The statute in effect when a man petitioned to have his Class D felony conviction records expunged said the trial court “shall order” the expungement if all statutory requirements have been met. As a result, the trial court erred in denying Michael Kevin Mallory’s petition based on testimony of his victims.
In 2000, Mallory pleaded guilty to two counts of Class D felony theft and successfully completed the obligations of his sentence in 2003. In November 2013, he sought to expunge his conviction records. He met all the statutory requirements in place at the time, so the trial court should have expunged his records based on the “shall order” language in I.C. 35-38-9-3.
But at the expungement hearing, his victims testified that they wanted the trial court to deny his petition. The judge found I.C. 35-38-9-3 to be in conflict with I.C. 35-38-9-9(d), which at the time, allowed a victim to submit an oral or written statement in support or in opposition of the petition at the time of the hearing. The statute also said, “The court shall consider the victim’s statement before making its determination,” language that has been removed by an amendment in the 2014 legislative session.
“It is well settled that the use of the word ‘shall’ is construed as ‘mandatory language creating a statutory right to a particular outcome after certain conditions are met,’” Judge Cale Bradford wrote in Michael Kevin Mallory v. State of Indiana, 20A03-1403-MI-76. “Therefore, we agree with Mallory that Indiana Code section 35-38-9-3(e) unambiguously requires expungement if all statutory requirements are met.”
The judges remanded with instructions to grant Mallory’s petition.