Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Mar 30 2012, 9:57 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
court of appeals and
case. tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
VICKY L. TISDIAL GREGORY F. ZOELLER
Noblesville, Indiana Attorney General of Indiana
HENRY A. FLORES, JR.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
VICKY L. TISDIAL, )
)
Appellant, )
)
vs. ) No. 29A05-1011-CR-728
)
STATE OF INDIANA, )
)
Appellee. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable William J. Hughes, Judge
Cause No. 29D03-0905-CM-216
March 30, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Vicky L. Tisdial appeals the trial court’s denial of her petition requesting
expungement of her arrest record. The State cross appeals.
We reverse.
ISSUE
Whether the trial court’s order is void for lack of personal
jurisdiction.
FACTS
On May 20, 2009, an officer with the Carmel Police Department arrested Tisdial
after she sprayed mace into the face of Christine Young. The next day, Tisdial was
charged with battery resulting in bodily injury, a class A misdemeanor. On December 2,
2009, the State moved to dismiss the charge. On March 31, 2010, Tisdial moved pro se
to expunge her arrest record.
On April 27, 2010, Tisdial’s public defender filed an amended expungement
petition, claiming that expungement was appropriate because “no offense was
committed.” (Tisdial’s Amended App. 249). Tisdial served a copy of the amended
petition on the Hamilton County Prosecutor’s Office, the Carmel Police Department, and
the Indiana State Police Central Repository. Tisdial did not serve the Attorney General.
On August 26, 2010, after a hearing, the trial court denied Tisdial’s request for an
expungement. The trial court found that Tisdial failed to prove that no offense was
committed and/or that the Carmel Police Department did not have probable cause for the
arrest.
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DISCUSSION
Even though Tisdial’s petition was denied, the State argues on cross appeal that
the trial court’s order should be set aside as void. The State notes that while the
expungement statute, Indiana Code section 35-38-5-1, requires that a copy of the
expungement petition be served only on “the law enforcement agency and the state
central repository of records,” Indiana Trial Rule 4.6 requires service “[i]n the case of a
state governmental organization upon the executive officer thereof and also upon the
Attorney General.” The State cites Guy v. Commissioner, Ind. Bureau of Motor Vehicles,
937 N.E.2d 822 (Ind. Ct. App. 2010) in support of its cross appeal.
In Guy, the Bureau of Motor Vehicles (“the BMV”) denied the renewal of Guy’s
driver’s license. Guy filed a petition asking the trial court for a hearing and an order
renewing his license. Guy sent a summons to the BMV’s Commissioner but failed to file
a summons with the Attorney General, as was required by both Indiana Code section 4-
21.5-5-8 and T.R. 4.6. The Commissioner did not appear at the hearing; however, the
trial court “specifically denied [Guy’s] petition to order the Commissioner to renew his
Indiana operator’s license.” Id. at 823.
Guy appealed the trial court’s denial of his petition for an order to renew his
Indiana operator’s license. The Commissioner responded that “the trial court lacked
personal jurisdiction to consider Guy’s petition because Guy failed to serve the Attorney
General . . . .” Id. at 823-24. We held that when a party fails to serve the Attorney
General under Trial Rule 4.6, then service of process is ineffective. Id. at 825. We also
held that lack of service to the Attorney General deprives the trial court of personal
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jurisdiction over the State agency affected and, therefore, the trial court “[cannot] enter
any order in this case.” Id. at 826 (Emphasis added). We then held that the trial court’s
order should be vacated because the court did not have personal jurisdiction. Id.
Here, service upon the state central repository of records was required by Indiana
Code section 35-38-5-1. Because the central repository is a state governmental
organization, service also was required upon the Attorney General under Trial Rule 4.6.
Such service did not occur; therefore, the trial court was deprived of personal jurisdiction
over the agency and could not enter any order in the case. 1 Under Guy, the trial court’s
order is void. Accordingly, we reverse with instructions that the trial court vacate its
order.2
Reversed with instructions.
BAKER, J., and BAILEY, J., concur.
1
The trial court’s Chronological Case Summary does not indicate that the Attorney General filed an
appearance or appeared at the hearing.
2
The Attorney General asks us to dismiss the appeal and to “affirm the trial court in all respects.” State’s
Br. at 8. We cannot affirm a void judgment, as it is a complete nullity that may be attacked at any time.
Stidham v. Whelchel, 698 N.E.2d 1152, 1156 (Ind. 1998).
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