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D.A. v. State

Court of Appeals of Indiana

December 31, 2015

D.A., Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent

Page 581

          Appeal from the Madison Circuit Court. The Honorable Dennis D. Carroll, Judge. Trial Court Cause No. 48C06-1408-MI-379.

         ATTORNEYS FOR APPELLANT: Andrew M. Barker, Russell B. Cate, Campbell Kyle Proffitt LLP, Noblesville, Indiana.

         ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, Indiana.

         Najam, Judge. Kirsch, J., concurs. Barnes, J., dissents with separate opinion.

          OPINION

Page 582

          Najam, Judge.

         Statement of the Case

         [¶1] D.A. appeals the trial court's denial of his request to apply an expungement order to the records of a civil forfeiture proceeding that arose from the same facts underlying his now-expunged convictions. D.A. raises a single issue for our review, which is an issue of first impression: whether our expungement statutes apply to the records of civil forfeiture proceedings. We hold that, on these facts, the trial court erred when it did not apply the expungement order to the records of D.A.'s civil forfeiture proceeding.[1]

         Facts and Procedural History

         [¶2] On May 9, 2002, the Madison County Drug Task Force (" MCDTF" ) set up a controlled drug buy in which a confidential informant purchased cocaine from D.A. The MCDTF set up additional controlled buys on May 15 and May 17. Subsequently, MCDTF officers arrested D.A. and seized $1,340 in United States currency from him. Six-hundred and twenty dollars were marked currency that the MCDTF had used in its controlled drug buys. D.A. used the remaining amount, $720, to facilitate the commission of D.A.'s dealing offenses, or that amount was the proceeds from those offenses.

         [¶3] Following his arrest, the State charged D.A. with dealing and possession offenses. On February 28, 2003, D.A. was convicted of dealing in marijuana, as a Class C felony, and possession of cocaine, as a Class C felony, under criminal cause number 48D01-0210-FB-490 (" FB-490" ). Meanwhile, the State also filed a civil forfeiture action against the $720 seized from D.A. during his arrest for the criminal

Page 583

offenses. The State's forfeiture action was filed under the miscellaneous criminal cause number 48D01-0206-MC-292 (" MC-292" ). Following D.A.'s convictions for the underlying offenses, on October 21, 2003, the trial court ordered the $720 forfeited either because D.A. had used that money to facilitate his commission of the underlying offenses or because that money was the proceeds from those offenses.

         [¶4] In August of 2014, D.A. filed a petition to expunge the records of his convictions in cause number FB-490. The trial court granted D.A.'s petition. Thirteen days later, D.A. requested the court to amend its expungement order to include and expunge the records of cause number MC-292, the civil forfeiture proceeding. After a hearing, the court denied D.A.'s request that the expungement order also be applied to the records of the civil forfeiture proceeding. This appeal ensued.

         Discussion and Decision

         Whether D.A. Procedurally Defaulted on His Request for the Trial Court to Extend its Expungement Order

         [¶5] D.A. appeals the denial of his request to extend the expungement order to the records of the civil forfeiture proceeding. However, we first discuss the State's assertion that D.A. procedurally defaulted on his request for the expungement of the civil forfeiture records. Although the State did not object to D.A.'s additional filing in the trial court, we generally may affirm the trial court's judgment on any basis supported by the record. E.g., Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind.Ct.App. 2009), trans. denied. With that general principle in mind, the State contends that this court should affirm the trial court's denial of D.A.'s request for " additional expungement," see Appellant's App. at 2, because D.A.'s request was equivalent to filing a second expungement petition, which is generally prohibited, see Ind. Code § 35-38-9-9(h) (2014).[2]

         [¶6] But we cannot agree with the State's premise that this is a valid basis on which this court may affirm the trial court's judgment. " It is well settled that a complaining party has a duty to direct the trial court's attention to a defective filing, and failure to raise an objection constitutes waiver on appeal." Handy v. P.C. Bldg. Materials, Inc., 22 N.E.3d 603, 607 n.4 (Ind.Ct.App. 2014) (citing Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990)), trans. denied. Moreover, a party " may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct." Id. (quotation marks omitted). Here, the State had the opportunity to object to D.A.'s additional filing, but it did not. Thus, this issue was not presented to the trial court. Indeed, in the trial court the State referred to D.A.'s filing as a motion to correct error, which is generally permitted under Indiana Trial Rule 59. See Tr. at 17. The State cannot now argue that the filing was defective. Handy, 22 N.E.3d at 607 n.4. In other words, the State cannot use its own failure to object, whether that failure was intentional or inadvertent, as a sword to preempt our review of D.A.'s appeal. We conclude that the State's argument regarding the timing

Page 584

of D.A.'s filing is not properly before us. Id.

         Statutory Interpretation

         [¶7] We thus turn to the merits of this appeal, which require us to interpret the Indiana Code.

Statutory interpretation is a function for the courts, and our goal in statutory interpretation is to determine, give effect to, and implement the intent of the legislature as expressed in the plain language of its statutes. State v. Prater, 922 N.E.2d 746, 749 (Ind.Ct.App. 2010), trans. denied. " The first rule of statutory construction is that '[w]ords and phrases shall be taken in their plain, or ordinary and usual, sense.'" Id. (quoting Ind. Code § 1-1-4-1(1)) (alteration original). Further, courts may not " engraft new words" onto a statute or add restrictions where none exist. Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013).
Statutory interpretation is a question of law and is reviewed de novo, or without deference to the trial court's interpretation. Curley v. Lake Cnty. Bd. of Elections & Registration, 896 N.E.2d 24, 34 (Ind.Ct.App. 2008), trans. denied. " When a statute has not previously been construed, our interpretation is controlled by the express language of the statute and the rules of statutory construction." Prater, 922 N.E.2d at 748. " If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning." Curley, 896 N.E.2d at 34 (quotations omitted). " If a statute is susceptible to multiple interpretations, we must try to ascertain the legislature's intent and interpret the statute so as to effectuate that intent." Id. (quotation omitted). " We review the statute as a whole and presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results." Prater, 922 N.E.2d at 748. " [W]e must consider not only what the statute says but what it does not say." Curley, 896 N.E.2d at 37. In other words, " we are obliged to suppose that the General Assembly chose the language it did for a reason." Prater, 922 N.E.2d at 750.

Fight Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798, 805-06 (Ind.Ct.App. 2015) (alterations in original).

         [¶8] The essential question in this appeal is whether our expungement statutes apply narrowly only to " conviction records" or apply more broadly to any records that " relate to . . . [a] conviction." See I.C. § 35-38-9-4(c). Our expungement statutes are located within Indiana Code Chapter 35-38-9, which is titled " Sealing and Expunging Conviction Records" and consists of eleven sections. Sections 1 through 5 of that Chapter permit arrestees and defendants to petition an Indiana trial court for expungement of certain records. For example, D.A. filed his petition under Section 4,[3] which in relevant part states:

(c) Not earlier than the later of eight (8) years from the date of conviction, or three (3) years from the completion of the person's sentence, unless the prosecuting attorney consents in writing to an earlier period, the person convicted of

Page 585

the felony may petition a court to expunge all ...


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