                                                                                     FILED
                                                                                 Mar 05 2018, 9:35 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Scott L. Barnhart                                         Curtis T. Hill, Jr.
      Brooke Smith                                              Attorney General of Indiana
      Keffer Barnhart LLP
      Indianapolis, Indiana                                     Henry A. Flores, Jr.
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In Re: The Petition for                                   March 5, 2018
      Expungement of the Conviction                             Court of Appeals Case No.
      Records of:                                               02A05-1710-XP-2262
      B.S.,                                                     Appeal from the Allen Superior
                                                                Court
      Appellant-Petitioner,
                                                                The Honorable Frances C. Gull,
              v.                                                Judge
                                                                The Honorable Jason Custer,
      State of Indiana,                                         Magistrate

      Appellee-Respondent                                       Trial Court Cause No.
                                                                02D05-1704-XP-152



      May, Judge.


[1]   B.S. appeals the partial denial of his petition for expungement. Pursuant to

      Indiana Code section 35-38-9-1, the trial court granted expungement of the

      records from the criminal cause number under which B.S. was convicted, but

      Court of Appeals of Indiana | Opinion 02A05-1710-XP-2262 | March 5, 2018                           Page 1 of 9
      the court denied B.S.’s request to expunge all the records from the post-

      conviction cause number in which B.S.’s underlying conviction was vacated.

      As the post-conviction relief records should also have been expunged under

      Indiana Code section 35-38-9-1, we reverse the trial court’s denial of that

      portion of B.S.’s petition and remand with instructions.



                              Facts and Procedural History
[2]   On April 24, 2001, B.S. was convicted of a Class A misdemeanor. Thereafter,

      B.S. filed a petition for post-conviction relief (“PCR”). 1 The court granted his

      petition on August 30, 2010:


               IT IS THEREFORE ORDERED, ADJUDGED AND
               DECREED that the judgment and conviction entered against the
               Defendant, [B.S.], on [April 24, 2001]; for the offense of Class
               [A] MISDEMEANOR, [ ], shall be set aside and vacated.


               IT IS FURTHER ORDERED, ADJUDGED AND DECREED
               that the Allen Clerk of Court shall forthwith expunge from the
               Defendant’s arrest record the judgment and conviction referred to
               herein above in Cause No. [ ].


      (Confidential. App. Vol. II at 23). 2




      1
       The record before us contains no indication of the grounds on which B.S. challenged his conviction or on
      which the trial court granted of his petition for post-conviction relief.
      2
       As noted by the State, this order appears to include scrivener’s errors pertaining to the date and Class of
      B.S.’s conviction.

      Court of Appeals of Indiana | Opinion 02A05-1710-XP-2262 | March 5, 2018                             Page 2 of 9
[3]   On April 27, 2017, B.S. filed a petition for expungement of all records related to

      his Class A misdemeanor conviction. The State did not object to his petition.

      On July 5, 2017, B.S. amended his petition to request the records from his PCR

      case also be sealed. On September 7, 2017, the trial court granted B.S.’s

      petition as to the records from the cause number of his conviction, but denied

      expungement of the PCR records because “such causes are not covered under

      Indiana Code § 35-38-9 et seq.” (Id. at 29.)



                                 Discussion and Decision
[4]   B.S. contends the trial court erred by not expunging his PCR records. As the

      trial court found expungement of his PCR records was not permitted under the

      expungement statutes, the issue we face is one of statutory interpretation. We

      have not yet examined the most recently-enacted expungement statute, making

      this an issue of first impression. See Ind. Code § 35-38-9 et seq. (2015) (current

      expungement statutes enacted July 1, 2013 and revised effective July 1, 2015).


[5]   Construction of a statute is a question of law, which we review de novo. Day v.

      State, 57 N.E.3d 809, 811 (Ind. 2016).


