Alan Lee Berryman v. State of Indiana , 127 N.E.3d 1246 ( 2019 )

FILED
Jun 21 2019, 6:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce A. Brightwell Curtis T. Hill, Jr.
New Albany, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alan Lee Berryman, June 21, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-XP-2433
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Vicki Carmichael,
Appellee-Plaintiff Judge
Trial Court Cause No.
10C04-1712-XP-97
May, Judge.
[1] Alan Lee Berryman appeals the trial court’s denial of his petition to expunge
the record of a case in which a jury found him not responsible by reason of
insanity (“NRRI”). Berryman raises one issue on appeal, whether a judgment
Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 1 of 9
of NRRI is a “conviction” as the term is used in Indiana Code section 35-38-9-
1. We affirm.
Facts and Procedural History
[2] On November 3, 2001, Berryman approached a man and his wife in a mall
parking lot. State v. Berryman, 796 N.E.2d 741, 742 (Ind. Ct. App. 2003),
opinion aff’d in part, vacated in part, 801 N.E.2d 170 (Ind. 2004). Berryman
grabbed the man and accused him of trying to “set up” Berryman. Id.Berryman then shot and killed the man. Id. On November 7, 2001, the State
charged Berryman with murder. 1 A jury found Berryman not responsible by
reason of insanity, so the court entered a judgment of NRRI. Subsequently, the
court involuntarily committed Berryman to a state hospital. In re Commitment of
Berryman, 797 N.E.2d 820, 822 (Ind. Ct. App. 2003).
[3] On an undisclosed date thereafter, Berryman was released from his
commitment, and he filed a Petition to Expunge/Seal Records pursuant to
Indiana Code section 35-38-9-1 in late 2017. The State filed an objection, and
the trial court held a hearing on June 14, 2018. On July 17, 2018, the trial court
issued an order denying Berryman’s petition. 2 Berryman filed a motion to
1
Ind. Code § 35-42-1-1.
2
We commend the trial court for crafting a thorough and conscientious order.
Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 2 of 9
correct error on August 8, 2018. Pursuant to Trial Rule 53.3, the motion was
deemed denied on September 24, 2018.
Discussion and Decision
[4] Indiana Code section 35-38-9-1 allows an individual arrested for a crime, but
not convicted, to seek expungement of the records related to the arrest and
charge. The statute applies “to a person who has been arrested, charged with
an offense, or alleged to be a delinquent child, if: (1) the arrest, criminal charge,
or juvenile delinquency allegation: (A) did not result in a conviction or juvenile
adjudication.” Ind. Code § 35-38-9-1(a) (emphasis added). If the petitioner
satisfies the conditions listed in the statute and does not have any pending
criminal charges, the court “shall grant the petition.” Ind. Code § 35-38-9-1(e).
Berryman argues his NRRI judgment is not a “conviction” because it does not
result in criminal punishment and, therefore, the plain language of Indiana
Code section 35-38-9-1 requires the court to grant his petition.
[5] While the question Berryman presents about Indiana Code section 35-38-9-1 is
one of first-impression in Indiana, our standard for reviewing this class of
questions is well settled. “Statutory interpretation is a question of law reserved
for the court and is reviewed de novo. De novo review allows us to decide an
issue without affording any deference to the trial court’s decision.” Shaffer v.
State, 795 N.E.2d 1072, 1076 (Ind. Ct. App. 2003) (internal citation omitted).
Consequently, “the express language of the statute and the rules of statutory
interpretation apply. We will examine the statute as a whole, and [we] avoid
Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 3 of 9
excessive reliance on a strict literal meaning or the selective reading of words.”
Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008) (internal citation
omitted), trans. denied. If the statute’s language is clear and unambiguous, we
apply the clear language of the statute. Id.[6] At issue is the meaning of the term “conviction” in Indiana Code section 35-38-
9-1 and, as former Chief Justice Shepard explained, “[t]he word ‘conviction’ is
not a term of art, and its multiple definitions create some confusion.” Carter v.
