Michael J. Gilliam II v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 28 2018, 10:59 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jon C. Spurr Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael J. Gilliam II, February 28, 2018
Appellant-Defendant, Court of Appeals Case No.
84A01-1707-XP-1754
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael Rader,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D05-1701-XP-77
Altice, Judge.
Case Summary
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[1] Michael J. Gilliam II appeals the trial court’s summary denial of his petition to
expunge records related to his 2000 convictions for Class C felony operating a
motor vehicle while intoxicated causing death and Class C felony driving while
suspended resulting in death.
[2] We affirm.
Facts & Procedural History
[3] In 2000, Gilliam pled guilty to the above Class C offenses and was sentenced to
concurrent four-year terms of imprisonment with two years suspended. Gilliam
served his executed term on in-home detention and then successfully completed
probation in January 2005.
[4] On January 6, 2017, Gilliam petitioned the trial court to expunge his
convictions and seal the record. The State did not consent to expungement of
these records and, in fact, filed a written objection on May 2, 2017. Shortly
thereafter, the trial court issued its order denying Gilliam’s petition pursuant to
Ind. Code § 35-38-9-5(a)(2).
[5] Gilliam filed, on May 12, 2017, what he styled as a “Motion to Reconsider”,
along with a response to the State’s written objection. Appellant’s Appendix at
29. The trial court held a hearing on Gilliam’s motion and, after taking the
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matter under advisement, denied the motion on June 30, 2017. Gilliam filed
his notice of appeal on July 27, 2017.1
Discussion & Decision
[6] Under Indiana Code Chapter 35-38-9, criminal records may be expunged for
certain qualifying offenses, and the exclusions and requirements for
expungement vary based on the level or type of offense for which the person
was convicted. See I.C. § 35-38-9-2 (misdemeanors); I.C. § 35–38–9–3 (Class D
or Level 6 felonies); I.C. § 35-38-9-4 (other felonies except, among other
exclusions, “a felony that resulted in serious bodily injury to another person”);
I.C. § 35-38-9-5 (offenses committed by elected officials while in office and
felonies that resulted in serious bodily injury). Depending on the offense,
expungement may be either mandatory or discretionary upon certain findings
by the trial court. Key v. State, 48 N.E.3d 333, 336 (Ind. Ct. App. 2015).
[7] Gilliam’s arguments on appeal are all based on the misguided notion that I.C.
§ 35-38-9-4 rather than I.C. § 35-38-9-5 applies to his petition for expungement.
Gilliam recognizes that under the latter section he would be required to provide
1
The State contends that the appeal is untimely because Gilliam’s motion to reconsider did not toll the time
for filing the notice of appeal. We decline to favor form over substance. Gilliam’s motion was filed after
entry of a final judgment and, though titled otherwise, clearly constituted a motion to correct error. See
Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998) (“although substantially the same as a
motion to reconsider, a motion requesting the court to revisit its final judgment must be considered a motion
to correct error”); see also Snyder v. Snyder, 62 N.E.3d 455, 458 (Ind. Ct. App. 2016) (“motions to correct error
are proper only after the entry of final judgment; any such motion filed prior to the entry of final judgment
must be viewed as a motion to reconsider”). But see Scatterfield v. State, 30 N.E.3d 1271 (Ind. Ct. App. 2015)
(treating a motion to reconsider entered after a final judgment as titled). We conclude that Gilliam’s notice
of appeal was timely filed.
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the trial court with the prosecuting attorney’s written consent to the
expungement, which he has been unable to obtain.
[8] The less onerous section 4 expressly excludes its application to “[a] person
convicted of a felony that resulted in serious bodily injury to another person.”
I.C. § 35-38-9-4(b)(3). On the other hand, section 5 applies to “a person
convicted of a felony that resulted in serious bodily injury to another person.”
I.C. § 35-38-9-5(a)(1). It is undisputed that Gilliam’s offenses resulted in the
death of another person. We find disingenuous Gilliam’s argument that death
is not included within the definition of serious bodily injury. “Serious bodily
injury” is statutorily defined to include “bodily injury that creates a substantial
risk of death or that causes…permanent or protracted loss or impairment of the
function of a bodily member or organ”. Ind. Code § 35-31.5-2-292(4). “Case
law has determined that death falls within the category of serious bodily
injury.” State v. Lewis, 883 N.E.2d 847, 851 (Ind. Ct. App. 2008) (citing Nelson
v. State, 664 N.E.2d 386, 388 (Ind. Ct. App. 1996) (“the bodily injury inflicted
caused the victim permanent unconsciousness and the permanent loss of the
function of all bodily members and organs”), trans. denied).
[9] The trial court properly applied I.C. § 35-38-9-5 to Gilliam’s petition. The
petition did not include an attached copy of the prosecuting attorney’s written
consent, as required by I.C. § 34-38-9-8(b)(11). Thus, the trial court was
permitted to summarily deny the petition without a hearing. See I.C. § 35-38-9-
9(b). Moreover, the trial court had no discretion to grant the petition without
the written consent of the prosecuting attorney. See I.C. § 35-38-9-5(e)(5).
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[10] Judgment affirmed.
[11] May, J. and Vaidik, C.J., concur.
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