                                                                            FILED
                                                                        Feb 19 2020, 8:50 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Brian J. Allen                                             Curtis T. Hill, Jr.
Sunman, Indiana                                            Attorney General of Indiana
                                                           Lauren A. Jacobsen
                                                           Deputy Attorney General
ATTORNEY FOR AMICUS CURIAE
                                                           Indianapolis, Indiana
INDIANA UNIVERSITY ROBERT H.
MCKINNEY SCHOOL OF LAW
CIVIL PRACTICE CLINIC
Carrie A. Hagan
Director, Civil Practice Clinic
Indianapolis, Indiana
Sherell Scott
Elizabeth Whitaker
Grace Dillow
Haylie McCracken
Katherine Bender
Natalie Gaynier
Certified Legal Interns


                                            IN THE
    COURT OF APPEALS OF INDIANA

Brian J. Allen,                                            February 19, 2020
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           19A-XP-1013
        v.                                                 Appeal from the Dearborn Superior
                                                           Court
State of Indiana,                                          The Honorable James D. Humphrey,
Appellee-Respondent.                                       Special Judge
                                                           Trial Court Cause No.
                                                           15D01-1811-XP-44


Court of Appeals of Indiana | Opinion 19A-XP-1013 | February 19, 2020                           Page 1 of 8
      Bailey, Judge.



                                               Case Summary
[1]   Brian J. Allen (“Allen”) appeals the trial court’s denial of his request for

      expungement of his criminal record pursuant to Indiana Code Section 35-38-9-

      4. The only issue he raises on appeal is whether the trial court erred when it

      denied his request.


[2]   We reverse.



                                Facts and Procedural History
[3]   On November 5, 2018, Allen filed a petition in which he sought expungement

      of a conviction for conspiracy to commit burglary, as a Class B felony,1 that had

      resulted from Allen’s conspiracy with three friends to burglarize the home of

      Larry and Judith Pohlgeers in 2002. Allen was nineteen years old at the time.

      One of his three friends “scoped out” the Pohlgeers’s home on August 4, 2002.

      App. at 20. The next day the four men drove in Allen’s car from Harrison,

      Ohio, to West Harrison, Indiana, in order to commit the burglary. They

      brought along a lead pipe wrapped in electrical tape. When they arrived at the

      Pohlgeers’s home, Allen and another man waited outside the home as

      “lookouts,” id. at 20, while the two other men entered the house. The men who




      1
          Ind. Code § 35-43-2-1(1)(B)(i) (2003); I.C. § 35-41-5-2.


      Court of Appeals of Indiana | Opinion 19A-XP-1013 | February 19, 2020          Page 2 of 8
      entered the house hit Larry Pohlgeers on the head repeatedly with the lead pipe,

      and also hit Judith Pohlgeers with the pipe.


[4]   The State initially charged Allen with six counts: Count I: attempted robbery,

      as a Class A felony;2 Count II: conspiracy to commit robbery, as a Class A

      felony;3 Count III: burglary, as a Class A felony;4 Count IV: conspiracy to

      commit burglary, as a Class A felony;5 Count V: aggravated battery, as a Class

      B felony;6 and Count VI: battery with a deadly weapon, as a Class C felony.7

      As a result of plea negotiations, the State added a seventh count, i.e., Class B

      felony conspiracy to commit burglary, and Allen pled guilty to that charge on

      December 19, 2003. The other six counts against Allen were dismissed as part

      of the plea agreement. Allen was sentenced to sixteen years with eight years

      suspended for his Class B felony conviction, and his sentence was later

      modified to probation.


[5]   Allen served thirty-four months of incarceration and was placed on probation

      on July 15, 2005. Allen successfully completed probation and was released

      from it on October 9, 2015. On November 5, 2018, Allen filed a petition




      2
          I.C. § 35-42-5-1 (2003); I.C. § 35-41-5-1; I.C. § 35-41-2-4.
      3
          I.C. § 35-42-5-1; I.C. § 35-41-5-2.
      4
          I.C. § 35-43-2-1(2); I.C. § 35-41-2-4.
      5
          I.C. § 35-43-2-1(2); I.C. § 35-41-5-2.
      6
          I.C. § 35-42-2-1.5.
      7
          I.C. § 35-42-2-1(a)(3).


      Court of Appeals of Indiana | Opinion 19A-XP-1013 | February 19, 2020     Page 3 of 8
      seeking expungement of his conviction for conspiracy to commit burglary, as a

      Class B felony, and noting that he had no additional convictions. At the April 1

      hearing on Allen’s petition, the State did not oppose the petition; however, it

      noted that it was “somewhat unclear as to whether or not [Allen] is eligible” for

      expungement because “serious bodily injury during the course of that crime did

      occur.” Tr. at 30-31.


[6]   Neither Mr. or Mrs. Pohlgeers attended the expungement hearing. Larry

      Pohlgeers had passed away but, at Allen’s 2005 sentence modification hearing,

      Mr. Pohlgeers had stated: “I believe [Allen]’s served his time. Uh, I think he

      should be given a break, let him go. He’s learned his lesson.” Id. at 4. Judith

      Pohlgeers was suffering from Alzheimer’s disease at the time of the

      expungement hearing; however, as the State noted, Judith Pohlgeers had

      informed a victims’ advocate that she “was in agreement with Mr. Allen’s

      conviction being expunged in this matter.” Id. at 31.


[7]   At the conclusion of the hearing, the trial court noted that, based on his review

      of the case file, “it was bad. And I think it was real bad.” Id. at 33. The court

      denied Allen’s petition for expungement in an order dated April 11, 2019. This

      appeal ensued.



