Michael J. Gilliam II v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED

this Memorandum Decision shall not be Feb 28 2018, 10:59 am

regarded as precedent or cited before any

court except for the purpose of establishing CLERK

Indiana Supreme Court

Court of Appeals

the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Jon C. Spurr Curtis T. Hill, Jr.

Terre Haute, Indiana Attorney General of Indiana

Monika Prekopa Talbot

Supervising Deputy Attorney

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Michael J. Gilliam II, February 28, 2018

Appellant-Defendant, Court of Appeals Case No.

84A01-1707-XP-1754

v. Appeal from the Vigo Superior

Court

State of Indiana, The Honorable Michael Rader,

Appellee-Plaintiff Judge

Trial Court Cause No.

84D05-1701-XP-77

Altice, Judge.

Case Summary

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[1] Michael J. Gilliam II appeals the trial court’s summary denial of his petition to

expunge records related to his 2000 convictions for Class C felony operating a

motor vehicle while intoxicated causing death and Class C felony driving while

suspended resulting in death.

[2] We affirm.

Facts & Procedural History

[3] In 2000, Gilliam pled guilty to the above Class C offenses and was sentenced to

concurrent four-year terms of imprisonment with two years suspended. Gilliam

served his executed term on in-home detention and then successfully completed

probation in January 2005.

[4] On January 6, 2017, Gilliam petitioned the trial court to expunge his

convictions and seal the record. The State did not consent to expungement of

these records and, in fact, filed a written objection on May 2, 2017. Shortly

thereafter, the trial court issued its order denying Gilliam’s petition pursuant to

Ind. Code § 35-38-9-5(a)(2).

[5] Gilliam filed, on May 12, 2017, what he styled as a “Motion to Reconsider”,

along with a response to the State’s written objection. Appellant’s Appendix at

29. The trial court held a hearing on Gilliam’s motion and, after taking the

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matter under advisement, denied the motion on June 30, 2017. Gilliam filed

his notice of appeal on July 27, 2017.1

Discussion & Decision

[6] Under Indiana Code Chapter 35-38-9, criminal records may be expunged for

certain qualifying offenses, and the exclusions and requirements for

expungement vary based on the level or type of offense for which the person

was convicted. See I.C. § 35-38-9-2 (misdemeanors); I.C. § 35–38–9–3 (Class D

or Level 6 felonies); I.C. § 35-38-9-4 (other felonies except, among other

exclusions, “a felony that resulted in serious bodily injury to another person”);

I.C. § 35-38-9-5 (offenses committed by elected officials while in office and

felonies that resulted in serious bodily injury). Depending on the offense,

expungement may be either mandatory or discretionary upon certain findings

by the trial court. Key v. State, 48 N.E.3d 333, 336 (Ind. Ct. App. 2015).

[7] Gilliam’s arguments on appeal are all based on the misguided notion that I.C.

§ 35-38-9-4 rather than I.C. § 35-38-9-5 applies to his petition for expungement.

Gilliam recognizes that under the latter section he would be required to provide

1

The State contends that the appeal is untimely because Gilliam’s motion to reconsider did not toll the time

for filing the notice of appeal. We decline to favor form over substance. Gilliam’s motion was filed after

entry of a final judgment and, though titled otherwise, clearly constituted a motion to correct error. See

Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998) (“although substantially the same as a

motion to reconsider, a motion requesting the court to revisit its final judgment must be considered a motion

to correct error”); see also Snyder v. Snyder, 62 N.E.3d 455, 458 (Ind. Ct. App. 2016) (“motions to correct error

are proper only after the entry of final judgment; any such motion filed prior to the entry of final judgment

must be viewed as a motion to reconsider”). But see Scatterfield v. State, 30 N.E.3d 1271 (Ind. Ct. App. 2015)

(treating a motion to reconsider entered after a final judgment as titled). We conclude that Gilliam’s notice

of appeal was timely filed.

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the trial court with the prosecuting attorney’s written consent to the

expungement, which he has been unable to obtain.

[8] The less onerous section 4 expressly excludes its application to “[a] person

convicted of a felony that resulted in serious bodily injury to another person.”

I.C. § 35-38-9-4(b)(3). On the other hand, section 5 applies to “a person

convicted of a felony that resulted in serious bodily injury to another person.”

I.C. § 35-38-9-5(a)(1). It is undisputed that Gilliam’s offenses resulted in the

death of another person. We find disingenuous Gilliam’s argument that death

is not included within the definition of serious bodily injury. “Serious bodily

injury” is statutorily defined to include “bodily injury that creates a substantial

risk of death or that causes…permanent or protracted loss or impairment of the

function of a bodily member or organ”. Ind. Code § 35-31.5-2-292(4). “Case

law has determined that death falls within the category of serious bodily

injury.” State v. Lewis, 883 N.E.2d 847, 851 (Ind. Ct. App. 2008) (citing Nelson

v. State, 664 N.E.2d 386, 388 (Ind. Ct. App. 1996) (“the bodily injury inflicted

caused the victim permanent unconsciousness and the permanent loss of the

function of all bodily members and organs”), trans. denied).

[9] The trial court properly applied I.C. § 35-38-9-5 to Gilliam’s petition. The

petition did not include an attached copy of the prosecuting attorney’s written

consent, as required by I.C. § 34-38-9-8(b)(11). Thus, the trial court was

permitted to summarily deny the petition without a hearing. See I.C. § 35-38-9-

9(b). Moreover, the trial court had no discretion to grant the petition without

the written consent of the prosecuting attorney. See I.C. § 35-38-9-5(e)(5).

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[10] Judgment affirmed.

[11] May, J. and Vaidik, C.J., concur.

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