Dec 31 2015, 9:53 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew M. Barker Gregory F. Zoeller
Russell B. Cate Attorney General of Indiana
Campbell Kyle Proffitt LLP
Noblesville, Indiana Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.A., December 31, 2015
Appellant-Petitioner, Court of Appeals Case No.
48A02-1504-MI-215
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Dennis D. Carroll,
Appellee-Respondent. Judge
Trial Court Cause No.
48C06-1408-MI-379
Najam, Judge.
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Statement of the Case
[1] D.A. appeals the trial court’s denial of his request to apply an expungement
order to the records of a civil forfeiture proceeding that arose from the same
facts underlying his now-expunged convictions. D.A. raises a single issue for
our review, which is an issue of first impression: whether our expungement
statutes apply to the records of civil forfeiture proceedings. We hold that, on
these facts, the trial court erred when it did not apply the expungement order to
the records of D.A.’s civil forfeiture proceeding.1
Facts and Procedural History
[2] On May 9, 2002, the Madison County Drug Task Force (“MCDTF”) set up a
controlled drug buy in which a confidential informant purchased cocaine from
D.A. The MCDTF set up additional controlled buys on May 15 and May 17.
Subsequently, MCDTF officers arrested D.A. and seized $1,340 in United
States currency from him. Six-hundred and twenty dollars were marked
currency that the MCDTF had used in its controlled drug buys. D.A. used the
remaining amount, $720, to facilitate the commission of D.A.’s dealing
offenses, or that amount was the proceeds from those offenses.
[3] Following his arrest, the State charged D.A. with dealing and possession
offenses. On February 28, 2003, D.A. was convicted of dealing in marijuana,
as a Class C felony, and possession of cocaine, as a Class C felony, under
1
We held oral argument on December 14, 2015, in the Court of Appeals Courtroom.
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criminal cause number 48D01-0210-FB-490 (“FB-490”). Meanwhile, the State
also filed a civil forfeiture action against the $720 seized from D.A. during his
arrest for the criminal offenses. The State’s forfeiture action was filed under the
miscellaneous criminal cause number 48D01-0206-MC-292 (“MC-292”).
Following D.A.’s convictions for the underlying offenses, on October 21, 2003,
the trial court ordered the $720 forfeited either because D.A. had used that
money to facilitate his commission of the underlying offenses or because that
money was the proceeds from those offenses.
[4] In August of 2014, D.A. filed a petition to expunge the records of his
convictions in cause number FB-490. The trial court granted D.A.’s petition.
Thirteen days later, D.A. requested the court to amend its expungement order
to include and expunge the records of cause number MC-292, the civil forfeiture
proceeding. After a hearing, the court denied D.A.’s request that the
expungement order also be applied to the records of the civil forfeiture
proceeding. This appeal ensued.
Discussion and Decision
Whether D.A. Procedurally Defaulted on His Request
for the Trial Court to Extend its Expungement Order
[5] D.A. appeals the denial of his request to extend the expungement order to the
records of the civil forfeiture proceeding. However, we first discuss the State’s
assertion that D.A. procedurally defaulted on his request for the expungement
of the civil forfeiture records. Although the State did not object to D.A.’s
additional filing in the trial court, we generally may affirm the trial court’s
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judgment on any basis supported by the record. E.g., Cook v. Ford Motor Co., 913
N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied. With that general
principle in mind, the State contends that this court should affirm the trial
court’s denial of D.A.’s request for “additional expungement,” see Appellant’s
App. at 2, because D.A.’s request was equivalent to filing a second
expungement petition, which is generally prohibited, see Ind. Code § 35-38-9-
9(h) (2014).2
[6] But we cannot agree with the State’s premise that this is a valid basis on which
this court may affirm the trial court’s judgment. “It is well settled that a
complaining party has a duty to direct the trial court’s attention to a defective
filing, and failure to raise an objection constitutes waiver on appeal.” Handy v.
