                                                               FILED
                                                           Jun 24 2020, 9:51 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court



                        IN THE

 Indiana Supreme Court
           Supreme Court Case No. 19S-XP-673

                   Naveed Gulzar,
                    Appellant (Petitioner)

                             –v–

                   State of Indiana,
                    Appellee (Respondent)


     Argued: February 20, 2020 | Decided: June 24, 2020

Appeal from the Elkhart Superior Court, No. 20D05-1811-XP-76
           The Honorable Charles C. Wicks, Judge

  On Petition to Transfer from the Indiana Court of Appeals
                       No. 19A-XP-637



               Opinion by Chief Justice Rush
           Justices David, Massa, and Goff concur.
       Justice Slaughter dissents with separate opinion.
Rush, Chief Justice.

   Expungement removes the stigma associated with a criminal
conviction—one of the last barriers ex-offenders face when reintegrating
into society. But before filing an expungement petition, an individual
must wait a set period of time after their “date of conviction.”

   Here, Naveed Gulzar petitioned to expunge a minor felony conviction
that had been converted to a misdemeanor. The relevant statute required
Gulzar to wait five years before seeking expungement; but, at the time of
his petition, the statute wasn’t clear on when the waiting period began.
The trial court—believing the relevant five years hadn’t elapsed—denied
the petition. Then, while Gulzar’s appeal was pending, the legislature
amended the statute to alleviate the confusion and made the change
effective immediately. Under the new version, Gulzar’s expungement
petition would have been granted.

  We conclude that the amended statute should apply retroactively to
Gulzar, as this application effectuates the remedial law’s purpose. We
thus reverse and remand.


Facts and Procedural History
   In January 2006, Naveed Gulzar was working at a gas station when a
patron left her credit card behind. Gulzar and a coworker took the credit
card and used it to make several purchases. After the victim reported the
card stolen, Gulzar was arrested. He admitted to the offense and told
officers where they could find the stolen card and purchased items.

   As a result, Gulzar pleaded guilty to Class D felony theft, with
sentencing left to the court’s discretion. At sentencing, Gulzar’s counsel,
the investigating officer, and the State all recommended that the trial court
reduce Gulzar’s conviction to a misdemeanor. But the court declined to do
so, reasoning that Gulzar used the credit card “not once but four times.”
So, in April 2006, the court entered judgment of conviction for the felony.

   Over the next seven years, Gulzar petitioned eleven times to have his
felony conviction converted to a misdemeanor. Though the State didn’t



Indiana Supreme Court | Case No. 19S-XP-673 | June 24, 2020         Page 2 of 8
object on multiple occasions, the court denied each request. Even when
the victim consented to modification, the court still refused to convert the
felony. Eventually, when Gulzar’s counsel asked what it would take to get
a petition granted, the judge responded, “[I]f he can go ten years without
another crime we’ll take another look at it.” Gulzar did just that. In
August 2016—more than ten years after the felony conviction—the court
granted Gulzar’s twelfth petition, converting the Class D felony to a Class
A misdemeanor.

  Two years later, Gulzar sought to expunge the conviction under
Indiana Code section 35-38-9-2, which applies to a person convicted of a
minor felony—Class D or Level 6—that was subsequently reduced to a
misdemeanor. The statute required a petitioner to wait five years from
“the date of conviction” before filing, but the law referenced only “the
misdemeanor” conviction. I.C. § 35-38-9-2(c) (2018). The trial court denied
Gulzar’s petition, reasoning that his “date of conviction” was when the
felony was converted and thus the five years had not yet passed.

  Gulzar subsequently filed a motion to correct error, arguing that his
“date of conviction” was actually over a decade earlier, when he was
convicted of the felony. After a hearing, the court denied the motion.
Gulzar appealed, and a divided panel of our Court of Appeals affirmed.
Gulzar v. State, 132 N.E.3d 51, 57 (Ind. Ct. App. 2019).

