John Alden v. State of Indiana ( 2014 )

May 27 2014, 7:18 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILL M. ACKLIN GREGORY F. ZOELLER
Westfield, Indiana Attorney General of Indiana
KYLE HUNTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN ALDEN, )
)
Appellant-Petitioner, )
)
vs. ) No. 30A05-1309-MI-463
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Dan E. Marshall, Judge
Cause No. 30D02-1306-MI-1044
May 27, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
John Alden (“Alden”) appeals the trial court’s denial of his motion to prohibit the
release of his criminal record.
We reverse and remand.
ISSUE
Whether the trial court abused its discretion when it denied Alden’s motion
to prohibit the release of his criminal record.
FACTS
In November of 1992, the State charged Alden in Hancock County with Class D
felony operating a vehicle while intoxicated. Alden pled guilty to the charge on June 1,
1993, and completed his sentence on or around August 16, 1995. Subsequently, in 1998,
an Illinois court convicted him of misdemeanor operating a vehicle while intoxicated.
Alden claims that he has not received any convictions since.
On June 4, 2013, Alden filed a motion to prohibit the release of his criminal
record. He argued that he met the requirements of Indiana Code § 35-38-8-5, which at
the time allowed courts to restrict access to the conviction records of qualifying offenders
eight years after they completed their sentences. Alden served his motion on the
Hancock County Prosecutor but not any other State entities. Shortly after Alden filed the
motion, the Indiana Legislature repealed Indiana Code § 35-38-8-5.
On August 14, 2013, the trial court held an evidentiary hearing on Alden’s motion.
At the hearing, the trial court expressed concern that Alden had not served state agencies
with notice of process even though he sought to enjoin those agencies from releasing his
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record. As a result, on August 20, 2013, the trial court denied the motion on the grounds
that: (1) Alden had failed to provide notice to certain state agencies; and (2) the
Legislature had repealed Indiana Code § 35-38-8-5. Alden now appeals. We will
provide additional facts as necessary.
DECISION
On appeal, Alden disputes both of the trial court’s conclusions. He argues that he
was not required to serve notice to affected state agencies because he served notice to a
deputy prosecutor, which constituted notice to the State. In response, the State reiterates
the trial court’s conclusion that Alden was required to serve notice to the entities
impacted by his motion—in particular the Attorney General and the Indiana State Police
Central Repository (“ISPCR”). Second, Alden argues that the trial court abused its
discretion when it denied his motion as a result of the Legislature’s repeal of the statute.
He contends that the repeal should have a prospective, rather than retroactive, effect.
Except for a brief statement in a footnote, the State does not address the merits of this
second argument and focuses solely on the issue of proper notice.
A. Notice
The State’s notice argument is a threshold procedural issue we must resolve before
addressing the merits of whether the Legislature’s repeal of Indiana Code § 35-38-8-5
should have retroactive effect. Whether Alden was required to serve notice to state
agencies is a question of law. We evaluate questions of law under a de novo standard and
do not owe any deference to the trial court’s legal conclusions. McCown v. State, 890
N.E.2d 752, 756 (Ind. Ct. App. 2008).
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Indiana Code § 35-38-8-5 did not explicitly identify which parties were required to
receive notice of a petition to restrict access to conviction records. However, the State
contends that Indiana Code § 35-38-8-3 named the Indiana State Police as an adverse
party. The statute stated that
[e]ight (8) years after the date a person completes the person’s sentence and
satisfies any other obligations imposed on the person as a part of the
sentence, the person may petition a sentencing court to order the state
police department to restrict access to the records concerning the person’s
arrest and involvement in criminal or juvenile court proceedings.
I.C. § 35-38-8-3 (emphasis added). By extension, the State notes that Indiana Trial Rule
4.6(A)(3) requires service on the executive officer of a state governmental organization
and the Indiana Attorney General when a state governmental organization is a party to an
action. Accordingly, the State contends that Alden was required to serve the Attorney
General on behalf of the state police department. The State also identifies the ISPCR as a
necessary party requiring notice because the ISPCR is the proper repository for official
state criminal history data under Indiana Code § 10-13-3-24.