              The first step in interpreting a statute is to determine whether the
              Legislature has spoken clearly and unambiguously on the point
              in question. When a statute is clear and unambiguous, we need
              not apply any rules of construction other than to require that
              words and phrases be taken in their plain, ordinary, and usual
              sense. Clear and unambiguous statutes leave no room for
              judicial construction. However when a statute is susceptible to
              more than one interpretation it is deemed ambiguous and thus

      Court of Appeals of Indiana | Opinion 02A05-1710-XP-2262 | March 5, 2018       Page 3 of 9
              open to judicial construction. And when faced with an
              ambiguous statute, other well-established rules of statutory
              construction are applicable. One such rule is that our primary
              goal of statutory construction is to determine, give effect to, and
              implement the intent of the Legislature. To effectuate legislative
              intent, we read the sections of an act together in order that no
              part is rendered meaningless if it can be harmonized with the
              remainder of the statute. We also examine the statute as a
              whole. And we do not presume that the Legislature intended
              language used in a statute to be applied illogically or to bring
              about an unjust or absurd result.


      City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007) (internal citations

      omitted).


[6]   The trial court’s order found B.S.’s “conviction records . . . shall be expunged in

      accordance with I.C. 35-38-9-1.” (Conf. App. Vol. II at 28-29.) Expungement

      under Indiana Code section 35-38-9-1


              applies only to a person who has been arrested, charged with an
              offense, or alleged to be a delinquent child, if:


              (1) the arrest, criminal charge, or juvenile delinquency allegation:


                       (A) did not result in a conviction or juvenile adjudication;
                       or


                       (B) resulted in a conviction or juvenile adjudication and
                       the conviction or adjudication was vacated on appeal . . .


      Additionally, for Indiana Code section 35-38-9-1 to apply, the applicant must

      fulfill certain requirements as to timing and placement of the filing together

      Court of Appeals of Indiana | Opinion 02A05-1710-XP-2262 | March 5, 2018        Page 4 of 9
      with other identifying information. The State concedes that B.S. fulfilled these

      requirements; thus, we move to addressing the relief to which he is entitled. 3


[7]   If relief is granted pursuant to Indiana Code section 35-38-9-1, then:


               (1) no information concerning the arrest, criminal charges,
               juvenile delinquency allegation, vacated conviction, or vacated
               juvenile delinquency adjudication may be placed or retained in
               any state central repository for criminal history information or in
               any other alphabetically arranged criminal history information
               system maintained by a local, regional, or statewide law
               enforcement agency;


               (2) the clerk of the supreme court shall seal or redact any records
               in the clerk’s possession that relate to the arrest, criminal charges,
               juvenile delinquency allegation, vacated conviction, or vacated
               juvenile delinquency adjudication;


               (3) the records of:


                        (A) the sentencing court;


                        (B) a juvenile court;




      3
        The State also agrees B.S.’s PCR records should have been expunged, but the State so concedes under
      Indiana Code section 35-38-9-2, which states the “records contained in [various files] that relate to the
      person’s misdemeanor conviction” will be expunged. However, the relief provided if an expungement is
      granted under Indiana Code sections 35-38-9-2 & 3 is limited. For example, after expungement under those
      sections, records still may be released with a court order or to a law enforcement officer acting in his or her
      official duty. Ind. Code § 35-38-9-6(a)(1) (2016). Such exceptions do not exist for records expunged under
      Indiana Code section 35-38-9-1. As B.S. qualified for expungement under section 1, which provides more
      complete relief, we determine the scope of the relief granted by section 1.

      Court of Appeals of Indiana | Opinion 02A05-1710-XP-2262 | March 5, 2018                             Page 5 of 9
                       (C) a court of appeals; and


                       (D) the supreme court;


              concerning the person shall be redacted or permanently sealed;
              and


              (4) with respect to the records of a person who is named as an
              appellant or an appellee in an opinion or memorandum decision
              by the supreme court or the court of appeals, the court shall:


                       (A) redact the opinion or memorandum decision as it
                       appears on the computer gateway administered by the
                       office of technology so that it does not include the
                       petitioner’s name (in the same manner that opinions
                       involving juveniles are redacted); and


                       (B) provide a redacted copy of the opinion to any publisher
                       or organization to whom the opinion or memorandum
                       decision is provided after the date of the order of
                       expungement.


