Philip H. Chamberlain v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Sep 12 2014, 8:52 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
PHILIP H. CHAMBERLAIN GREGORY F. ZOELLER
Clear Creek, Indiana Attorney General of Indiana
HENRY A. FLORES, JR.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PHILIP H. CHAMBERLAIN, )
)
Appellant-Petitioner, )
)
vs. ) No. 53A01-1309-CR-425
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Mary Ellen Diekhoff, Judge
Cause No. 53C05-0505-FC-296
September 12, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Philip Chamberlain appeals the trial court’s denial of his verified petition to
expunge his arrest record. However, Chamberlain did not serve the Attorney General as
required by Indiana Trial Rule 4.6(A)(3), and we do not reach the merits of his appeal
because the trial court’s order is void for lack of personal jurisdiction.
FACTS
On May 19, 2005, Chamberlain was charged with the offer or sale of an
unregistered security, a class C felony, and with committing fraudulent or deceitful acts
with the offer, sale, or purchase of a security, a class C felony. On November 9, 2006,
the charges were dismissed upon the State’s motion. The specific reason for the State’s
dismissal is not in the record.
On March 11, 2013, Chamberlain filed a petition to restrict his arrest record under
Indiana Code section 35-38-5-5.5. The trial court granted his petition on May 30, 2013.
On June 24, 2013, Chamberlain filed a verified petition to expunge his arrest record
under Indiana Code section 35-38-5-1.1 He served copies of the petition on the Indiana
State Police Central Records Division, the Monroe County Prosecutor’s Office, and the
Monroe County Sheriff’s Department. He did not serve the Attorney General.
On July 12, 2013, the Monroe County Prosecutor’s Office filed its response in
opposition to Chamberlain’s petition. On July 16, 2013, the trial court denied
Chamberlain’s petition.
Chamberlain now appeals, and the State cross-appeals.
1
Indiana Code section 35-38-5-1 was repealed on March 26, 2014.
2
DISCUSSION AND DECISION
The State argues that the trial court did not have jurisdiction over Chamberlain’s
motion. It notes that Chamberlain failed to serve the Attorney General, which resulted in
ineffective service of process.
Indiana Trial Rule 4.6(A)(3) provides that service may be made, “[i]n the case of a
state governmental organization[,] upon the executive officer thereof and also upon the
Attorney General.” Our Supreme Court has held that, despite use of the word “may” in
the rule, service upon the Attorney General is mandatory. See Evans v. State, 908 N.E.2d
1254, 1258 (Ind. Ct. App. 2009) (citing Smock v. State, 257 Ind. 112, 272 N.E.2d 611,
613 (1971)). As Professor William F. Harvey has instructed,
Normally, in suing a governmental agency or organization, service must be
made on the director or head of that agency, and upon the Attorney General
of Indiana. If the Attorney General is not served, then the time for an
Answer will not commence until that occurs. Indiana law is very firm on
the duty to serve the Attorney General, in addition to the head of agency[.]
1 William F. Harvey, Indiana Practice: Rules of Procedure Annotated § 4.6 at 341 (3d ed.
1999).
Because Chamberlain did not serve the Attorney General, his service of process
was ineffective in this case. Consequently, the trial court did not have personal
jurisdiction over the respondents and could not enter any order in this case. See Guy v.
Comm’r of Ind. Bureau of Motor Vehicles, 937 N.E.2d 822, 826 (Ind. Ct. App. 2010).
The trial court’s order is void.
3
The judgment of the trial court is vacated.
KIRSCH, J., and ROBB, J., concur.
4