The opinion
FILED
Mar 05 2018, 9:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Petition for March 5, 2018
Expungement of the Conviction Court of Appeals Case No.
Records of: 02A05-1710-XP-2262
B.S., Appeal from the Allen Superior
Court
Appellant-Petitioner,
The Honorable Frances C. Gull,
v. Judge
The Honorable Jason Custer,
State of Indiana, Magistrate
Appellee-Respondent Trial Court Cause No.
02D05-1704-XP-152
May, Judge.
[1] B.S. appeals the partial denial of his petition for expungement. Pursuant to
Indiana Code section 35-38-9-1, the trial court granted expungement of the
records from the criminal cause number under which B.S. was convicted, but
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the court denied B.S.’s request to expunge all the records from the post-
conviction cause number in which B.S.’s underlying conviction was vacated.
As the post-conviction relief records should also have been expunged under
Indiana Code section 35-38-9-1, we reverse the trial court’s denial of that
portion of B.S.’s petition and remand with instructions.
Facts and Procedural History
[2] On April 24, 2001, B.S. was convicted of a Class A misdemeanor. Thereafter,
B.S. filed a petition for post-conviction relief (“PCR”). 1 The court granted his
petition on August 30, 2010:
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the judgment and conviction entered against the
Defendant, [B.S.], on [April 24, 2001]; for the offense of Class
[A] MISDEMEANOR, [ ], shall be set aside and vacated.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Allen Clerk of Court shall forthwith expunge from the
Defendant’s arrest record the judgment and conviction referred to
herein above in Cause No. [ ].
(Confidential. App. Vol. II at 23). 2
1
The record before us contains no indication of the grounds on which B.S. challenged his conviction or on
which the trial court granted of his petition for post-conviction relief.
2
As noted by the State, this order appears to include scrivener’s errors pertaining to the date and Class of
B.S.’s conviction.
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[3] On April 27, 2017, B.S. filed a petition for expungement of all records related to
his Class A misdemeanor conviction. The State did not object to his petition.
On July 5, 2017, B.S. amended his petition to request the records from his PCR
case also be sealed. On September 7, 2017, the trial court granted B.S.’s
petition as to the records from the cause number of his conviction, but denied
expungement of the PCR records because “such causes are not covered under
Indiana Code § 35-38-9 et seq.” (Id. at 29.)
Discussion and Decision
[4] B.S. contends the trial court erred by not expunging his PCR records. As the
trial court found expungement of his PCR records was not permitted under the
expungement statutes, the issue we face is one of statutory interpretation. We
have not yet examined the most recently-enacted expungement statute, making
this an issue of first impression. See Ind. Code § 35-38-9 et seq. (2015) (current
expungement statutes enacted July 1, 2013 and revised effective July 1, 2015).
[5] Construction of a statute is a question of law, which we review de novo. Day v.
State, 57 N.E.3d 809, 811 (Ind. 2016).
The first step in interpreting a statute is to determine whether the
Legislature has spoken clearly and unambiguously on the point
in question. When a statute is clear and unambiguous, we need
not apply any rules of construction other than to require that
words and phrases be taken in their plain, ordinary, and usual
sense. Clear and unambiguous statutes leave no room for
judicial construction. However when a statute is susceptible to
more than one interpretation it is deemed ambiguous and thus
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open to judicial construction. And when faced with an
ambiguous statute, other well-established rules of statutory
construction are applicable. One such rule is that our primary
goal of statutory construction is to determine, give effect to, and
implement the intent of the Legislature. To effectuate legislative
intent, we read the sections of an act together in order that no
part is rendered meaningless if it can be harmonized with the
remainder of the statute. We also examine the statute as a
whole. And we do not presume that the Legislature intended
language used in a statute to be applied illogically or to bring
about an unjust or absurd result.
City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007) (internal citations
omitted).
[6] The trial court’s order found B.S.’s “conviction records . . . shall be expunged in
accordance with I.C. 35-38-9-1.” (Conf. App. Vol. II at 28-29.) Expungement
under Indiana Code section 35-38-9-1
applies only to a person who has been arrested, charged with an
offense, or alleged to be a delinquent child, if:
(1) the arrest, criminal charge, or juvenile delinquency allegation:
(A) did not result in a conviction or juvenile adjudication;
or
(B) resulted in a conviction or juvenile adjudication and
the conviction or adjudication was vacated on appeal . . .