P.C. Bldg. Materials, Inc., 22 N.E.3d 603, 607 n.4 (Ind. Ct. App. 2014) (citing
Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990)), trans. denied. Moreover, a
party “may not take advantage of an error that he commits, invites, or which is
the natural consequence of his own neglect or misconduct.” Id. (quotation
marks omitted). Here, the State had the opportunity to object to D.A.’s
additional filing, but it did not. Thus, this issue was not presented to the trial
court. Indeed, in the trial court the State referred to D.A.’s filing as a motion to
2
All statutory references are to the statutes in effect at the time D.A. filed his petition for expungement. See,
e.g., Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 215 (Ind. 2012). In his Reply Brief, D.A.
asserts that the State erroneously relied on the current version of Indiana Code Section 35-38-9-9 for its
argument that D.A. procedurally defaulted rather than the version in effect at the time D.A. filed his petition.
But the statute in effect at the time D.A. filed his petition explicitly limited a petitioner to one expungement
petition “during the petitioner’s lifetime.” I.C. § 35-38-9-9(h).
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correct error, which is generally permitted under Indiana Trial Rule 59. See Tr.
at 17. The State cannot now argue that the filing was defective. Handy, 22
N.E.3d at 607 n.4. In other words, the State cannot use its own failure to
object, whether that failure was intentional or inadvertent, as a sword to
preempt our review of D.A.’s appeal. We conclude that the State’s argument
regarding the timing of D.A.’s filing is not properly before us. Id.
Statutory Interpretation
[7] We thus turn to the merits of this appeal, which require us to interpret the
Indiana Code.
Statutory interpretation is a function for the courts, and our goal
in statutory interpretation is to determine, give effect to, and
implement the intent of the legislature as expressed in the plain
language of its statutes. State v. Prater, 922 N.E.2d 746, 749 (Ind.
Ct. App. 2010), trans. denied. “The first rule of statutory
construction is that ‘[w]ords and phrases shall be taken in their
plain, or ordinary and usual, sense.’” Id. (quoting Ind. Code § 1-
1-4-1(1)) (alteration original). Further, courts may not “engraft
new words” onto a statute or add restrictions where none exist.
Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013).
Statutory interpretation is a question of law and is reviewed de
novo, or without deference to the trial court’s interpretation.
Curley v. Lake Cnty. Bd. of Elections & Registration, 896 N.E.2d 24,
34 (Ind. Ct. App. 2008), trans. denied. “When a statute has not
previously been construed, our interpretation is controlled by the
express language of the statute and the rules of statutory
construction.” Prater, 922 N.E.2d at 748. “If a statute is
unambiguous, that is, susceptible to but one meaning, we must
give the statute its clear and plain meaning.” Curley, 896 N.E.2d
at 34 (quotations omitted). “If a statute is susceptible to multiple
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interpretations, we must try to ascertain the legislature’s intent
and interpret the statute so as to effectuate that intent.” Id.
(quotation omitted). “We review the statute as a whole and
presume the legislature intended logical application of the
language used in the statute, so as to avoid unjust or absurd
results.” Prater, 922 N.E.2d at 748. “[W]e must consider not
only what the statute says but what it does not say.” Curley, 896
N.E.2d at 37. In other words, “we are obliged to suppose that
the General Assembly chose the language it did for a reason.”
Prater, 922 N.E.2d at 750.
Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798, 805-
06 (Ind. Ct. App. 2015) (alterations in original).
[8] The essential question in this appeal is whether our expungement statutes apply
narrowly only to “conviction records” or apply more broadly to any records
that “relate to . . . [a] conviction.” See I.C. § 35-38-9-4(c). Our expungement
statutes are located within Indiana Code Chapter 35-38-9, which is titled
“Sealing and Expunging Conviction Records” and consists of eleven sections.
Sections 1 through 5 of that Chapter permit arrestees and defendants to petition
an Indiana trial court for expungement of certain records. For example, D.A.
filed his petition under Section 4,3 which in relevant part states:
(c) Not earlier than the later of eight (8) years from the date of
conviction, or three (3) years from the completion of the person’s
3
In his Reply Brief and at oral argument, D.A. asserted that, following expungement, his Class C felony
convictions were reduced to Class D felonies and, therefore, different expungement statutes should now
apply to him. But we are a court of review, and both D.A. and the trial court expressly relied on the
expungement statutes that apply to Class C felony convictions. We review the trial court’s judgment
accordingly.
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sentence, unless the prosecuting attorney consents in writing to
an earlier period, the person convicted of the felony may petition a court
to expunge all conviction records, including records contained in:
(1) a court’s files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or
services to the petitioning person under a court order;
that relate to the person’s felony conviction.
