Brian J. Allen v. State of Indiana ( 2020 )

FILED
Dec 22 2020, 3:05 pm
CLERK
Indiana Supreme Court
Court of Appeals
IN THE and Tax Court
Indiana Supreme Court
Supreme Court Case No. 20S-XP-506
Brian J. Allen
Appellant (Petitioner),
–v–
State of Indiana
Appellee (Respondent).
Decided: December 22, 2020
Appeal from the Dearborn Superior Court,
No. 15D01-1811-XP-44
The Honorable James D. Humphrey, Special Judge
On Petition to Transfer from the Indiana Court of Appeals,
No. 19A-XP-1013
Opinion by Justice Goff
Chief Justice Rush and Justices David, Massa, and Slaughter concur.
Goff, Justice.
Our legislature provided a mechanism by which people convicted of
certain crimes can obtain a fresh start by seeking expungement of those
convictions. For certain minor convictions, expungement is mandatory if
the petitioner meets certain criteria. For more serious convictions, the trial
court retains the discretion to determine whether the circumstances
warrant an expungement. Courts considering whether to grant a
discretionary expungement are tasked with looking at the unique facts of
each case to determine whether the individual has demonstrated that his
case merits a fresh start.
The defendant here challenges the trial court’s decision to deny his
petition for expungement, contending that the court erroneously
determined that he was ineligible for expungement. Because the trial court
may have denied the petition on the erroneous belief that Indiana Code
section 35-38-9-4(b)(3) rendered the defendant ineligible for expungement,
we reverse and remand for further consideration consistent with this
opinion.
Factual and Procedural History
In 2002, nineteen-year-old Brian J. Allen accompanied three of his
friends to burglarize the home of Larry and Judith Pohlgeers in West
Harrison, Indiana. Upon arriving, Allen and another man remained
outside, keeping watch as their confederates—armed with a lead pipe—
broke into the residence. At some point during the burglary, the men who
entered the home struck Larry Pohlgeers repeatedly on the head with
their cudgel, causing serious bodily injury to their victim.
The State charged Allen with six counts: Class A felony attempted
robbery, I.C. § 35-42-5-1 (1998), I.C. § 35-41-5-1, I.C. § 35-41-2-4; Class A
felony conspiracy to commit robbery, I.C. § 35-42-5-1, I.C. § 35-41-5-2;
Class A felony burglary, I.C. § 35-43-2-1(2) (Supp. 2002), I.C. § 35-41-2-4;
Class A felony conspiracy to commit burglary, I.C. § 35-43-2-1(2), I.C. § 35-
41-5-2; Class B felony aggravated battery, I.C. § 35-42-2-1.5; and Class C
felony battery with a deadly weapon, I.C. § 35-42-2-1(a)(3). The State
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ultimately dismissed the six original counts in exchange for Allen
agreeing to plead guilty to Class B felony conspiracy to commit burglary.
See I.C. § 35-43-2-1(1) (Supp. 2002), I.C. § 35-41-5-2.
Allen was sentenced to sixteen years of imprisonment. He later sought
and received a modification of his sentence. Allen was placed on
probation after serving just over thirty-four months of incarceration. He
completed all the terms of his probation without any violations. After
waiting the required three years, Allen, who had no prior criminal history,
petitioned for expungement under Indiana Code section 35-38-9-4 (the
Permissive Expungement Statute).
At the hearing on his petition, the court heard testimony from Allen on
his commitment to work and to his wife and two children. The
expungement, he testified, would permit him to advance his career, to “do
a better job of being able to provide for [his] family,” and to teach his
children responsibility. Tr. Vol. I, p. 15. The court also admitted into
evidence letters of recommendation from Allen’s brother-in-law, his
coworker, and a doctor—each of whom attested to Allen’s good character
and strong work ethic. And while neither of the Pohlgeers attended the
expungement hearing, the court considered their testimony from other
sources. Larry Pohlgeers, who had passed away, opined at an earlier
sentence-modification hearing that Allen “should be given a break” since
he’d “learned his lesson.” Id. at 4. For her part, Judith Pohlgeers informed
a victims’ advocate that she “was in agreement with Mr. Allen’s
conviction being expunged in this matter.” Id. at 31.
Allen admitted at the hearing that Larry Pohlgeers had suffered serious
bodily injury as a result of the burglary. Because of his admission, and
because the Permissive Expungement Statute exempts convictions of
crimes resulting in serious bodily injury, the State expressed doubt as to
whether Allen was eligible for expungement. The trial court denied the
petition for expungement without explaining its reasoning.
In a unanimous, published opinion, the Court of Appeals reversed.
Allen v. State, 142 N.E.3d 488, 491 (Ind. Ct. App. 2020). The panel held that
the trial court had improperly interpreted the Permissive Expungement
Statute and, because the crime of which Allen was convicted didn’t result
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in serious bodily injury, the trial court improperly denied his petition for
expungement. Id.The State sought transfer, which we granted, thereby vacating the
Court of Appeals opinion. See Ind. Appellate Rule 58(A)(2).