Additionally, for Indiana Code section 35-38-9-1 to apply, the applicant must
fulfill certain requirements as to timing and placement of the filing together
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with other identifying information. The State concedes that B.S. fulfilled these
requirements; thus, we move to addressing the relief to which he is entitled. 3
[7] If relief is granted pursuant to Indiana Code section 35-38-9-1, then:
(1) no information concerning the arrest, criminal charges,
juvenile delinquency allegation, vacated conviction, or vacated
juvenile delinquency adjudication may be placed or retained in
any state central repository for criminal history information or in
any other alphabetically arranged criminal history information
system maintained by a local, regional, or statewide law
enforcement agency;
(2) the clerk of the supreme court shall seal or redact any records
in the clerk’s possession that relate to the arrest, criminal charges,
juvenile delinquency allegation, vacated conviction, or vacated
juvenile delinquency adjudication;
(3) the records of:
(A) the sentencing court;
(B) a juvenile court;
3
The State also agrees B.S.’s PCR records should have been expunged, but the State so concedes under
Indiana Code section 35-38-9-2, which states the “records contained in [various files] that relate to the
person’s misdemeanor conviction” will be expunged. However, the relief provided if an expungement is
granted under Indiana Code sections 35-38-9-2 & 3 is limited. For example, after expungement under those
sections, records still may be released with a court order or to a law enforcement officer acting in his or her
official duty. Ind. Code § 35-38-9-6(a)(1) (2016). Such exceptions do not exist for records expunged under
Indiana Code section 35-38-9-1. As B.S. qualified for expungement under section 1, which provides more
complete relief, we determine the scope of the relief granted by section 1.
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(C) a court of appeals; and
(D) the supreme court;
concerning the person shall be redacted or permanently sealed;
and
(4) with respect to the records of a person who is named as an
appellant or an appellee in an opinion or memorandum decision
by the supreme court or the court of appeals, the court shall:
(A) redact the opinion or memorandum decision as it
appears on the computer gateway administered by the
office of technology so that it does not include the
petitioner’s name (in the same manner that opinions
involving juveniles are redacted); and
(B) provide a redacted copy of the opinion to any publisher
or organization to whom the opinion or memorandum
decision is provided after the date of the order of
expungement.
The supreme court and the court of appeals are not required to
redact, destroy, or otherwise dispose of any existing copy of an
opinion or memorandum decision that includes the petitioner’s
name.
Ind. Code § 35-38-9-1(f) (2015).
[8] Herein, the trial court found the PCR records could not be expunged because
“such causes are not covered under Indiana Code § 35-38-9 et seq.”
(Confidential App. Vol. II at 29.) However, Indiana Code section 35-38-9-1
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states “no information” regarding expunged cases shall be maintained in various
state information systems, I.C. § 35-38-9-1(f) (emphasis added), and “any
records” shall be sealed or redacted. Id. (emphasis added). B.S. argues that, as
the final result of a vacation of a conviction from a PCR case is the same as the
final result of a vacation from a direct appeal, the trial court should have
expunged his PCR case and sealed those records accordingly. The PCR
proceedings, although under a separate cause number, necessarily include
information and records of the conviction from which a petitioner is seeking
expungement relief. Thus, we must determine the scope of the legislature’s
intent.
[9] Three years ago, our court was asked to determine the scope of relief the
General Assembly intended to grant under Indiana Code section 35-38-9-2.
J.B. v. State, 558 N.E.3d 336 (Ind. Ct. App. 2015). J.B. requested the
expungement of a dismissed case, but the trial court denied the request. After
reviewing the intent behind the statute, which we said was to allow individuals
who qualify to escape the stigma of a criminal conviction, we held that to not
seal the records of the dismissed case would frustrate the intent of the General
Assembly because J.B.’s conviction was still accessible. Id. at 340. Thus, we
held, under Indiana Code section 35-38-9-2, the phrase “any records
maintained by the sentencing court, juvenile court, or appellate court” included
the records of dismissed cases. Id.; see also State v. Bergman, 558 N.E.2d 1111,
1112 (Ind. Ct. App. 1990) (expungement of conviction required after Bergman
received a post-conviction gubernatorial pardon because the intent behind the
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pardon was to “enhance [Bergman’s] career opportunities and to clear his name”)
(emphasis in original).
[10] Here, the intent and the policy underlying Indiana Code section 35-38-9-1 are
the same as the intent and policy analyzed in J.B., i.e., expungement allows an
individual, who satisfies certain criteria, to escape the stigma of a criminal
conviction by “sealing off the paper trail establishing that there ever was a
conviction.” J.B., 558 N.E.3d at 340. B.S., because he qualifies for
expungement under the statute, is able to escape the stigma of his now-
overturned criminal conviction; however, in order to do so, all records
pertaining to that conviction must be sealed. This includes, by necessity, the
PCR case wherein that criminal conviction was vacated. To accept the trial
court’s contention PCR records are not included in the expungement statute
would thwart the intent of the legislature. See id. (if dismissed cases not
included in expungement, the expungement is “meaningless”) Accordingly, we
must reverse the trial court’s partial denial of B.S. petition for expungement and
remand for the court to enter an order expunging the records from B.S.’s
underlying criminal cause number and from his post-conviction cause number
in accordance with Indiana Code section 35-38-9-1.
Conclusion
[11] Although the expungement statute does not specifically mention PCR records,
the intent behind the statute is to allow the petitioner to return to his or her
former state without stigma. Therefore, we reverse the trial court’s partial
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denial of B.S.’s petition and remand for the trial court to issue a new order in
accordance with this opinion.
[12] Reversed in part and remanded with instructions.
Vaidik, C.J., and Altice, J., concur.
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