State, 750 N.E.2d 778, 779 (Ind. 2001) (holding, in the double jeopardy context,
a conviction is a court judgment, not a jury verdict). Unfortunately, the
legislature did not define “conviction” in Indiana Code section 35-38-9-1 or
elsewhere in Title 35 of the Indiana Code. When the legislature has not
provided the meaning of a term in a statute, we may consult English
dictionaries to determine a word’s plain and ordinary meaning. Naugle v. Beech
Grove City Schools, 864 N.E.2d 1058, 1068 (Ind. 2007).
[7] Black’s Law Dictionary defines “conviction” as: “1. The act or process of
judicially finding someone guilty of a crime; the state of having been proved
guilty. 2. The judgment (as by a jury verdict) that a person is guilty of a
crime.” Conviction, BLACK’S LAW DICTIONARY (10th ed. 2014) (emphases in
original). Webster’s Dictionary defines “conviction” as “the act of proving,
finding, or adjudging a person guilty of an offense or crime.” Conviction,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH
LANGUAGE UNABRIDGED (1st ed. 1976); see also Conviction, MERRIAM-
WEBSTER ONLINE DICTIONARY (available at https://www.merriam-
Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 4 of 9
webster.com/dictionary/conviction) (“the act or process of finding a person
guilty of a crime especially in a court of law”) (last visited May 17, 2019).
Thus, in common vernacular, “conviction” is used to mean either a finding of
guilt of a crime or a court judgment that leads to criminal punishment.
[8] Where, as here, there is more than one reasonable interpretation of a term in a
statute, we must construe the statute to give effect to the General Assembly’s
intent. See Nash, 881 N.E.2d at 1063. We presume the legislature intends for
“the language used in the statute to be applied logically and not to bring about
an absurd or unjust result.” Id. Therefore, “we must keep in mind the objective
and purpose of the law as well as the effect and repercussions of such a
construction.” Id.[9] Applying these principles of statutory construction, we must conclude the
legislature intended “conviction” as used in Indiana Code section 35-38-9-1 to
encompass a NRRI judgment because to hold otherwise would be absurd and
unjust, which could not have been the legislature’s intent. As we have
previously observed, the intent of Indiana Code section 35-38-9-1 is to allow an
individual who satisfies certain criteria to escape the stigma associated with an
overturned conviction or an arrest that does not result in a conviction. B.S. v.
State, 95 N.E.3d 177, 180 (Ind. Ct. App. 2018). See also Commonwealth v. W.P.,
612 A.2d 438, 441 (Pa. Super. Ct. 1992) (observing “we may not merely close
our eyes to the whole thrust of the expungement process, i.e., to exculpate an
innocent individual from the jaws of unwarranted punishment which manifests
itself and flows from the retention of one’s arrest record”).
Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 5 of 9
[10] Other states have interpreted their expungement statutes to not extend to NRRI
or similar judgments because those defendants are institutionalized in mental
health facilities after committing the criminal acts for which they are found not
responsible due to insanity. For example, in Commonwealth v. B.C.,
Pennsylvania authorities arrested B.C. and charged him with aggravated
assault, simple assault, and recklessly endangering another person. 936 A.2d
1070, 1071 (Pa. Super. Ct. 2007). He was found not guilty by reason of
insanity. Id. He petitioned for expungement, the trial court denied his petition,
and the Pennsylvania Superior Court affirmed. Id. at 1072. The Superior Court
observed that an acquitted defendant is vindicated and free to walk out of the
courtroom. Id. at 1073. However, a defendant found not guilty by reason of
insanity is confined to a mental institution until the defendant regains sanity
and no longer poses a danger to himself or others. Id. at 1074.
[11] Similarly, in Eastlack v. Commonwealth, Virginia charged Eastlack with malicious
wounding and the trial court found him to be not guilty by reason of insanity.
282 Va. 120, 122-23 (2011). He subsequently petitioned to have the police and
court records related to his criminal case expunged. Id. at 123. The Virginia
Supreme Court noted certain restrictions placed on people found not guilty by
reason of insanity, such as they cannot possess or purchase firearms. Id. at 125.