Standard of Review
The Court ordinarily reviews the denial of a petition for expungement
under the Permissive Expungement Statute for abuse of discretion. See
Cline v. State, 61 N.E.3d 360, 362 (Ind. Ct. App. 2016) (“The use of the term
‘may’ in a statute ordinarily implies a permissive condition and a grant of
discretion.”). “An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances.” Id. Where, as
here, the interpretation of a statute is at issue, we apply a de novo standard
of review. State v. Int'l Bus. Machines Corp., 964 N.E.2d 206, 209 (Ind. 2012).
Under this standard, the goal is to determine and give effect to the
legislature’s intent. Indiana Alcohol & Tobacco Comm'n v. Spirited Sales, LLC,
79 N.E.3d 371, 376 (Ind. 2017). If the language of a statute is unambiguous,
we apply the plain meaning of its words and phrases. Id. We are mindful
both of what a statute says and what it does not say and we “may not add
new words to a statute which are not the expressed intent of the
legislature.” Id.Discussion and Decision
Indiana Code chapter 35-38-9 governs the sealing and expungement of
a person’s conviction records. Under the Permissive Expungement
Statute, a 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); (2) no charges are pending against the person;
(3) the 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 agreed to by the prosecutor). I.C. § 35-38-9-4(e).
However, the Permissive Expungement Statute expressly does not apply
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(i.e., a conviction may not be expunged) if the felony “resulted in serious
bodily injury to another person.” I.C. § 35-38-9-4(b)(3) (the SBI Exclusion).
I. Allen was eligible for expungement.
There’s no question that Allen met all of the conditions in subsection
4(e) of the Permissive Expungement Statute. The only question is whether
his conviction for Class B felony conspiracy to commit burglary (the crime
for which he stood convicted) is eligible or ineligible for expungement
under the SBI Exclusion. Allen and Amicus Curiae argue that, because that
crime resulted in no serious bodily injury to another person, the trial court
erred by denying his motion. 1 The State, on the other hand, argues that the
SBI Exclusion renders Allen ineligible for expungement because the facts
incidental to his conviction involved serious bodily injury.
Our appellate courts haven’t directly addressed whether the SBI
Exclusion in the Permissive Expungement Statute prohibits expungement
when the elements of the crime of conviction don’t include serious bodily
injury. However, the Court of Appeals has addressed a similar situation
with reference to mandatory expungements under Indiana Code section
35-38-9-3 (the Mandatory Expungement Statute). Like the Permissive
Expungement Statute, the Mandatory Expungement Statute excludes from
eligibility a “person convicted of a felony that resulted in bodily injury to
another person.” I.C. § 35-38-9-3(b)(3). In Trout v. State, the Court of
Appeals held that, because “that” is a restrictive clause, the felony of
conviction must have resulted in bodily injury to another person. 28
N.E.3d 267, 271 (Ind. Ct. App. 2015).
The logic of Trout applies with equal force in this case. The phrasing of
the statutes calls for the same result: a person may be eligible for
expungement unless the felony for which he stands convicted resulted in
serious bodily injury to another person. That the facts of the incident
1Allen proceeded pro se before the Court of Appeals. When the State filed its Petition for
Transfer, Allen didn’t respond. Amicus Curiae, who also filed a brief in support of Allen before
the Court of Appeals, filed a response to the State’s petition.
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leading to the conviction show serious bodily injury is not enough to
exclude a person from eligibility for expungement.
Still, the State contends that this Court should interpret the SBI
Exclusion such that the trial court may consider the underlying facts of the
criminal activity, rather than just the elements of the offense. The State
argues that this interpretation isn’t a novel one, citing to White v. State, 961
N.E.2d 54 (Ind. Ct. App. 2012), trans. denied. In White, the Court of Appeals
held that the trial court could consider the facts of the underlying crime to
determine if the defendant was a credit-restricted felon. 2 Id. at 56–57. But
unlike the credit-restricted-felon statute, the expungement statutes are
“inherently remedial,” so courts must construe them liberally to
accomplish their remedial purpose. See Cline, 61 N.E.3d at 362. The State
also argues that if we interpret the Permissive Expungement Statute in
this manner, prosecutors will be less likely to give favorable plea offers.
But this policy argument cannot overcome the text of the statute. See e.g.,
Booker, Inc. v. Morrill, 639 N.E.2d 358, 361 (Ind. Ct. App. 1994).
While Allen was charged with crimes that involved bodily injury to
another person (e.g., aggravated battery and battery with a deadly
weapon), those charges were dismissed when he pled guilty to conspiracy
to commit burglary. Conspiracy to commit burglary doesn’t result in
bodily injury to another person. 3 Allen isn’t excluded from eligibility for
expungement under the SBI Exclusion because he wasn’t “convicted of a
felony that resulted in serious bodily injury to another person.” I.C. § 35-
38-9-4(b)(3).
The fact that Allen was eligible for expungement doesn’t end the
inquiry, however, because, unlike the Mandatory Expungement Statute at
2The credit-restricted-felon statute limits the amount of good time credit the defendant
receives while imprisoned for a crime or confined awaiting trial or sentencing. I.C. § 35-50-6-
3.1; I.C. § 35-50-6-4.
