                                                                          Mar 09 2016, 8:34 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                        Gregory F. Zoeller
Nappanee, Indiana                                          Attorney General of Indiana

                                                           Andrea E. Rahman
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

David Lee Marshall,                                        March 9, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           20A03-1507-MI-973
        v.                                                 Appeal from the Elkhart Superior
                                                           Court
State of Indiana,                                          The Honorable Evan S. Roberts,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           20D01-1501-MI-004



Bailey, Judge.




Court of Appeals of Indiana | Opinion 20A03-1507-MI-973 | March 9, 2016                          Page 1 of 8
                                           Case Summary
[1]   David Lee Marshall (“Marshall”) appeals the trial court’s order denying his

      petition for expungement of Class D felony and misdemeanor records. He

      presents the sole issue of whether he was entitled to expungement because he

      had no subsequent criminal convictions, despite his admission, as a

      requirement of a pretrial diversion program, to committing another crime. We

      affirm.



                             Facts and Procedural History
[2]   In 1992, Marshall was convicted of Criminal Recklessness and Operating While

      Intoxicated, as misdemeanors. In 1995, he was convicted of Operating While

      Intoxicated, as a misdemeanor. In 1999, he was convicted of Operating While

      Intoxicated, as a Class D felony. In 2002, he was convicted of misdemeanor

      battery and he pled guilty to Public Intoxication, a Class B misdemeanor. In

      2004, he was found guilty of misdemeanor Battery. In 2005, he was again

      convicted of misdemeanor Operating While Intoxicated and Public

      Intoxication. In 2006, he pled guilty to a second felony, Operating While

      Intoxicated.


[3]   On April 26, 2013, Marshall was charged with Operating a Vehicle as a

      Habitual Traffic Violator, a Class D felony. On September 4, 2013, the State

      added an additional count: Driving While Suspended, a Class A misdemeanor.

      On September 13, 2013, Marshall signed a pre-trial diversion agreement


      Court of Appeals of Indiana | Opinion 20A03-1507-MI-973 | March 9, 2016   Page 2 of 8
      admitting that he had committed the offense of Driving While Suspended. The

      charges were dismissed upon Marshall’s completion of the pre-trial diversion

      program.


[4]   On January 9, 2015, Marshall filed his “Verified Petition for Expungement of

      Records of Misdemeanor Convictions Under I.C. 35-38-9-2 and Minor Class D

      or Level 6 felony Convictions under I.C. 35-38-9-3.” (App. at 44.) The State

      opposed the petition, contending that Marshall had not remained crime-free

      during the requisite period of time for expungement.


[5]   On May 14, 2015, the trial court conducted a hearing on the expungement

      petition. The petition was denied on June 30, 2015, the trial court having

      concluded that Marshall had committed a crime in 2013. This appeal ensued.



                                 Discussion and Decision
[6]   Marshall argues that the trial court erroneously denied his petition for

      expungement because he met the statutory requirements under Indiana Code

      Sections 35-38-9-3 (Class D or Level 6 felony) and 35-38-9-2 (misdemeanor)

      and he is entitled to expungement upon satisfaction of the statutory

      requirements. The State responds that, despite the lack of a criminal

      conviction, the trial court properly considered the mandate of Indiana Code

      Section 35-38-9-9(d), requiring the petitioner to prove that the facts alleged in

      the verified petition were true, among them an affirmation that he had “not




      Court of Appeals of Indiana | Opinion 20A03-1507-MI-973 | March 9, 2016    Page 3 of 8
      committed another crime within the period required for expungement.”1 I.C. §

      35-38-9-8(b)(6).


[7]   The issue of whether Marshall’s admission to committing a crime precludes

      expungement presents a question of statutory interpretation. We are thus

      presented with a question of law, which is reviewed de novo. J.B. v. State, 27

      N.E.3d 336, 338 (Ind. Ct. App. 2015). If the statute is clear and unambiguous,

      we give words their plain, ordinary, and usual meanings. Id. If, however, the

      statute is susceptible to multiple interpretations, it is deemed ambiguous and

      open to judicial construction. Id. In construing a statute, we presume that the

      General Assembly intended its language to be applied logically and so as not to

      cause an unjust or absurd result. Id. We consider the statute as a whole and

      attempt to harmonize the provisions. Id. In so doing, we read sections of an act

      together to prevent a part from being rendered meaningless. Id. We may

      additionally look to the subject matter of the act and its objectives. Id.


