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Pittman v. State

Court of Appeals of Indiana

April 30, 2014

AUSTIN G. PITTMAN, Appellant/Cross-Appellee-Petitioner,
v.
STATE OF INDIANA, Appellee/Cross-Appellant-Respondent

APPEAL FROM THE BOONE SUPERIOR COURT. The Honorable Rebecca McClure, Judge. Cause No. 06D02-0010-CM-654.

ATTORNEYS FOR APPELLANT: ROBERT M. OAKLEY, DANIEL K. DILLEY, Dilley & Oakley, P.C., Carmel, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, HENRY A. FLORES, JR., Deputy Attorney General, Indianapolis, Indiana.

MATHIAS, Judge. BRADFORD, J., and PYLE, J., concur.

OPINION

Page 180

MATHIAS, Judge.

Austin G. Pittman (" Pittman" ) filed a petition in Boone Superior Court to restrict access to the record of his criminal conviction, which the trial court denied. Pittman appeals and presents one issue,

Page 181

which we restate as: whether the statute regarding the restriction of access to criminal records prohibited the trial court from restricting access to Pittman's record because Pittman had violated the terms of his probation in the conviction at issue. The State cross-appeals and claims that this court is without jurisdiction to consider Pittman's appeal. Concluding that we have jurisdiction and that the trial court did not err in denying Pittman's petition, we affirm.

Facts and Procedural History

On December 11, 2000, Pittman was convicted of Class C misdemeanor operating a vehicle while intoxicated (" OWI" ) with a blood alcohol concentration (" BAC" ) of .10 or more. The trial court subsequently sentenced Pittman to sixty days, with credit for time served; the trial court suspended the remaining portion of the sentence, and ordered Pittman to serve one year of supervised probation. The terms of Pittman's probation included that he abstain from the consumption of alcohol and obey all laws.

On March 20, 2001, the State filed a notice of probation violation alleging that Pittman had been arrested and charged in another cause with Class D felony OWI with a BAC of .10 or more. Pittman was subsequently convicted of this charge, and on June 26, 2001, admitted to having violated the terms of his probation in the first cause. As a result, the trial court extended Pittman's probation for one year. On July 10, 2002, Pittman was released from probation.

More than ten years later, on March 21, 2013, Pittman filed a verified petition to restrict access to the record of his conviction for Class C misdemeanor OWI. Pittman served a copy of his petition on the local prosecutor's office. The trial court held a hearing on Pittman's petition on May 2, 2013, and four days later entered an order denying Pittman's petition. The trial court concluded that Pittman was not eligible for the relief he sought because he had been convicted of a subsequent OWI offense after his initial OWI conviction.

Pittman filed a notice of appeal on May 23, 2013, and the notice of completion of clerk's record was entered on May 29, 2013, at which point this court acquired jurisdiction. See Ind. Appellate Rule 8 (" The Court on Appeal acquires jurisdiction on the date the Notice of Completion of Clerk's Record is noted in the Chronological Case Summary." ). Pittman filed his Appellant's Brief on August 22, 2013, but served a copy of his brief only on the local prosecutor's office, not the office of the Indiana Attorney General. As a result, the State did not file an Appellee's Brief. Accordingly, this court ordered Pittman to serve a copy of his brief on the Attorney General and ordered the Attorney General to file a brief no later than January 29, 2014. Instead of filing its brief on that date, the State, now represented by the Attorney General, filed a motion to dismiss Pittman's appeal for lack of jurisdiction. In the last sentence of its motion to dismiss, the State requested that, if this court denied the motion to dismiss, that the State be given fifteen additional days to respond to Pittman's brief. We subsequently denied the State's motion to dismiss, but granted the State additional time, until March 5, 2014, to file its brief. On that date, the State finally filed its brief.

I. State's Cross-Appeal

In its cross-appeal, the State repeats the argument made in its earlier motion to dismiss, i.e., that this court is without jurisdiction to consider Pittman's appeal. The State claims that, because Pittman did not serve his petition on the Attorney General and the ...


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