3Allen was convicted of conspiracy to commit burglary under Indiana Code Section 35-43-2-
1(1)(B), which involves breaking and entering the dwelling of another. He was not convicted
under Indiana Code Section 35-43-2-1(2), which is breaking and entering the building or
structure of another that results in bodily injury or serious bodily injury.
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issue in Trout, the Permissive Expungement Statute vests discretion in the
trial court to deny expungement.
II. A trial court evaluating an expungement petition
may consider facts incident to the conviction, but
the trial court here gave us nothing to go on.
The trial court didn’t indicate why it denied Allen’s petition for
expungement. At the hearing on the petition, the State questioned
whether Allen was eligible, leaving the court itself in doubt. 4 In the order
denying Allen’s petition, the trial court found “in its discretion” that the
petition should be denied, but the court didn’t discuss the basis of its
decision. App. Vol. 1 p. 15.
A. A trial court may consider facts incident to the
conviction when evaluating an expungement petition.
Expungement statutes manifest an intent to grant relief from stigma
associated with criminal convictions. Cline, 61 N.E.3d at 362. Indiana
courts generally construe expungement statutes liberally to advance the
remedy for which they were enacted. Id. However, the legislature also
clearly recognized that some convictions require a more detailed
examination before they are expunged. Unlike under the Mandatory
Expungement Statute, the Permissive Expungement Statute vests in the
trial court the discretion to either grant or deny a petition for
expungement. This grant of discretion necessarily requires the court to
engage in a fact-intensive inquiry to determine whether the circumstances
of the case warrant expungement of the conviction. In short, the statute
recognizes the possibility that the crime might be too serious to expunge.
4 During its closing argument, the State said “regarding the first issue of whether or not Mr.
Allen is eligible for expungement, I think this is a matter that is purely one of the law and I’m
leaving up to the Court to decide. I think, however, it is somewhat unclear as to whether or
not he is eligible.” Tr. at 30.
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In other cases, the same crime might be a serious but isolated event and
the petitioner might prove deserving of a second chance. See, e.g., Cline, 61
N.E.3d at 363 (reversing the denial of expungement where the petitioner
had obtained advanced education and been promoted at work).
Relying on Cline, Amicus Curiae argues that a trial court shouldn’t be
able to consider the facts of the incident that didn’t lead to a conviction at
the discretionary stage. Cline held that the trial court abused its discretion
in denying the petition for expungement when the only evidence
militating against expungement was the type of offense and the time that
had elapsed between the offense and the petition. 61 N.E.3d at 363. But the
Cline court’s reading is inconsistent with the language of the Permissive
Expungement Statute, which gives discretion to the trial court without
listing any factors to inform the court’s consideration. See I.C. § 35-38-9-
4(e). In other words, a trial court, when deciding whether to exercise its
discretion, is not prohibited from considering the facts of the incident
leading to the conviction—even if the conviction itself doesn’t require
proof of those facts.
B. A trial court should first determine whether the
conviction is eligible for expungement and then
whether it merits expungement.
Because the Permissive Expungement Statute excludes from eligibility
persons convicted of certain offenses, but vests in the court discretion to
either grant or deny a petition, a trial court should engage in a two-step
process when considering a petition for expungement. First, a court must
determine whether the conviction is eligible for expungement and the
petitioner has met the requirements. I.C. §§ 35-38-9-4(b), -4(e). If the
conviction is ineligible, the inquiry ends there. But if the court determines
that the conviction is eligible for expungement, it must then collect
enough information to determine whether it should grant or deny the
petition. In issuing its decision, a trial court may consider a broad array of
information, including the nature and circumstances of the crime and the
character of the offender. In this case, significant evidence supported
Allen’s petition: testimony about his role as a committed father, husband,
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and provider; letters of recommendation from family, friends, and co-
workers; and support from the victims themselves. The trial court,
however, didn’t articulate its reasons for denying Allen’s petition for
expungement. And because the trial court in this case did not articulate
why it denied Allen’s petition, we’re unable to determine what
consideration the court gave the evidence presented at the hearing or if it
entirely failed to consider the evidence favoring expungement based on a
mistaken belief that Allen was ineligible for expungement.
Conclusion
For these reasons, we reverse the trial court’s order denying Allen’s
petition for expungement and remand with instructions for the court to
reconsider its decision consistent with this opinion.
Rush, C.J., and David, Massa, and Slaughter, JJ., concur.
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APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Brian J. Allen Curtis T. Hill, Jr.
Sunman, Indiana Attorney General of Indiana
ATTORNEYS FOR AMICUS CURIAE Lauren A. Jacobsen
INDIANA UNIVERSITY ROBERT H. Stephen R. Creason
MCKINNEY SCHOOL OF LAW CIVIL Deputy Attorneys General
PRACTICE CLINIC Indianapolis, Indiana
Carrie Hagen
Director, Civil Practice Clinic
Indianapolis, Indiana
Sherell Scott
Elizabeth Whitaker
Malorie Palmer
Grace Dillow
Natalie Gaynier
Katherine Bender
Certified Legal Interns
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