FILED
Sep 15 2016, 8:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Chris M. Teagle Gregory F. Zoeller
Muncie, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mindy M. Cline, September 15, 2016
Appellant-Petitioner, Court of Appeals Case No.
38A04-1512-XP-2221
v. Appeal from the Jay Circuit Court
The Honorable Brian D.
State of Indiana, Hutchison, Judge
Appellee-Respondent. Trial Court Cause No.
38C01-1510-XP-3
Bailey, Judge.
Case Summary
Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016 Page 1 of 9
[1] Mindy Cline (“Cline”) appeals the denial of her petition for expungement,
presenting the sole issue of whether the trial court abused its discretion. We
reverse and remand.
Facts and Procedural History
[2] In 2003, Cline was convicted of Forgery. In 2004, she was convicted of
Dealing in Methamphetamine. On October 16, 2015, Cline filed a petition
seeking expungement of the records of these convictions. The State did not
oppose the petition.
[3] The trial court conducted a hearing on November 12, 2015, at which Cline
testified and the State presented no evidence. At the conclusion of the hearing,
the trial court took the matter under advisement, stating:
Well, Ms. Cline, obviously I remember you. I don’t have any
fond memories of you (inaudible) your criminal behavior. That
doesn’t mean – that doesn’t mean that you should necessarily be
deprived of this opportunity but it doesn’t mean I’m not going to
do this by (inaudible). I’m going to think about it for a while.
I’m concerned by the – the offenses you committed. Number
one, Forgery, a crime of dishonesty. Number two, dealing
methamphetamine. Putting it bluntly, it’s a pain in my ass. I
have [to] deal with meth and heroin every damn day here and
I’ve – I’ve had a belly full. I’m not doing favors for people that
are causing these problems in Jay County. I’m also concerned by
the fact that you’ve only been out of supervision for five years.
And I could turn that around and I could say hey, way to go,
you’ve been out five years and you haven’t – haven’t messed up.
That’s what I’m going to think about a little bit. I will rule on it
within thirty days.
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(Tr. at 12.) On November 13, 2015, the trial court denied the petition for
expungement, “based largely on the nature of the convictions, the severity of
the offenses, and the relatively short duration since release from
probation/parole on the most recent convictions (approx. 5 years).” (App. at
5.) Cline now appeals.
Discussion and Decision
[4] Indiana Code Section 35-38-9-4 permits persons convicted of certain crimes to
have their conviction records expunged. Through the expungement statutes,
the “legislature intended to give individuals who have been convicted of certain
crimes a second chance” by providing an opportunity for relief from the stigma
associated with their criminal convictions. Taylor v. State, 7 N.E.3d 362, 367
(Ind. Ct. App. 2014). 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), trans. denied.
[5] Under Chapter 35-38-9, expungement is not available to sex or violent offenders
or persons convicted of official misconduct, homicide offenses, human and
sexual trafficking offenses, or sex crimes. See I.C. § 35-38-9-3(b); I.C. § 35-38-9-
4(b); I.C. § 35-38-9-5(b). For qualifying offenses, the requirements for
expungement generally depend on the level of offense of which the person was
convicted. Depending on the offense level, expungement may be either
mandatory or discretionary. Key v. State, 48 N.E.3d 333, 336 (Ind. Ct. App.
2015).
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[6] Cline sought relief pursuant to Indiana Code Section 35-3-9-4, applicable to
qualified felonies other than Class D or Level 6 felonies. Subsection (e) of that
statute provides that the trial court may order conviction records expunged if the
court finds by a preponderance of the evidence that: (1) the requisite period has
elapsed (eight years from the date of conviction or three years from the
completion of the sentence, or as shortened by prosecutorial agreement); (2) no
charges are pending against the person; (3) applicable fines, costs, and
restitution have been paid; and (4) the person has not been convicted of a crime
within the previous eight years (or a shorter period with prosecutorial
agreement) (emphasis added).