   Gulzar petitioned for transfer, which we granted, vacating the Court of
Appeals decision. Ind. Appellate Rule 58(A). A few weeks later, the
General Assembly introduced Senate Bill 47, which in part sought to
amend Indiana Code section 35-38-9-2—the misdemeanor expungement
statute under which Gulzar filed his petition. S.B. 47, 121st Gen. Assemb.,
2d Reg. Sess. (Ind. 2020). The revision clarified when the five-year waiting
period would begin. Though the bill was pending when we held oral
argument, both parties acknowledged that, under the proposed change,
Gulzar would be entitled to expungement. The bill subsequently passed,
with the relevant amendment effective immediately. See Pub. L. No. 55-
2020, § 9, 2020 Ind. Acts 286, 290 (codified as amended at I.C. § 35-38-9-
2(c)). Due to these unique circumstances, we now consider, sua sponte,
whether the amendment applies retroactively to Gulzar.



Indiana Supreme Court | Case No. 19S-XP-673 | June 24, 2020         Page 3 of 8
Discussion and Decision
   Absent explicit language to the contrary, statutes generally do not
apply retroactively. E.g., Guzzo v. Town of St. John, 131 N.E.3d 179, 180
(Ind. 2019). But there is a well-established exception for remedial statutes.
See Martin v. State, 774 N.E.2d 43, 44 (Ind. 2002). One line of remedial
statutes are those enacted to cure a defect or mischief in the prior law. Id.;
Remedial Statute, Black’s Law Dictionary 1634 (10th ed. 2014). Yet even
when the legislature passes such a law, retroactivity is permissive, not
mandatory. State v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005).

   Though we have often said that remedial statutes will apply
retroactively only if “there are strong and compelling reasons,” this
determination ultimately hinges on the objective behind the new law. See
Bourbon Mini–Mart, Inc. v. Gast Fuel & Servs., Inc., 783 N.E.2d 253, 260 (Ind.
2003). Indeed, our job is to construe a remedial statute in a way that
effectuates “the evident purpose for which it was enacted.” Conn. Mut. Life
Ins. Co. v. Talbot, 113 Ind. 373, 378, 14 N.E. 586, 589 (1887). And when that
purpose is served by retroactivity, “strong and compelling reasons” exist.

   For example, in Martin v. State, we found that statutory amendments
were remedial and applied them retroactively to “carry out their
legislative purpose.” 774 N.E.2d at 45. There, the question was whether
Martin could receive credit for time served on home detention as a
condition of his probation. Id. at 44. The relevant statutes were silent on
the matter, and there was a conflict of authority on the issue within our
Court of Appeals. Id. at 44–45. While Martin’s appeal was pending, the
legislature responded by revising the statutes to explicitly provide
probationers with home-detention credit. Id. at 44. We found those
amendments remedial, as “they were intended to cure a defect that
existed in prior statutes.” Id. at 45. And so, to effectuate the legislative
purpose behind the amendments, we applied them retroactively to
Martin. Id.

  Distilling these legal principles, we employ a two-step analysis to
determine whether an otherwise prospective statute applies retroactively.
We first decide whether the relevant law is remedial. If so, we then



Indiana Supreme Court | Case No. 19S-XP-673 | June 24, 2020           Page 4 of 8
consider whether retroactive application would effectuate the statute’s
legislative purpose. 1

  Here, the amendment to the misdemeanor expungement statute is
remedial—it cured a defect in the prior law. And, given the broad goals
behind Indiana’s expungement scheme, coupled with the urgency with
which the legislature addressed this issue, we find that applying the
remedial law retroactively to Gulzar effectuates its purpose.


I. The amendment to the misdemeanor expungement
   statute is remedial.
   Individuals seeking expungement must meet several conditions. At
issue here is that, before filing a petition, the person must wait a number
of years after the “date of conviction.” I.C. §§ 35-38-9-2(c), -3(c), -4(c), -5(c).
For those seeking expungement of a minor felony—Class D or Level 6—
that was subsequently reduced to a misdemeanor, the waiting period is
five years. I.C. § 35-38-9-2(c). But, until recently, it wasn’t clear when that
waiting period began.

   The previous statute stated, “Not earlier than five (5) years after the
date of conviction . . . the person convicted of the misdemeanor may
petition a court to expunge all conviction records . . . .” I.C. § 35-38-9-2(c)
(2018) (emphasis added). Yet a person like Gulzar, with a reduced felony
conviction, has never been convicted of a misdemeanor; rather, the minor
felony was converted to a misdemeanor. See I.C. § 35-50-2-7(d). Herein lies
the confusion: does the five-year waiting period begin from the felony
conviction date or from the conversion date?

