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016   Page 3 of 9
[6]   Cline sought relief pursuant to Indiana Code Section 35-3-9-4, applicable to

      qualified felonies other than Class D or Level 6 felonies. Subsection (e) of that

      statute provides that the trial court may order conviction records expunged if the

      court finds by a preponderance of the evidence that: (1) the requisite period has

      elapsed (eight years from the date of conviction or three years from the

      completion of the sentence, or as shortened by prosecutorial agreement); (2) no

      charges are pending against the person; (3) applicable fines, costs, and

      restitution have been paid; and (4) the person has not been convicted of a crime

      within the previous eight years (or a shorter period with prosecutorial

      agreement) (emphasis added).


[7]   The use of the term “may” in a statute ordinarily implies a permissive condition

      and a grant of discretion. Key, 48 N.E.3d at 337. Thus, the court may, in its

      discretion, grant an unopposed petition for expungement. Id. An abuse of

      discretion occurs where the decision is clearly against the logic and effect of the

      facts and circumstances. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).


[8]   Cline argues that the trial court abused its discretion by relying upon

      circumstances that are not statutory bars to expungement, specifically, the type

      of offenses and length of time elapsed. Also, it appears that the trial court may

      have concluded that Cline had a total of eight convictions, as opposed to two. 1




      1
        The petition for expungement and the order thereon reference four counts each of Forgery and Dealing in
      Methamphetamine. Cline testified – without contradiction and corroborated by an Indiana State Police
      criminal history exhibit – that she had a single conviction of Forgery and a single conviction of Dealing in
      Methamphetamine.

      Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016                      Page 4 of 9
       According to the State, Cline is simply asking that this Court reweigh the

       evidence and invade the province of the fact-finder. However, this argument

       ignores the reality that all evidence presented to the trial court militated toward

       expungement.


[9]    Cline committed her offenses during her youth and has satisfied the statutory

       prerequisites for expungement. Beyond that, Cline has consistently been

       employed, and has 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. Cline expressed a desire to return to

       management, a prospect more feasible with record expungement. The

       prosecutor offered no evidence or argument in opposition to expungement.


[10]   Moreover, we find the trial court’s articulation of its evaluative processes to be

       particularly troubling. Undeniably, methamphetamine and other illicit drugs

       are a burden upon communities and judicial resources. That said, our

       Legislature has provided a second chance for individuals who have in the

       distant past committed drug-related crimes. Although the trial court is granted

       discretion, this does not extend to disregard of remedial measures enacted by

       our lawmakers. As previously observed, such statutes should be liberally

       construed to advance the remedy for which they were enacted. Brown, 947

       N.E.2d at 490. We conclude that the trial court abused its discretion in denying

       Cline’s petition for expungement.



       Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016   Page 5 of 9
[11]   Reversed and remanded.


       Riley, J., concurs.
       Barnes, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016   Page 6 of 9
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Mindy M. Cline,
       Appellant-Petitioner,                                      Court of Appeals Cause No.
                                                                  38A04-1512-XP-2221
               v.

       State of Indiana,
       Appellee-Respondent.




       Barnes, Judge, dissenting.


[12]   I respectfully dissent. Although the commentary from the trial court here was

       not exactly artful and was unnecessarily harsh, I believe the court was within its

       discretionary parameters in rejecting Cline’s expungement request, with one

       possible correction.


[13]   As the majority recognizes, the expungement statute for felonies above Class D

       or Level 6 provides only that a trial court “may” expunge a conviction upon

       proof of the statutory requirements; it does not mandate expungement. See Ind.

       Code § 35-38-9-4(e). Thus, whether to grant Cline’s expungement petition was

       within the trial court’s discretion. See Key, 48 N.E.3d at 337. The statute is

       silent regarding the factors a trial court may consider in deciding how to
       Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016           Page 7 of 9
       exercise its discretion when ruling on a non-mandatory expungement petition.

       I see nothing wrong in the trial court here having considered the seriousness of

       the offenses and the time period since Cline finished her probationary term

       when ruling on her petition. Additionally, the trial court had face-to-face

       interaction with Cline that we cannot have. To the extent the majority

       emphasizes reasons why the expungement petition should have been granted, I

       believe it is reweighing the evidence and substituting its judgment for the trial

       court’s. Even if the expungement could have been granted on these facts, I do

       not believe the facts compelled granting it. See Rouster v. State, 705 N.E.2d 999,

       1005 (Ind. 1999) (noting that when reviewing denial of a discretionary motion,

       fact that trial court could have granted motion does not necessarily mean court

       abused its discretion in denying motion).


[14]   However, I would send this case back to the trial court for it to clarify how

       many convictions it believed Cline had. Although Cline originally stated in her

       expungement petition that she had four convictions for Class C felony forgery

       and four convictions for Class B felony dealing in methamphetamine, the clear

       evidence presented at the expungement hearing demonstrated that she only had

       one conviction each for forgery and dealing in methamphetamine. The trial

       court’s order denying the expungement request erroneously refers to four

       convictions for each offense. I would remand this case for the trial court to




       Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016   Page 8 of 9
correct its order in that regard and, if warranted, reconsider its order denying

expungement in light of Cline having only two prior convictions, not eight. 2




2
 It is unclear from the record whether the trial court relied in part on a mistaken belief in the number of
Cline’s prior convictions when denying her expungement petition.

Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016                        Page 9 of 9
