FOR PUBLICATION
                                                             Sep 10 2013, 5:39 am




ATTORNEYS FOR APPELLANT:

GLADYS M. WHITFIELD
Indianapolis, Indiana

DEA C. LOTT
Indianapolis, Indiana




                                IN THE
                      COURT OF APPEALS OF INDIANA

H. M.,                                          )
                                                )
         Appellant-Petitioner,                  )
                                                )
                vs.                             )    No. 49A04-1304-CR-157
                                                )
STATE OF INDIANA,                               )
                                                )
         Appellee-Respondent.                   )


                    APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Anne M. Flannelly, Judge Pro Tempore
                 Cause Nos. 49G04-0201-MC-020533; 49G04-0003-MC-40735;
                    49G04-9405-MC-52823; and 49G04-9312-MC-162941



                                      September 10, 2013
                                 OPINION - FOR PUBLICATION

RILEY, Judge
                                  STATEMENT OF THE CASE

        Appellant-Petitioner, H.M., appeals the trial court’s summary denial of his four

petitions to restrict the disclosure of arrest records pursuant to Ind. Code § 35-38-5-5.5.1

        We affirm.

                                                ISSUES

        H.M. raises two issues which we restate as follows:

        (1) Whether the trial court properly denied H.M’s petitions pursuant to I.C. § 35-

38-5-5.5; and

        (2) Whether the trial court properly denied relief to H.M. pursuant to Admin. R.

9(G)(1)(g).

                           FACTS AND PROCEDURAL HISTORY

        On February 15, 2013, H.M. filed four petitions to restrict the disclosure of his

records related to four separate arrests to a noncriminal justice organization or an

individual. Each of these arrests occurred in Marion County, Indiana and none resulted

in a conviction. Specifically, in December of 1993, police officers arrested H.M. for

battery. The State did not file any charges. In May of 1999, H.M. was arrested for public

intoxication, disorderly conduct, and criminal trespass.                The State declined to file

charges. In March of 2000, H.M. was arrested for operating a vehicle while intoxicated



1
  We note that this statute has been repealed by Public Law 194-2013, effective July 1, 2013, and replaced
by the current I.C. § 35-38-9 (2013); however, as H.M.’s petition was filed on February 15, 2013 and the
trial court’s summary denial occurred on March 14, 2013, such legislative action has no effect in this
case.


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and driving while suspended. The State did not bring any charges. Lastly, in January of

2002, a police officer arrested H.M. for theft and receiving stolen property. The State did

not file a charging Information.

       On March 7, 2013, the trial court conducted a hearing on H.M.’s petitions.

Subsequently, on March 14, 2013, the trial court summarily denied his petitions in a

single Order, finding that “I.C. § 35-38-5-5.5 applies to those cases in which a person is

charged with a crime[.]” (Appellant’s App. p. 15).

       H.M. now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                           I. Indiana Code section 35-38-5-5.5

       H.M. contends that the trial court erred when it summarily denied his petitions,

filed pursuant to I.C. § 35-38-5-5.5, to restrict the disclosure of records related to four

arrests.

       Whether H.M. can restrict the disclosure of his arrest records is a question of

statutory interpretation and subject to a de novo review. See Pinnacle Properties Dev.

Group, LLC. v. City of Jeffersonville, 893 N.E.2d 726, 727 (Ind. 2008).           In such

interpretation, the express language of the statute and rules of statutory interpretation

apply. Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008), trans. denied. We

will examine the statute as a whole and avoid excessive reliance on a strict literal

meaning or the selective reading of words. Id. Where the language of the statute is clear

and unambiguous, there is nothing to construe. Id. However, where the language is

susceptible to more than one reasonable interpretation, the statute must be construed to


                                            3
give effect to the legislature’s intent. Id. The legislature is presumed to have intended

the language used in the statute to be applied logically and not to bring about an absurd or

unjust result. Id. Thus, we must keep in mind the objective and purpose of the law as

well as the effect and repercussions of such a construction. Id.