Further, under Virginia’s statutory scheme, a “person found not guilty by
reason of insanity could, immediately after the entry of judgment, seek
expungement and, if successful, avoid all the constraints upon his liberty
imposed by the ‘not guilty by reason of insanity’ laws.” Id. Consequently, the
Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 6 of 9
court held individuals found not guilty by reason of insanity were not eligible to
have their police and court records expunged. Id. at 126.
[12] Likewise, the New Hampshire Supreme Court held an individual found not
guilty by reason of insanity was not entitled to have his record annulled. State v.
Bulcroft, 166 N.H. 612, 617 (2014). In so holding, the court noted that if it were
to rule in Bulcroft’s favor and allow him to annul the record immediately after
the verdict, it would effectively “nullify a process established to protect society
from those individuals whose release would create a substantial risk of injury to
others.” Id. at 615.
[13] These policy concerns apply equally in Indiana, and we find them persuasive.
A NRRI verdict is not equivalent to a “not guilty” verdict. If the State fails to
prove each element of the criminal offense beyond a reasonable doubt, then the
jury must render a verdict of not guilty. Ind. Code § 35-41-4-1(a). A NRRI
verdict signifies that the defendant committed the criminal act, but the
defendant is not legally responsible because “as a result of mental disease or
defect, [the defendant] was unable to appreciate the wrongfulness of the
conduct at the time of the offense.” Ind. Code § 35-41-3-6. If Berryman’s
expungement petition were granted, the record of his heinous crime would be
sealed and unavailable to the public. The legislature could not have intended
such a result.
[14] People have a right to know if their neighbors have committed violent acts and
to use this knowledge to ensure their own safety. See Wallace v. State, 905
Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 7 of 9
N.E.2d 371, 383 (Ind. 2009) (noting “registration systems are a legitimate way
to protect the public from sex offenders”), reh’g denied. Murder is a serious
crime, and a murder conviction is one of the few convictions that can never be
expunged. See Ind. Code § 35-38-9-5(b) & Ind. Code § 35-38-9-4 (stating those
convicted of a homicide offense are not eligible to have convictions expunged).
Berryman remained in state custody after the NRRI verdict because he
remained a threat to public safety.
[15] Additionally, if we were to accept Berryman’s interpretation of the statute, an
individual found NRRI could petition for expungement much earlier than a
person convicted of a crime. Indiana Code section 35-38-9-1 provides an
individual is eligible to petition for expungement “[n]ot earlier than one (1) year
after the date of arrest, criminal charge, or juvenile delinquency allegation
(whichever is later), if the person was not convicted or adjudicated a delinquent
child, or the date of the opinion vacating the conviction or adjudication
becomes final.” In comparison, individuals convicted of crimes eligible for
expungement must wait 5 years to have the conviction expunged if it was a
misdemeanor, eight years if the conviction was a felony, and ten years if the
conviction was a felony resulting in serious bodily injury or committed by an
elected official or candidate for public office. See Ind. Code §§ 35-38-9-2 to 35-
38-9-5. Even if found NRRI, an individual can still pose a danger to society,
and perhaps this is why individuals found NRRI are excluded from the
definition of “proper person” for purposes of Indiana’s firearm statutes. Ind.
Code. § 35-47-1-7.
Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 8 of 9
[16] At the hearing, Berryman argued he has trouble obtaining housing and
employment because of the record of his charge. This is like B.C.’s argument
that his arrest and his subsequent not guilty by reason of insanity verdict
interfered with his ability to obtain better employment. B.C., 936 A.2d at 1072.
However, like the Superior Court of Pennsylvania, we are not persuaded that
permitting Berryman to expunge his record is in the best interest of public
safety. Consequently, we construe the term “conviction” to include a NRRI
verdict for purposes of Indiana Code section 35-38-9-1. See Nash, 881 N.E.2d at
1062-64 (holding statutory definition of corrections officer included a nurse who
worked in a prison but was employed by a staffing agency rather than the
department of correction).
Conclusion
[17] In solidarity with our sister states, we hold that an individual adjudicated NRRI
may not have that finding expunged pursuant to Indiana Code section 35-38-9-
1. To hold otherwise would be contrary to public policy, absurd, and unjust,
which our legislature could not have intended. Accordingly, the trial court is
affirmed.
[18] Affirmed.
Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 9 of 9