                                  Discussion and Decision
[8]   Allen sought expungement of his conviction pursuant to Indiana Code Section

      35-38-9-4. That statute gives a trial court discretion to grant relief to qualified


      Court of Appeals of Indiana | Opinion 19A-XP-1013 | February 19, 2020        Page 4 of 8
      felons, other than Class D or Level 6 felons,8 when it 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). I.C. § 35-38-9-4(c), (e) (2018).


[9]   We review a trial court’s decision under the statute for an abuse of discretion,

      which occurs when the decision is clearly against the logic and effect of the facts

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

      Here, it is undisputed that Allen meets the qualifications for expungement listed

      in subsections (c) and (e) of the statute. That is: it has been more than eight

      years since his conviction; he has no criminal charges pending against him; he

      has paid all fines, costs, and restitution; and he has not been convicted of any

      other crime since his 2003 conviction. The parties’ only dispute is whether

      Allen is ineligible for expungement under subsection (b)(3) of the statute which

      excludes persons “convicted of a felony that resulted in serious bodily injury to

      another person.” I.C. § 35-38-9-4(b)(3). The trial court apparently held,9 and




      8
        Indiana Code Section 35-38-9-3 governs expungement for Class D or Level 6 felons. A trial court must
      grant expungement for felons who qualify under that statute, whereas trial courts have discretion to grant or
      deny expungement for felons who qualify under Indiana Code Section 35-38-9-4.
      9
        The trial court order denying expungement did not state the court’s reasoning. However, from the remarks
      the trial court made at the hearing, it appears the expungement was denied due to the “bad” facts that the
      Pohlgeers were injured at the time of the crime. Tr. at 33.

      Court of Appeals of Indiana | Opinion 19A-XP-1013 | February 19, 2020                              Page 5 of 8
       the State maintains, that Allen is ineligible because the facts surrounding the

       incident that resulted in his conviction included serious bodily injury to the

       Pohlgeers. Allen and amicus curiae 10 contend that Allen is eligible because the

       crime of which he was convicted did not include serious bodily injury.


[10]   Where the interpretation of a statute is at issue, our review is de novo. Taylor v.

       State, 7 N.E.3d 362, 365 (Ind. Ct. App. 2014). If the language of a statute is

       unambiguous, we apply the plain meaning of its words and phrases. Id.

       However, if the statute is subject to more than one interpretation, “it is deemed

       ambiguous and open to judicial construction.” Id. When interpreting an

       ambiguous statute, we “attempt to determine and give effect to the intent of the

       legislature” while “read[ing] provisions of a statute together so that no part is

       rendered meaningless if it can be harmonized with the remainder of the

       statute.” Id. (quotations and citations omitted).


[11]   By enacting 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. Cline, 61 N.E.3d at 362. Because the expungement

       statutes are inherently remedial, they should be liberally construed to advance

       the remedy for which they were enacted. Id.




       10
          We granted the motion of the Indiana University Robert H. McKinney School of Law Civil Practice
       Clinic to appear as amicus curiae and submit an appellate brief.

       Court of Appeals of Indiana | Opinion 19A-XP-1013 | February 19, 2020                        Page 6 of 8
[12]   In Trout v. State, we addressed the meaning of the statutory language in Indiana

       Code Section 35-38-9-3 that, like Indiana Code Section 35-38-9-4, excludes

       from expungement eligibility any “person convicted of a felony that resulted in

       bodily injury to another person.”11 28 N.E.3d 267, 271 (Ind. Ct. App. 2015).

       We held that the language of the statute is “clear and unambiguous.” Id. We

       noted that “[t]he use of ‘that’ in the statute is a restrictive clause,” which

       renders the meaning of the statute clear: “facts from the same incident that do

       not result in a felony conviction cannot be taken into consideration when

       determining whether a person is disqualified from expungement.” Id. Thus,

       where the defendant in Trout was acquitted of the only charge related to bodily

       injury, i.e., attempted murder, and was convicted only of the non-violent Class

       D felonies of criminal recklessness with a deadly weapon and pointing a

       firearm, we held the trial court erred in denying the expungement petition. Id.

       at 272.


[13]   Here, the charges against Allen that involved bodily injury were all dismissed

       under the plea agreement. Allen was only convicted of conspiracy to commit

       burglary under subsection (1)(B) of Indiana Code Section 35-43-2-1, i.e.,

       breaking and entering the dwelling of another. He was not convicted under

       subsection (2) of the burglary statute, i.e., breaking and entering the building or

       structure of another that results in bodily injury or serious bodily injury.




       11
            The applicable language in each statute is identical.


       Court of Appeals of Indiana | Opinion 19A-XP-1013 | February 19, 2020          Page 7 of 8
       Because Allen was not “convicted of a felony that resulted in serious bodily

       injury to another person,” he cannot be excluded from eligibility for

       expungement on that basis. I.C. § 35-38-9-4(b)(3); Trout, 28 N.E.3d at 271-72.

       And since that was the only apparent basis for the trial court’s denial of Allen’s

       request for expungement, the trial court was in error. See Cline, 61 N.E.3d at

       363 (noting that, “[a]lthough the trial court is granted discretion, this does not

       extend to disregard of remedial measures enacted by our lawmakers” for the

       purpose of “provid[ing] a second chance for individuals who have in the distant

       past committed” crimes); see also Burton v. State, 71 N.E.3d 24, 25 (Ind. Ct. App.

       2017) (noting remedial expungement statutes should be liberally construed to

       advance the remedy for which they were enacted).


[14]   We reverse.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 19A-XP-1013 | February 19, 2020       Page 8 of 8
