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Burton v. State

Court of Appeals of Indiana

February 3, 2017

Lonnie L. Burton, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Clark Circuit Court Trial Court Cause No. 10C03-1511-XP-36 The Honorable Joseph P. Weber, Judge

          Appellant Pro Se Lonnie L. Burton Aberdeen, Washington

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Kyle Hunter Deputy Attorney General Indianapolis, Indiana

          Vaidik, Chief Judge.

         Case Summary

         [¶1] Lonnie L. Burton petitioned to expunge two Class D felony convictions (theft and fraud) pursuant to Indiana Code section 35-38-9-3, and the State moved to dismiss, arguing that Burton is not eligible for expungement because he is a "sex or violent offender" based on other convictions. The trial court granted the State's motion to dismiss, and Burton appeals. Because the plain language of Section 35-38-9-3(b) provides that a "sex or violent offender" is not eligible for expungement of Class D/Level 6 felonies, we affirm the trial court.

         Facts and Procedural History

         [¶2] In November 2015, Burton filed a petition to expunge two 1992 Class D felony convictions (theft and fraud) from Clark Circuit Court pursuant to Section 35-38-9-3. Burton's petition listed all of his convictions, which include 1992 convictions for rape, child molestation, and sexual exploitation of a minor from the State of Washington and a 1994 conviction for rape from the State of Washington. Appellant's App. Vol. II p. 9. The State moved to dismiss Burton's expungement petition. Specifically, the State argued that Burton was not eligible to expunge his Class D felony convictions because Section 35-38-9-3 does not apply to a "sex or violent offender" and Burton is a "sex or violent offender" based on his State of Washington convictions. Id. at 14-15. The trial court granted the State's motion without holding a hearing.[1] Id. at 5.

         [¶3] Burton, pro se, now appeals.

         Discussion and Decision

         [¶4] Burton contends that the trial court erred in dismissing his expungement petition. By enacting the expungement statutes, our legislature intended to give individuals who have been convicted of certain crimes a second chance by providing an opportunity for relief from the stigma associated with their criminal convictions. Cline v. State, 61 N.E.3d 360, 362 (Ind.Ct.App. 2016). Because the expungement statutes are inherently remedial, they should be liberally construed to advance the remedy for which they were enacted. Id.

         [¶5] Here, Burton filed an expungement petition pursuant to Section 35-38-9-3. Under this section, a person convicted of a Class D felony (for a crime committed before July 1, 2014) or a Level 6 felony (for a crime committed after June 30, 2014) may petition for expungement eight years after the date of conviction (unless the prosecutor consents in writing to an earlier period). Ind. Code Ann. § 35-38-9-3(a), (c) (West Supp. 2016). If the trial court finds by a preponderance of the evidence that the requirements of subsection (e) have been met, it "shall" order expungement. I.C. § 35-38-9-3(e). Section 35-38-9-3, however, does not apply to:

(1) An elected official convicted of an offense while serving the official's term or as a ...

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