[7] The use of the term “may” in a statute ordinarily implies a permissive condition
and a grant of discretion. Key, 48 N.E.3d at 337. Thus, the court may, in its
discretion, grant an unopposed petition for expungement. Id. An abuse of
discretion occurs where the decision is clearly against the logic and effect of the
facts and circumstances. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
[8] Cline argues that the trial court abused its discretion by relying upon
circumstances that are not statutory bars to expungement, specifically, the type
of offenses and length of time elapsed. Also, it appears that the trial court may
have concluded that Cline had a total of eight convictions, as opposed to two. 1
1
The petition for expungement and the order thereon reference four counts each of Forgery and Dealing in
Methamphetamine. Cline testified – without contradiction and corroborated by an Indiana State Police
criminal history exhibit – that she had a single conviction of Forgery and a single conviction of Dealing in
Methamphetamine.
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According to the State, Cline is simply asking that this Court reweigh the
evidence and invade the province of the fact-finder. However, this argument
ignores the reality that all evidence presented to the trial court militated toward
expungement.
[9] Cline committed her offenses during her youth and has satisfied the statutory
prerequisites for expungement. Beyond that, Cline has consistently been
employed, and has obtained an Associate’s Degree in Business Administration,
a CPR license, and a ServSafe certification. She testified that she had been
promoted from food server to store management, but lost her job when store
owners learned of her criminal record. Cline expressed a desire to return to
management, a prospect more feasible with record expungement. The
prosecutor offered no evidence or argument in opposition to expungement.
[10] Moreover, we find the trial court’s articulation of its evaluative processes to be
particularly troubling. Undeniably, methamphetamine and other illicit drugs
are a burden upon communities and judicial resources. That said, our
Legislature has provided a second chance for individuals who have in the
distant past committed drug-related crimes. Although the trial court is granted
discretion, this does not extend to disregard of remedial measures enacted by
our lawmakers. As previously observed, such statutes should be liberally
construed to advance the remedy for which they were enacted. Brown, 947
N.E.2d at 490. We conclude that the trial court abused its discretion in denying
Cline’s petition for expungement.
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[11] Reversed and remanded.
Riley, J., concurs.
Barnes, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016 Page 6 of 9
IN THE
COURT OF APPEALS OF INDIANA
Mindy M. Cline,
Appellant-Petitioner, Court of Appeals Cause No.
38A04-1512-XP-2221
v.
State of Indiana,
Appellee-Respondent.
Barnes, Judge, dissenting.
[12] I respectfully dissent. Although the commentary from the trial court here was
not exactly artful and was unnecessarily harsh, I believe the court was within its
discretionary parameters in rejecting Cline’s expungement request, with one
possible correction.
[13] As the majority recognizes, the expungement statute for felonies above Class D
or Level 6 provides only that a trial court “may” expunge a conviction upon
proof of the statutory requirements; it does not mandate expungement. See Ind.
Code § 35-38-9-4(e). Thus, whether to grant Cline’s expungement petition was
within the trial court’s discretion. See Key, 48 N.E.3d at 337. The statute is
silent regarding the factors a trial court may consider in deciding how to
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exercise its discretion when ruling on a non-mandatory expungement petition.
I see nothing wrong in the trial court here having considered the seriousness of
the offenses and the time period since Cline finished her probationary term
when ruling on her petition. Additionally, the trial court had face-to-face
interaction with Cline that we cannot have. To the extent the majority
emphasizes reasons why the expungement petition should have been granted, I
believe it is reweighing the evidence and substituting its judgment for the trial
court’s. Even if the expungement could have been granted on these facts, I do
not believe the facts compelled granting it. See Rouster v. State, 705 N.E.2d 999,
1005 (Ind. 1999) (noting that when reviewing denial of a discretionary motion,
fact that trial court could have granted motion does not necessarily mean court
abused its discretion in denying motion).
[14] However, I would send this case back to the trial court for it to clarify how
many convictions it believed Cline had. Although Cline originally stated in her
expungement petition that she had four convictions for Class C felony forgery
and four convictions for Class B felony dealing in methamphetamine, the clear
evidence presented at the expungement hearing demonstrated that she only had
one conviction each for forgery and dealing in methamphetamine. The trial
court’s order denying the expungement request erroneously refers to four
convictions for each offense. I would remand this case for the trial court to
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correct its order in that regard and, if warranted, reconsider its order denying
expungement in light of Cline having only two prior convictions, not eight. 2
2
It is unclear from the record whether the trial court relied in part on a mistaken belief in the number of
Cline’s prior convictions when denying her expungement petition.
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