MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 17 2018, 8:20 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jonathon M. Berbari Curtis T. Hill, Jr.
Jay Chaudhary Attorney General of Indiana
Nick Parker
Justin F. Roebel
Indiana Legal Services, Inc. Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.B., October 17, 2018
Appellant-Petitioner, Court of Appeals Case No.
18A-XP-352
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Respondent Judge
The Honorable Stanley E. Kroh,
Magistrate
Trial Court Cause No.
49G03-1610-XP-37137
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018 Page 1 of 6
[1] D.B. appeals the trial court’s denial of her petition to expunge her Class C
felony conviction for battery resulting in serious bodily injury. Finding no
error, we affirm.
[2] In 1991, D.B. engaged in an altercation with her supervisor at work; she hit her
supervisor with her fist and caused an injury. In 1992, she was convicted of
Class C felony battery resulting in serious bodily injury. D.B. completed the
imposed sentence.
[3] On October 18, 2016, D.B. filed a petition to expunge her Class C felony
conviction under Indiana Code section 35-38-9-5.1 On November 7, 2016, the
State objected to the expungement of this conviction, stating that D.B. did not
have the written consent of the prosecutor as required by Indiana Code section
35-38-9-5(e)(5).
[4] An evidentiary hearing took place on November 17, 2017. D.B. explained
what occurred during her confrontation with her supervisor; that she was later
diagnosed with mental health issues for which she receives treatment; that she
has learned how to address problems without resorting to physical altercations;
and that she is gainfully employed. A care coordinator from the health facility
from which D.B. receives treatment testified that D.B. is compliant with her
treatment sessions and has rehabilitated herself. At the end of the hearing, the
1
D.B. also petitioned to expunge two other convictions. The trial court granted those expungements and
they are not at issue here.
Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018 Page 2 of 6
State indicated that if it did not file a written response within thirty days, then
the trial court should consider the State to have provided the statutory consent.
The State did not file any written indication of consent.
[5] On January 29, 2018, the trial court denied D.B.’s petition to expunge this
conviction, noting that “[a] review of the file shows the victim of the offense
suffered a ruptured spleen which required surgery.” Appellant’s App. Vol. II p.
13.
[6] D.B.’s sole argument on appeal is that the trial court erred by denying her
petition to expunge her conviction for Class C felony battery resulting in serious
bodily injury. We reverse a lower court’s ruling denying a petition to expunge
only where the decision is clearly against the logic and effect of the facts and
circumstances before it. Cline v. State, 61 N.E.3d 360, 362 (Ind. Ct. App. 2016).
[7] Indiana Code section 35-38-9-5 governs the expungement of conviction records
for a person convicted of a felony that resulted in serious bodily injury to
another person. The statute provides that:
(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;
Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018 Page 3 of 6
(4) the person has not been convicted of a crime within the
previous ten (10) 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));
and
(5) the prosecuting attorney has consented in writing to the
expungement of the person's criminal records;
the court may order the conviction records . . . marked as
expunged . . . .
Ind. Code § 35-38-9-5(e) (emphasis added). The use of the term “may” in a
statute ordinarily implies a permissive condition and a grant of discretion.
Cline, 61 N.E.3d at 362. Therefore, a court may, in its discretion, grant an
unopposed petition for expungement. Id.
[8] As D.B. points out, the statute authorizes expungement for people who
committed felonies resulting in serious bodily injury. D.B. argues that the trial
court misconstrued the statute and disregarded the legislature’s intent that these
convictions could be expunged when the trial court denied D.B.’s petition
because she had committed a felony that resulted in serious bodily injury. In
other words, D.B. argues that the trial court erred by relying upon a
circumstance that is not a statutory bar to expungement.
[9] D.B.’s argument overlooks the statute’s use of the word “may.” The statute
does not require a trial court to grant a petition for expungement when the
requirements of subsection 5(e) are met; instead, it gives the trial court
Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018 Page 4 of 6
discretion to do so. Here, the trial court did not categorically deny D.B.’s
petition for expungement simply because she had committed a felony that
resulted in serious bodily injury. Rather, the trial court considered the
seriousness of D.B.’s offense and exercised its discretion, determining that
because the victim of D.B.’s crime “suffered a ruptured spleen which required
surgery,” appellant’s app. vol. II p. 13, D.B.’s petition to expunge this
conviction should be denied.
[10] D.B. argues that Cline should govern the outcome of the instant case. In that
case, Cline had two felony convictions, one for forgery and one for dealing in
methamphetamine, that she petitioned for expungement. Since those
convictions, Cline had generally been successful in life, maintaining
employment and obtaining a degree, and did not commit any crimes between
the time of those convictions and her petition to expunge them. Cline, 61
N.E.3d at 362. D.B.’s case is distinguishable from Cline, however, because
following her Class C felony conviction, D.B. was convicted of misdemeanor
possession of marijuana.2 Appellant’s App. Vol. II p. 16. In other words,
whereas Cline was able to stay out of legal trouble between the time of her
felony convictions and petition for expungement, D.B. was not, and her
“misdemeanor distinguishes [her] case from Cline.” W.R. v. State, 87 N.E.3d
2
D.B. was convicted of this misdemeanor on January 3, 2006, more than ten years before she filed her
petition to expunge her Class C felony conviction.
Court of Appeals of Indiana | Memorandum Decision 18A-XP-352 | October 17, 2018 Page 5 of 6
30, 32 (Ind. Ct. App. 2017). In sum, the trial court did not err by denying
D.B.’s petition to expunge her Class C felony conviction.
[11] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
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