[8]   At the time Marshall filed his petition,2 Indiana’s expungement law provided, in

      part, that “[n]ot earlier than eight (8) years after the date of conviction,” a




      1
        The petitioner was further required to allege that “no criminal investigation” was pending. I.C. § 35-38-9-8-
      (b)(5).
      2
        At all times, we refer to and apply the version in effect at the time Marshall’s petition was filed, January 9,
      2015. See Trout v. State, 28 N.E.3d 267, 269 n.2 (Ind. Ct. App. 2015) (citing Alvey v. State, 15 N.E.3d 72, 74
      (Ind. Ct. App. 2014) for the rule that the version of the expungement statute in effect when the petition is
      filed is controlling); Wall v. Plummer, 13 N.E.3d 420, 422 n.2 (Ind. Ct. App. 2014) (applying the version in
      effect at the time the petition was filed).

      Court of Appeals of Indiana | Opinion 20A03-1507-MI-973 | March 9, 2016                                Page 4 of 8
       person convicted of a Class D felony or Level 6 felony could 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 Class D or Level 6 felony
                      conviction.


       I.C. § 35-38-9-3(c).


[9]    Similarly, Indiana Code Section 35-38-9-2(b) provided that, “[n]ot earlier than

       five (5) years after the date of conviction,” a person convicted of a misdemeanor

       could seek expungement of all conviction records.


[10]   When the petitioner sought to have Class D or Level 6 felony records

       expunged, he or she was required to establish, by a preponderance of the

       evidence:


               (1) the period required by this section has elapsed;


               (2) no charges are pending against the person;




       Court of Appeals of Indiana | Opinion 20A03-1507-MI-973 | March 9, 2016      Page 5 of 8
               (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)[.]


       I.C. § 35-38-9-3(e). A petitioner seeking to have misdemeanor records

       expunged had a like burden of proof, except that the period of time without a

       conviction was five years. I.C. § 35-38-9-2(d).


[11]   The felony and misdemeanor expungement statutes directed that the trial court

       “shall” order the conviction records expunged if the trial court found that the

       requisite burden of proof had been satisfied. I.C. §§ 35-38-9-3(d), 35-38-9-2(d).

       The use of the word “shall” is construed as mandatory language, that which

       creates a statutory right to a particular outcome after certain conditions are met.

       Taylor v. State, 7 N.E.3d 362, 365 (Ind. Ct. App. 2014). There is no dispute that

       Marshall has shown the requisite lapse of time, the absence of pending charges,

       the satisfaction of obligations, and the lack of a new criminal conviction in the

       relevant time frame. Thus, in isolation, Indiana Code Sections 35-38-9-3(d) and

       35-38-9-2(d) would require expungement.


[12]   However, we consider the expungement statutes as a whole. J.B., 27 N.E.3d at

       338. We may not simply delete those provision that required Marshall to allege

       and then prove by a preponderance of the evidence that he had not committed

       another crime. Marshall’s mere allegation that he had not committed another
       Court of Appeals of Indiana | Opinion 20A03-1507-MI-973 | March 9, 2016      Page 6 of 8
       crime does not satisfy his burden. Although Marshall has not been convicted of

       a new crime, he has, by his own admission in diversionary proceedings,

       committed a new crime.


[13]   Although the expungement statutes in some instances refer to a conviction and

       in another instance refer to commission of crime, the overall objective is clear:

       our legislature intended to provide assistance to those who remained law-

       abiding. Cf. Taylor, which, although it did not involve resolution of conflicting

       statutory language as in the instant case, discussed the overall public policy of

       the expungement statutes:

               The legislature 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 completed the requirements
               established by the trial court and has since been a law-abiding citizen.


       Taylor, 7 N.E.3d at 367 (emphasis added). Similarly, in Alvey v. State, 10

       N.E.3d 1031, 1034 (Ind. Ct. App. 2014), wherein the petitioner had admitted to

       probation violations, the court opined that the intent of the General Assembly

       “was to allow those persons who had successfully completed their sentences

       without incident to petition the court after the passage of a certain amount of

       time … to expunge the records of their conviction.”


[14]   Expunging records where one has admitted to engaging in criminal activity

       does not further the policy objective of assistance to one who has paid his

       societal dues without incident. The trial court could properly find, based upon


       Court of Appeals of Indiana | Opinion 20A03-1507-MI-973 | March 9, 2016        Page 7 of 8
       Marshall’s own admission, that he had committed a crime in the relevant time

       period and was not entitled to the requested relief.



                                                Conclusion
[15]   The trial court did not err in denying Marshall’s petition to have the records

       relating to his felony and misdemeanor convictions expunged.


[16]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




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