   This ambiguity led to the split decision below. The Court of Appeals
majority reasoned that the waiting period began when Gulzar’s minor
felony was converted to a misdemeanor. Gulzar, 132 N.E.3d at 56. Judge




1We note that, within this analysis, retroactive application is not appropriate if it would
violate a vested right or constitutional guaranty. Martin, 774 N.E.2d at 44. These concerns are
not implicated here.



Indiana Supreme Court | Case No. 19S-XP-673 | June 24, 2020                           Page 5 of 8
Baker disagreed, believing that the waiting period ran from the date of
Gulzar’s felony conviction. Id. at 57–58 (Baker, J., dissenting). Yet, the
entire panel agreed that the majority’s interpretation created an
“incongruity.” Id. at 57 (majority opinion); id. at 57–58 (Baker, J.,
dissenting). Under its reasoning, an individual with a felony conviction
who never sought reduction could seek expungement eight years after
their conviction date. See I.C. § 35-38-9-3(c). But if the same person
successfully had their felony conviction reduced to a misdemeanor, they
would need to wait longer—at least eight years after completing their
sentence—before seeking expungement. See I.C. §§ 35-50-2-7(d), 35-38-9-
2(c). This incongruity is one that the panel urged our legislature to
address. Gulzar, 132 N.E.3d at 57; id. at 58 n.7 (Baker, J. dissenting).

   Within a few months, the General Assembly seemingly heeded the
suggestion by amending the misdemeanor expungement statute. See § 9,
2020 Ind. Acts at 290. The revised version—enacted after we granted
transfer—now provides that a person can seek expungement “five (5)
years after the date of conviction . . . for the misdemeanor or the felony
reduced to a misdemeanor.” I.C. § 35-38-9-2(c) (2020) (emphasis added).
In other words, the legislature clarified that, for individuals like Gulzar,
the five-year waiting period runs from the date of the minor felony
conviction.

   We find that this amendment is remedial: it cured a mischief that
existed in the prior statute, namely, confusion on when the waiting period
begins for certain ex-offenders seeking expungement. We now determine
whether the remedial statute should apply retroactively to Gulzar.


II. The purpose of the remedial law is realized
    through retroactive application to Gulzar.
   Retroactively applying the remedial law to Gulzar carries out the
purpose for which it was enacted. We reach this conclusion for two
interrelated reasons.

  First, retroactive application aligns with the general objectives
underlying Indiana’s expungement scheme. Our legislature enacted new



Indiana Supreme Court | Case No. 19S-XP-673 | June 24, 2020          Page 6 of 8
expungement statutes in 2013 with the goals of providing broader
expungement availability and giving ex-offenders relief from the stigma
associated with past criminal behavior—a second chance. See Pub. L. No.
159-2013, 2013 Ind. Acts 1631; Allen v. State, 142 N.E.3d 488, 491 (Ind. Ct.
App. 2020). These goals are realized by retroactively applying the
remedial amendment to Gulzar so that he gets his second chance. Indeed,
he committed a minor felony over fourteen years ago and has been a law-
abiding citizen ever since.

  Second, this amendment is unique. Since the legislature enacted the
expungement statutes, it has modified them nearly every year. See Pub. L.
No. 219-2019, §§ 5–16, 2019 Ind. Acts 2697, 2700–19; Pub. L. No. 95-2017,
§ 2, 2017 Ind. Acts 681, 685–86; Pub. L. No. 198-2016, §§ 671–72, 2016 Ind.
Acts 2399, 2880–84; Pub. L. No. 142-2015, 2015 Ind. Acts 1263; Pub. L. No.
181-2014, §§ 3–17, 2014 Ind. Acts 2291, 2293–2312. But this particular
revision is notable—it is the first since 2014 to be designated effective
upon passage. This urgency shows the legislature’s desire to quickly cure
the defect in the prior statute. See Boston v. State, 947 N.E.2d 436, 441–42
(Ind. Ct. App. 2011).