(d) A person who files a petition to expunge conviction records
shall file the petition in a circuit or superior court in the county of
conviction.
(e) If the court finds by a preponderance of the evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person has paid all fines, fees, and court costs, and
satisfied any restitution obligation placed on the person as
part of the sentence; and
(4) the person has not been convicted of a crime within the
previous eight (8) years (or within a shorter period agreed
to by the prosecuting attorney if the prosecuting attorney
has consented to a shorter period under subsection (c));
the court may order the conviction records described in subsection (c)
marked as expunged in accordance with section 7 of this chapter. A
person whose records have been ordered marked as expunged
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under this section is considered to have had the person’s records
expunged for all purposes other than the disposition of the
records.
Id. (emphases added).
[9] Also relevant to this appeal is Section 7,4 which discusses the effect of
expunging records and states:
(a) This section applies only to a person who has filed a petition
for expungement under section 4 or 5 of this chapter and whose
records have been ordered marked as expunged.
(b) The court records and other public records relating to the arrest,
conviction, or sentence of a person whose conviction records have been
marked as expunged remain public records. However, the court shall
order that the records be clearly and visibly marked or identified as being
expunged. A petition for expungement granted under sections 4
through 5 of this chapter does not affect an existing or pending
driver’s license suspension.
(c) The state police department, the bureau of motor vehicles,
and any other law enforcement agency in possession of records
that relate to the conviction ordered to be marked as expunged
shall add an entry to the person’s record of arrest, conviction, or
sentence in the criminal history data base stating that the record
is marked as expunged.
4
Again, in his Reply Brief and at oral argument, D.A. asserted that Section 6 applied to him because his
convictions are now Class D felonies. But as D.A. did not make these arguments to the trial court we do not
consider them on appeal.
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I.C. § 35-38-9-7 (emphasis added). And “[a] petition for expungement and an
order for expungement are confidential.” I.C. § 35-38-9-10(i).
[10] As we have recognized, the policy underlying our expungement statutes is to
“give individuals who have been convicted of certain crimes a second chance by
not experiencing many of the stigmas associated with a criminal
conviction . . . .” J.B. v. State, 27 N.E.3d 336, 339 (Ind. Ct. App. 2015). To that
end, Section 10 provides:
(b) It is unlawful discrimination for any person to:
(1) suspend;
(2) expel;
(3) refuse to employ;
(4) refuse to admit;
(5) refuse to grant or renew a license, permit, or certificate
necessary to engage in any activity, occupation, or
profession;
or
(6) otherwise discriminate against;
any person because of a conviction or arrest record expunged or
sealed under this chapter.
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(c) The civil rights of a person whose conviction has been
expunged shall be restored, including the right to vote, to hold
public office, and to serve as a juror.
(d) In any application for employment, a license, or other right or
privilege, a person may be questioned about a previous criminal
record only in terms that exclude expunged convictions or
arrests, such as: “Have you ever been arrested for or convicted of
a crime that has not been expunged by a court?”. [sic]
(e) A person whose record is expunged shall be treated as if the person
had never been convicted of the offense. However, upon a subsequent
arrest or conviction for an unrelated offense, the prior expunged
conviction:
(1) may be considered by the court in determining the
sentence imposed for the new offense;
(2) is a prior unrelated conviction for purposes of:
(A) a habitual offender enhancement; and
(B) enhancing the new offense based on a prior
conviction;
and
(3) may be admitted as evidence in the proceeding for a
new offense as if the conviction had not been expunged.
(f) Any person that [sic] discriminates against a person as
described in subsection (b) commits a Class C infraction and may
be held in contempt by the court issuing the order of
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expungement or by any other court of general jurisdiction. Any
person may file a written motion of contempt to bring an alleged
violation of this section to the attention of a court. In addition,
the person is entitled to injunctive relief.
(g) In any judicial or administrative proceeding alleging
negligence or other fault, an order of expungement may be
introduced as evidence of the person’s exercise of due care in
hiring, retaining, licensing, certifying, admitting to a school or
program, or otherwise transacting business or engaging in
activity with the person to whom the order of expungement was
issued.