While the Attorney General and ISPCR are entities that have an interest in Alden’s
motion, we recently—and after the initiation of this appeal—held that Indiana Code § 35-
38-8-3 did not require petitioners to serve notice on either the Attorney General or the
ISPCR. Pittman v. State, __N.E.3d__, No. 06A05-1305-CR-243, 2014 WL 1711011(Ind. Ct. App. April 30, 2014). In Pittman, Pittman filed a petition under Indiana Code §
35-38-8-3 to restrict access to the record of his criminal conviction, and the trial court
denied the petition because it found that he did not meet the statutory prerequisites for
Indiana Code § 35-38-8-3. Id. at *1, *2. Pittman appealed, and, in a cross-appeal, the
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State argued that Pittman had failed to serve proper notice to the State because he had not
served the Attorney General and the ISCPR. Id. at *2. We disagreed with the State on
the basis that “Pittman’s petition was simply an additional filing in his criminal case and
did not initiate a new, free-standing cause of action.” Id. Consequently, Indiana
Criminal Rule 18 rather than Indiana Trial Rule 4.6(A) governed Pittman’s service
requirements. Id. Indiana Criminal Rule 18 states that unless the trial court provides
otherwise, “a copy of every pleading and motion, and every brief submitted to the trial
court, except trial briefs, shall be served personally or by mail on or before the day of the
filing thereof upon each attorney or firm of attorneys appearing of record for each
adverse party.” Id. (emphasis added). Based on this rule, we concluded that it was
sufficient that Pittman, who had been convicted in Boone County, had served notice on
the Boone County Prosecutor. Id.
The State’s argument here mirrors its argument in Pittman. Alden served the
Hancock County Prosecutor but not the Attorney General or the ISPCR. Consequently,
as in Pittman, the State argued that he did not properly serve notice to necessary parties.
For the same reasons we articulated in Pittman, we do not find this argument persuasive.
Alden’s motion was a new filing with respect to his criminal conviction rather than a new
cause of action. As such, he fulfilled the notice requirements of Indiana Criminal Rule
18 by serving the Hancock County Prosecutor, the adverse party “of record.” See id.
B. Repeal
As we have found that Alden’s notice was sufficient, we must determine whether
the trial court abused its discretion in denying his motion on the basis that the Legislature
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repealed Indiana Code § 35-38-8-3. Again, this is a question of law that we will review
de novo. See Thomison, 858 N.E.2d at 1055.
In support of his contention that his right to move the trial court to restrict his
criminal records survived the Legislature’s repeal of Indiana Code § 35-38-8-3, Alden
cites Gosnell v. Ind. Soft Water Serv., Inc., 503 N.E.2d 879, 880 (Ind. 1987), superseded
by statute on other grounds, for the principle that legislative changes should be applied
prospectively, rather than retroactively. However, the State correctly notes that Gosnell
concerned the issue of retroactive application after the enactment of a new statute rather
than the repeal of a statute. Instead, we find Indiana Code § 1-1-5-6 dispositive. Section
1-1-5-6 “applies to the repeal of a statute or part of a statute that has expired,” and
provides that “[t]he repeal does not affect the validity of an action taken under the statute
or part of the statute before its expiration.” I.C. § 1-1-5-6. While Indiana courts have
never interpreted this provision of the Indiana Code, its plain language indicates that a
party has a right to pursue an action allowed by statute even if that statute is later
repealed, as long as the party undertakes the action prior to the repeal. Accordingly,
because Alden filed his motion before the Legislature repealed Indiana Code § 35-38-8-3,
we conclude that the repeal did not affect the validity of his action. Thus, the trial court
abused its discretion when it denied his motion on the basis that the Legislature had
repealed the statute. We remand to the trial court for the trial court to consider the merits
of Alden’s motion.
Reversed and remanded.
FRIEDLANDER, J., and MATHIAS, J., concur.
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