APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Salvador Vasquez, Judge Cause No. 45G01-0309-FB-49.
ATTORNEY FOR APPELLANT: STEPHEN R. MOELL Westland Kramer & Bennett, P.C.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana HENRY A. FLORES, JR. Deputy Attorney General.
VAIDIK, Chief Judge.
Jason Taylor pled guilty to a Class D felony and was sentenced to eighteen months all suspended to probation in August 2004. Under his plea agreement, he was permitted to petition the court to reduce his conviction to a Class A misdemeanor if he successfully completed the terms of his probation. After successfully completing eighteen months of probation, he petitioned the trial court and it entered judgment as a Class A misdemeanor. In 2013, the Indiana legislature passed Indiana Code chapter 35-38-9, which allows convicted criminals to petition for expungement of previous crimes. Taylor appeals the denial of his petition for expungement under Indiana Code section 35-38-9-2. Although Taylor met all of the requirements in Indiana Code section 35-38-9-2(d), the trial court denied Taylor's petition for expungement. Indiana Code section 35-38-9-2 states that if all conditions of the statute are met, the trial court shall order the conviction expunged. Nonetheless, the trial court denied the expungement relying on Indiana Code section 35-38-9-9(d), which requires a trial court to consider a victim's statement before deciding on expungement. We determine that the word "shall" in Section 35-38-9-2(d) is mandatory language requiring expungement. And such an interpretation does not render Section 35-38-9-9(d) meaningless because that section applies to other parts of the statute where the trial court does have discretion to deny a petition for expungement. Therefore, we reverse the trial court.
Facts and Procedural History
In August 2004, Taylor pled guilty to Class D felony sexual misconduct with a minor. In the plea agreement, Taylor agreed to a suspended sentence of eighteen months. The plea agreement also allowed Taylor to petition for misdemeanor treatment if he successfully completed all of the terms of his probation. After being satisfactorily discharged from probation, Taylor petitioned the court to enter judgment on his conviction as a Class A misdemeanor. The trial court granted Taylor's petition and his conviction was entered as a Class A misdemeanor.
Effective July 1, 2013, the Indiana General Assembly enacted Public Law 159-2013, which codified a new chapter in Indiana Code Title 35, Article 38, entitled, "Chapter 9. Sealing and Expunging Conviction Records." P.L. 159-2013, Sec. 4. The new law allows a person convicted of a crime to have his record expunged. Indiana Code section 35-38-9-2 applies to misdemeanor convictions:
(a) This section applies only to a person convicted of a misdemeanor, including a Class D felony reduced to a misdemeanor.
(b) Not earlier than five (5) years after the date of conviction (unless the prosecuting attorney consents in writing to an earlier period), the person convicted of the misdemeanor may petition the sentencing court to expunge conviction records contained in:
(1)a court's files;
(2) the files of the department of correction;
(3) the files of the bureau of motor ...