(h) A conviction that has been expunged under this chapter is not
admissible as evidence in an action for negligent hiring,
admission, or licensure against a person or entity who relied on
the order.
I.C. § 35-38-9-10 (emphasis added).
[11] The first question we must consider is whether our expungement statutes are
ambiguous with respect to the scope of the records to be expunged. We must
conclude that they are. Again, Section 4 states that a person “may petition a
court to expunge all conviction records, including records contained in[] a court’s
files . . . that relate to the person’s felony conviction.” I.C. § 35-38-9-4
(emphases added). This language is ambiguous. The phrase “conviction
records” appears limiting, but the phrase “records . . . that relate to the person’s
felony conviction” appears broad.
[12] Nonetheless, the State asserts that “[t]he plain language of [Section 4] limits
expungement to records of a criminal arrest or conviction.” Appellee’s Br. at 7.
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That is certainly a reasonable interpretation of “conviction records.” See I.C. §
35-38-9-4. But the State’s argument ignores and renders meaningless the
additional statutory directive to expunge all records “contained in[] a court’s
files . . . that relate to the person’s felony conviction.” Id. (emphasis added).
We will not read that additional directive as meaningless surplusage; rather,
“we are obliged to suppose that the General Assembly chose the language it did
for a reason.” Prater, 922 N.E.2d at 750.
[13] Accordingly, we interpret Section 4 to require the court to expunge both a
person’s “conviction records,” such as a judgment of conviction, and any other
records “that relate to the person’s felony conviction.” I.C. § 35-38-9-4. And
we conclude that where, as here, a civil forfeiture is ancillary to and premised
on criminal activity for which the defendant was convicted, the records of that
civil forfeiture “relate” to that conviction. Indeed, “before a forfeiture occurs,
the State must demonstrate that the property sought in forfeiture was used to
facilitate [certain] criminal activities.” Katner v. State, 655 N.E.2d 345, 348
(Ind. 1995). Accordingly, D.A. was entitled to have the records of his civil
forfeiture expunged along with his underlying conviction. I.C. § 35-38-9-4.
[14] Still, the State argues that civil forfeiture records can never “relate” to a
conviction simply because they are civil rather than criminal records. The
State’s argument here is intertwined with its reading of “conviction records,”
which we have already rejected. The statutory language that requires a court to
expunge records that “relate” to a conviction makes no distinction between
criminal records that relate to a conviction and civil records that relate to a
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conviction. Indeed, the statute refers broadly to “a court’s files,” not
specifically to, for example, the court of conviction’s files. It is not this court’s
place to “engraft new words” onto a statute or add restrictions where none
exist. Kitchell, 997 N.E.2d at 1026.
[15] At oral argument, the State argued that it is not clear that the civil forfeiture in
MC-292 was based on the same criminal activity underlying D.A.’s convictions
in FB-490. But the State raises this argument for the first time on appeal (and,
at that, for the first time at the oral argument). In the trial court, D.A. expressly
asserted that the civil forfeiture in MC-292 “directly related to [the] criminal
prosecution” in FB-490. Tr. at 4. The State could have presented evidence to
challenge that assertion and did not. We will not entertain this argument on
appeal in the first instance.
[16] Finally, the State argues that, even if we agree with D.A.’s arguments on the
merits, this court “cannot grant” D.A. the relief he requests because “all records
expunged pursuant to [Section 4] remain public record. The only change is that
the records are marked or identified as being expunged.” Appellee’s Br. at 9-10.
But the General Assembly clearly determined that such annotations are
worthwhile. I.C. § 35-38-9-7. As such, we reject the State’s argument.
[17] The expungement statutes are inherently remedial and, as such, should be
liberally construed to advance the remedy for which they were enacted. Brown
v. State, 947 N.E.2d 486, 490 (Ind. Ct. App. 2011). The purpose of our
expungement statutes is to “give individuals who have been convicted of certain
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crimes a second chance by not experiencing many of the stigmas associated
with a criminal conviction . . . .” J.B., 27 N.E.3d at 339. That purpose would
be frustrated by providing only incomplete or partial relief. Accordingly, we
hold that, where, as here, a civil forfeiture is ancillary to a criminal conviction
and the nexus between the civil forfeiture and the criminal conviction is
established, a defendant may petition the trial court to expunge the records of
that civil forfeiture along with the records of the related criminal conviction. In
other words, where the factual basis for a criminal conviction and a civil
forfeiture are the same, the records of the civil forfeiture proceeding relate to the
person’s conviction for purposes of our expungement statutes. Because the trial
court erred when it concluded otherwise, we reverse the trial court’s judgment
and remand for further proceedings.