              The supreme court and the court of appeals are not required to
              redact, destroy, or otherwise dispose of any existing copy of an
              opinion or memorandum decision that includes the petitioner’s
              name.


      Ind. Code § 35-38-9-1(f) (2015).


[8]   Herein, the trial court found the PCR records could not be expunged because

      “such causes are not covered under Indiana Code § 35-38-9 et seq.”

      (Confidential App. Vol. II at 29.) However, Indiana Code section 35-38-9-1


      Court of Appeals of Indiana | Opinion 02A05-1710-XP-2262 | March 5, 2018   Page 6 of 9
      states “no information” regarding expunged cases shall be maintained in various

      state information systems, I.C. § 35-38-9-1(f) (emphasis added), and “any

      records” shall be sealed or redacted. Id. (emphasis added). B.S. argues that, as

      the final result of a vacation of a conviction from a PCR case is the same as the

      final result of a vacation from a direct appeal, the trial court should have

      expunged his PCR case and sealed those records accordingly. The PCR

      proceedings, although under a separate cause number, necessarily include

      information and records of the conviction from which a petitioner is seeking

      expungement relief. Thus, we must determine the scope of the legislature’s

      intent.


[9]   Three years ago, our court was asked to determine the scope of relief the

      General Assembly intended to grant under Indiana Code section 35-38-9-2.

      J.B. v. State, 558 N.E.3d 336 (Ind. Ct. App. 2015). J.B. requested the

      expungement of a dismissed case, but the trial court denied the request. After

      reviewing the intent behind the statute, which we said was to allow individuals

      who qualify to escape the stigma of a criminal conviction, we held that to not

      seal the records of the dismissed case would frustrate the intent of the General

      Assembly because J.B.’s conviction was still accessible. Id. at 340. Thus, we

      held, under Indiana Code section 35-38-9-2, the phrase “any records

      maintained by the sentencing court, juvenile court, or appellate court” included

      the records of dismissed cases. Id.; see also State v. Bergman, 558 N.E.2d 1111,

      1112 (Ind. Ct. App. 1990) (expungement of conviction required after Bergman

      received a post-conviction gubernatorial pardon because the intent behind the


      Court of Appeals of Indiana | Opinion 02A05-1710-XP-2262 | March 5, 2018   Page 7 of 9
       pardon was to “enhance [Bergman’s] career opportunities and to clear his name”)

       (emphasis in original).


[10]   Here, the intent and the policy underlying Indiana Code section 35-38-9-1 are

       the same as the intent and policy analyzed in J.B., i.e., expungement allows an

       individual, who satisfies certain criteria, to escape the stigma of a criminal

       conviction by “sealing off the paper trail establishing that there ever was a

       conviction.” J.B., 558 N.E.3d at 340. B.S., because he qualifies for

       expungement under the statute, is able to escape the stigma of his now-

       overturned criminal conviction; however, in order to do so, all records

       pertaining to that conviction must be sealed. This includes, by necessity, the

       PCR case wherein that criminal conviction was vacated. To accept the trial

       court’s contention PCR records are not included in the expungement statute

       would thwart the intent of the legislature. See id. (if dismissed cases not

       included in expungement, the expungement is “meaningless”) Accordingly, we

       must reverse the trial court’s partial denial of B.S. petition for expungement and

       remand for the court to enter an order expunging the records from B.S.’s

       underlying criminal cause number and from his post-conviction cause number

       in accordance with Indiana Code section 35-38-9-1.


                                                 Conclusion
[11]   Although the expungement statute does not specifically mention PCR records,

       the intent behind the statute is to allow the petitioner to return to his or her

       former state without stigma. Therefore, we reverse the trial court’s partial


       Court of Appeals of Indiana | Opinion 02A05-1710-XP-2262 | March 5, 2018      Page 8 of 9
       denial of B.S.’s petition and remand for the trial court to issue a new order in

       accordance with this opinion.


[12]   Reversed in part and remanded with instructions.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 02A05-1710-XP-2262 | March 5, 2018   Page 9 of 9
