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., Schererville, Indiana.
ATTORNEY FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, HENRY A. FLORES, JR., Deputy Attorney General, Indianapolis, Indiana.
VAIDIK, Chief Judge. RILEY, J., and MAY, J., concur.
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 his probation terms. 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 former Indiana Code section 35-38-9-9(d), which required a trial court to consider a victim's statement before deciding on expungement. We determine that the word "shall" in Indiana Code section 35-38-9-2(d) is mandatory language requiring expungement. And such an interpretation does not render former Indiana Code section 35-38-9-9(d) meaningless because that section applied 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 his probation terms. 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 entered judgment 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. When Taylor filed his expungement petition, Indiana Code section 35-38-9-2 (Supp. 2013), which applies to misdemeanor convictions, provided:
(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 vehicles; and
(4) the files of any other person who provided treatment or services to the petitioning person under a court order;
that relate to the person's misdemeanor conviction.
(c) A person who files a petition to expunge conviction records shall pay the filing fees required for filing a civil action, and the clerk shall distribute the fees as in the case of a civil action. A person who files a petition to expunge conviction records may not receive a waiver or reduction of fees upon a showing of indigency.
(d) If the court finds by clear and convincing evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person does not have an existing or pending driver's license suspension;
(4) the person has successfully completed the person's sentence, including any term of supervised release, and satisfied all other obligations placed on the person as part of ...