[18] Reversed and remanded.
Kirsch, J., concurs.
Barnes, J., dissents with separate opinion.
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INTHE
COURT OF APPEALS OF INDIANA
D.A., Court of Appeals Case No.
48A02-1504-MI-215
Appellant-Petitioner,
v.
State of Indiana,
Appellee-Respondent.
Barnes, Judge, dissenting.
[19] I respectfully dissent. I certainly understand, as the majority recognizes, that
the overarching purpose of the expungement statutes is to remove “stigmas”
associated with criminal convictions and to allow a fresh start for persons who
meet the statutory requirements. J.B. v. State, 27 N.E.3d 336, 339 (Ind. Ct.
App. 2015). However, I do not believe we are free to add language to the
statutes to permit the expungement of records related to civil forfeitures.
[20] First, although the majority does not find the distinction to be relevant, it is well
settled that forfeiture proceedings such as the one D.A. seeks to have expunged
are civil in nature, not punitive or criminal. See, e.g., Katner v. State, 655 N.E.2d
345, 348 (Ind. 1995). Indeed, it is possible for a forfeiture to occur even if the
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person whose property is forfeited has never been convicted or even charged
with a crime. Serrano v. State, 946 N.E.2d 1139, 1141 (Ind. 2011). What that
means for purposes of this case is that, if D.A. had never been convicted of a
crime but merely had his property forfeited, there is no possible basis upon
which he could have sought expungement of the forfeiture records. In other
words, a person who is subject to only forfeiture has no right to expungement,
while a person who is also convicted of a related crime is entitled to
expungement under the majority’s holding. It does not seem fair or equitable to
me that a person also convicted of a crime is entitled to preferential treatment
over a person who is not convicted of a crime.
[21] Second, I note the general rule of statutory construction, “expressio unius est
exclusio alterius,” which means that the enumeration of certain things in a
statute implies the exclusion of all other things. Brown v. State, 774 N.E.2d
1001, 1006 (Ind. Ct. App. 2002), trans. denied. Although not conclusive, it can
be a useful aid in discerning legislative intent. Id. The expungement statutes
were first enacted in 2013 and represented a sea change in Indiana criminal law.
They have been amended twice since then. I presume the legislature carefully
considered these statutes. At no time did it see fit to include forfeiture
proceedings within the enumerated list of records subject to expungement,
which expressly includes Department of Correction, Bureau of Motor Vehicles,
and treatment records. I believe we should not add civil forfeitures to the list of
records to be expunged by judicial action. If the legislature chooses to act on
civil forfeitures, so be it.
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[22] Finally, I believe it is appropriate to consider the practical effect of
expungement. As noted by the majority, despite arguments by D.A. to the
contrary in his reply brief and at oral argument, the trial court addressed his
expungement request as falling under Indiana Code Section 35-38-9-4. An
expungement under this section does not result in sealing of the conviction
records; instead, they remain public records. Ind. Code § 35-38-9-7(b). Thus,
the fact of D.A.’s conviction will remain readily available to the public. Even if
a conviction record is sealed under Indiana Code Section 35-38-9-6, in this day
and age it will be practically impossible to prevent internet access to a person’s
criminal record. In other words, the expungement cannot as a practical matter
literally wipe a person’s slate clean in the eyes of an intrusive and
technologically-savvy public. The effect of expungement, despite this public
access and knowledge, comes through Indiana Code Section 35-38-9-10, which
prohibits discrimination against someone based on an expunged criminal
conviction. D.A. is entitled to this protection, regardless of whether his civil
forfeiture record is expunged. I conclude he has received all the protection to
which he is entitled by expungement of records directly related to his conviction
and that he is not additionally entitled to expungement of the civil forfeiture
judgment. These statutes, in my view, promise the erasure of a conviction, not
anonymity and not more than the statutory language speaks to.
[23] For these reasons, I dissent and vote to affirm the trial court.
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D.A. v. State of Indiana
Combined Opinion