Lonnie L. Burton, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
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,
Vaidik, Chief Judge.
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.
and Procedural History
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. Id. at 5.
Burton, pro se, now appeals.
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.
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 ...