       Indiana Code section 35-38-5-5.5 restricts the disclosure of records and states, in

pertinent part, that:

       (a) If a person charged with a crime:
               (1) is not prosecuted or if charges against the person are dismissed;
               (2) is acquitted of all criminal charges; or
               (3) is convicted of the crime and the conviction is subsequently
               vacated;
       the person may petition a court to restrict disclosure of the records related
       to the arrest to a noncriminal justice organization or an individual.

Focusing on the statutory requirement that a person has to be “charged” with a crime,

H.M. contends that the arresting officers charged him with a specific crime in each case

and therefore, as the State decided not to prosecute, he falls within the parameters of the

statute and access to his arrest records should be restricted.

       We agree with H.M. that “charge” or “to charge” is not defined by our criminal

statutes. Undefined words in a statute are given their plain, ordinary, and usual meaning.

600 Land, Inc. v. Metropolitan Bd. of Zoning Appeals of Marion Co., 889 N.E.2d 305,

309 (Ind. 2008). In determining the plain and ordinary meaning of a term, courts may

use English language dictionaries as well as consider the relationship with other words

and phrases. Id. Charge is defined as “a formal accusation of an offense as a preliminary

step to prosecution.” BLACK’S LAW DICTIONARY 248 (8th ed. 2004). “Any crime may be

charged by indictment or information” by the prosecuting attorney. I.C. § 35-34-1-1(a).


                                              4
Whereas a law enforcement officer may arrest a person, a “criminal prosecution may be

commenced only by the filing of an information or indictment.” I.C. § 35-33-1-1;

Epperson v. State, 530 N.E.2d 743, 746 (Ind. Ct. App. 1988). In Wurster v. State, 715

N.E.2d 341, 344 (Ind. 1999), reh’g denied, our supreme court noted:

        In Indiana, the voters of each county elect a prosecutor every four years.
        Once elected, these officials acquire the awesome power to bring any
        citizen into court to face criminal charges. This may be done by
        information or by indictment, subject only to the procedural checks built
        into each process. If an information is used, the prosecutor alone bears
        responsibility for the decision to charge the defendant. If the prosecutor
        chooses to proceed via grand jury indictment, the grand jury shares that
        responsibility.

        As such, it is clear that a person is only charged with a crime when the prosecuting

attorney files an information or indictment. In the case before us, H.M. was arrested but

the State never filed its Information. Therefore, H.M. was not “charged” as interpreted in

I.C. § 35-38-5-5.5 and is thus not eligible to restrict the disclosure of his arrest records. 2

We conclude that the trial court properly denied H.M.’s petitions.

                                 II. Administrative Rule 9(G)(1)(g)

        Next, H.M. contends that the trial court also improperly denied relief based on

Administrative Rule 9(G)(1)(g), which provides, in pertinent part:

        Rule 9. Access to court records

        ***

        (G) Court records excluded from public access.


2
  We note, however, that the revised statute with respect to the sealing of arrest records specifically
includes the situation of “a person who has been arrested if: (1) the arrest did not result in a conviction or
juvenile adjudication[.]” I.C. § 35-38-9-1.


                                                      5
       (1) Case records – The following information in case records is excluded
       from public access and is confidential:

       ***

       (g) All orders of expungement entered in criminal or juvenile proceedings,
       orders to restrict access to criminal history information pursuant to Ind.
       Code § 35-38-5-5.5 or Ind. Code § 35-38-8-5 and records excluded from
       public access by such orders, and information related to infractions that is
       excluded from public access pursuant to Ind. Code § 34-28-5-15 or Ind.
       Code § 34-28-5-16.

As we have concluded that H.M. is not eligible to have his arrest records restricted

pursuant to I.C. § 35-38-5-5.5, he is also not entitled to relief based on Admin. R.

9(G)(1)(g). Therefore, we affirm the trial court’s denial of H.M.’s petitions.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court properly denied H.M’s

petitions pursuant to I.C. § 35-38-5-5.5 and Admin. R. 9(G)(1)(g).

       Affirmed.

KIRSCH, J. and ROBB, C. J. concur




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