   In short, we find that the remedial amendment is aimed at making
expungement immediately available for individuals who (1) successfully
petition for conversion of a minor felony to a misdemeanor and (2) wait
five years from their felony conviction date before seeking expungement.
To effectuate that purpose, we apply the remedial law retroactively to
Gulzar.


Conclusion
  We reverse the trial court and remand with instructions to grant
Gulzar’s expungement petition.


David, Massa, and Goff, JJ., concur.
Slaughter, J., dissents with separate opinion.




Indiana Supreme Court | Case No. 19S-XP-673 | June 24, 2020          Page 7 of 8
ATTORNEYS FOR APPELLANT
Mark D. Altenhof
Goshen, Indiana

Elizabeth A. Bellin
Bellin Law Office
Elkhart, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE INDIANA UNIVERSITY ROBERT
H. MCKINNEY SCHOOL OF LAW CIVIL PRACTICE CLINIC
Carrie A. Hagan
Director, Civil Practice Clinic

Brendan Haile
Sherrell Scott
Elizabeth Whitaker
Grace Dillow
Haylie McCracken
Katherine Bender
Natalie Gaynier
Certified Legal Interns
Indiana University Robert H. McKinney School of Law
Indianapolis, Indiana




Indiana Supreme Court | Case No. 19S-XP-673 | June 24, 2020   Page 8 of 8
Slaughter, J., dissenting.

    For two reasons, I respectfully dissent from the Court’s decision to
apply a recent statutory amendment to Naveed Gulzar’s expungement
petition. First, Gulzar expressly disclaimed application of the amended
statute and asked that we review his petition under the statute in effect
when he sought expungement. Second, the amended statute does not say
it applies retroactively; it says only that it is “effective upon passage”.
2020 Ind. Acts 290. Given our presumption that legislation applies
prospectively, the phrase “effective upon passage” is presumed to mean
“has prospective effect upon passage”. I would adopt the interpretive rule
that legislation applies only prospectively unless it includes a plain
statement providing for retroactive effect.

   In lieu of such a clear, easy-to-apply rule, our case law requires that we
determine the subjective intent underlying legislative enactments. First,
we ask whether the legislature intended a statute to be remedial. Next, we
try to discern the statute’s objectives. And, last, we ask whether applying
the statute to a pending case effectuates the legislative purpose. The
problem with this analysis is that it requires us to speculate about
legislative motives. But whatever those are—and often they are elusive—
they are not the law. What qualifies as law is a statute’s enacted text. Only
the text is subject to the twin constitutional requirements of bicameralism
and presentment. See Ind. Const. art. 4, § 18; id. art. 5, § 14(a).

   The better interpretative approach looks not to what the legislature
thought but to what it said. Under such a plain-statement rule, courts
would no longer have to guess whether an amendment was intended to
clarify the original statute or to change the law going forward by
imposing a new standard in future cases. Instead, courts would pose a
single question: Does the legislation plainly say it applies to pending
cases? If it does, then it does. If it doesn’t, then it doesn’t. Compare Ind.
Code § 13-12-2-2 (“The amendment of IC 13-11-2-265(b) by P.L. 183-2002
applies retroactively to July 1, 1996.”), and id. § 35-38-6-1(f) (“This
subsection applies retroactively to any request for information, discovery
request, or proceeding, no matter when made or initiated.”), with id. § 6-
2.5-1-21(d) (“This section applies only to leases or rentals entered into after
June 30, 2003, and has no retroactive effect on leases or rentals entered into
before July 1, 2003.”).

    On March 18, 2020, while Gulzar’s petition was pending, the disputed
amendment to the expungement statute became law. 2020 Ind. Acts 286.
By its terms, the amendment took effect upon passage. Id. at 290. The
amendment said nothing about applying to petitions filed before the
effective date. Given this silence—the antithesis of a plain statement—I
would not apply the amended statute to Gulzar’s petition. Instead, and as
Gulzar requests, I would review his petition under the previous statute.
Applying that statute, I would affirm the trial court’s denial of his petition
for the same reasons Judge Crone recites in his thoughtful opinion. Gulzar
v. State, 132 N.E.3d 51, 52–57 (Ind. Ct. App. 2019), vacated. In my view,
that opinion reflects the better, more faithful interpretation of the statute
in effect when Gulzar sought expungement.




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