Mindy M. Cline v. State of Indiana

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).

Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016 Page 3 of 9 [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.

Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016 Page 5 of 9 [11] Reversed and remanded.

Riley, J., concurs. Barnes, J., dissents with separate opinion.

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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 Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016 Page 7 of 9

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

Court of Appeals of Indiana | Opinion 38A04-1512-XP-2221 | September 15, 2016 Page 8 of 9 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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