MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                  Oct 17 2018, 8:20 am

court except for the purpose of establishing                                      CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jonathon M. Berbari                                      Curtis T. Hill, Jr.
Jay Chaudhary                                            Attorney General of Indiana
Nick Parker
                                                         Justin F. Roebel
Indiana Legal Services, Inc.                             Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D.B.,                                                    October 17, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-XP-352
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Respondent                                      Judge
                                                         The Honorable Stanley E. Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1610-XP-37137



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018                     Page 1 of 6
[1]   D.B. appeals the trial court’s denial of her petition to expunge her Class C

      felony conviction for battery resulting in serious bodily injury. Finding no

      error, we affirm.


[2]   In 1991, D.B. engaged in an altercation with her supervisor at work; she hit her

      supervisor with her fist and caused an injury. In 1992, she was convicted of

      Class C felony battery resulting in serious bodily injury. D.B. completed the

      imposed sentence.


[3]   On October 18, 2016, D.B. filed a petition to expunge her Class C felony

      conviction under Indiana Code section 35-38-9-5.1 On November 7, 2016, the

      State objected to the expungement of this conviction, stating that D.B. did not

      have the written consent of the prosecutor as required by Indiana Code section

      35-38-9-5(e)(5).


[4]   An evidentiary hearing took place on November 17, 2017. D.B. explained

      what occurred during her confrontation with her supervisor; that she was later

      diagnosed with mental health issues for which she receives treatment; that she

      has learned how to address problems without resorting to physical altercations;

      and that she is gainfully employed. A care coordinator from the health facility

      from which D.B. receives treatment testified that D.B. is compliant with her

      treatment sessions and has rehabilitated herself. At the end of the hearing, the




      1
        D.B. also petitioned to expunge two other convictions. The trial court granted those expungements and
      they are not at issue here.

      Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018                 Page 2 of 6
      State indicated that if it did not file a written response within thirty days, then

      the trial court should consider the State to have provided the statutory consent.

      The State did not file any written indication of consent.


[5]   On January 29, 2018, the trial court denied D.B.’s petition to expunge this

      conviction, noting that “[a] review of the file shows the victim of the offense

      suffered a ruptured spleen which required surgery.” Appellant’s App. Vol. II p.

      13.


[6]   D.B.’s sole argument on appeal is that the trial court erred by denying her

      petition to expunge her conviction for Class C felony battery resulting in serious

      bodily injury. We reverse a lower court’s ruling denying a petition to expunge

      only where the decision is clearly against the logic and effect of the facts and

      circumstances before it. Cline v. State, 61 N.E.3d 360, 362 (Ind. Ct. App. 2016).


[7]   Indiana Code section 35-38-9-5 governs the expungement of conviction records

      for a person convicted of a felony that resulted in serious bodily injury to

      another person. The statute provides that:


              (e) If the court finds by a preponderance of the evidence that:


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


                       (2) no charges are pending against the person;


                       (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;

      Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018   Page 3 of 6
                       (4) the person has not been convicted of a crime within the
                       previous ten (10) 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));
                       and


                       (5) the prosecuting attorney has consented in writing to the
                       expungement of the person's criminal records;


              the court may order the conviction records . . . marked as
              expunged . . . .


      Ind. Code § 35-38-9-5(e) (emphasis added). The use of the term “may” in a

      statute ordinarily implies a permissive condition and a grant of discretion.

      Cline, 61 N.E.3d at 362. Therefore, a court may, in its discretion, grant an

      unopposed petition for expungement. Id.


[8]   As D.B. points out, the statute authorizes expungement for people who

      committed felonies resulting in serious bodily injury. D.B. argues that the trial

      court misconstrued the statute and disregarded the legislature’s intent that these

      convictions could be expunged when the trial court denied D.B.’s petition

      because she had committed a felony that resulted in serious bodily injury. In

      other words, D.B. argues that the trial court erred by relying upon a

      circumstance that is not a statutory bar to expungement.


[9]   D.B.’s argument overlooks the statute’s use of the word “may.” The statute

      does not require a trial court to grant a petition for expungement when the

      requirements of subsection 5(e) are met; instead, it gives the trial court


      Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018   Page 4 of 6
       discretion to do so. Here, the trial court did not categorically deny D.B.’s

       petition for expungement simply because she had committed a felony that

       resulted in serious bodily injury. Rather, the trial court considered the

       seriousness of D.B.’s offense and exercised its discretion, determining that

       because the victim of D.B.’s crime “suffered a ruptured spleen which required

       surgery,” appellant’s app. vol. II p. 13, D.B.’s petition to expunge this

       conviction should be denied.


[10]   D.B. argues that Cline should govern the outcome of the instant case. In that

       case, Cline had two felony convictions, one for forgery and one for dealing in

       methamphetamine, that she petitioned for expungement. Since those

       convictions, Cline had generally been successful in life, maintaining

       employment and obtaining a degree, and did not commit any crimes between

       the time of those convictions and her petition to expunge them. Cline, 61

       N.E.3d at 362. D.B.’s case is distinguishable from Cline, however, because

       following her Class C felony conviction, D.B. was convicted of misdemeanor

       possession of marijuana.2 Appellant’s App. Vol. II p. 16. In other words,

       whereas Cline was able to stay out of legal trouble between the time of her

       felony convictions and petition for expungement, D.B. was not, and her

       “misdemeanor distinguishes [her] case from Cline.” W.R. v. State, 87 N.E.3d




       2
        D.B. was convicted of this misdemeanor on January 3, 2006, more than ten years before she filed her
       petition to expunge her Class C felony conviction.

       Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018                 Page 5 of 6
       30, 32 (Ind. Ct. App. 2017). In sum, the trial court did not err by denying

       D.B.’s petition to expunge her Class C felony conviction.


[11]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018   Page 6 of 6
