COA reverses, orders Tippecanoe County expungement

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A man whose misdemeanors were expunged in two of three counties where he was convicted will now receive an expungement in the third county after the Indiana Court of Appeals reversed the trial court’s expungement denial.

In Pranav Mishra v. State of Indiana, 20A-XP-1726, Pranav Mishra was convicted of three misdemeanors in three Indiana counties over a nine-year period: Class A misdemeanor public indecency in 2007 in Tippecanoe County, Class B misdemeanor reckless driving in 2009 in Hamilton County, and Class A misdemeanor operating while intoxicated in 2016 in Monroe County. The Monroe County prosecutor in March 2020 agreed to allow Mishra to petition for expungement outside of the five-year statutory waiting period, prompting Mishra to file for expungement in all three counties.

The Tippecanoe Superior Court denied Mishra’s petition in July 2020 because he had been convicted of a crime within the last five years — specifically, the Monroe County conviction, which at the time had not yet been expunged. The Monroe Circuit Court granted Mishra’s petition in August 2020, and Mishra refiled the Tippecanoe County petition, but the Lafayette court again denied the expungement.

In a footnote, the Indiana Court of Appeals noted the Hamilton Superior Court agreed to the expungement after the Monroe County ruling. Likewise, in a Tuesday opinion, the Indiana Court of Appeals ordered the Tippecanoe Superior Court to grant Mishra’s petition, noting both he and the state endorsed that outcome.

“As both Mishra and the State note, Indiana Code section 35-38-9-10(e) generally provides that a ‘person whose record is expunged shall be treated as if the person had never been convicted of the offense,’” Chief Judge Cale Bradford wrote. “Recognizing that there are a few enumerated exceptions to this general rule, the State further notes that ‘[n]one of the enumerated exceptions authorize a court to consider an expunged conviction in the context of an expungement proceeding for purposes of determining whether the person has a conviction within the previous five years.’

“We further agree with the State that under the doctrine of expressio unius est exclusio alterius, the specification of some exceptions in a statute means that other matters not specified are excluded, and courts are not free to graft additional exceptions onto a statute,” Bradford wrote, referencing A.A. v. Eskenazi Health/Midtown CMHC, 97 N.E.3d 606, 614 (Ind. 2018).  “The trial court therefore erred when it considered Mishra’s previously-expunged 2016 Monroe County conviction in relation to Mishra’s petition to expunge his 2007 Tippecanoe County conviction.”

Bradford also pointed to I.C. 35-38-9-2(e), which holds that a trial court “shall” grant an expungement if the statutory period has elapsed or the prosecutor has agreed to an earlier filing, no charges are pending, the person has paid all fees, fines, costs and restitution, and the person has not been convicted of a crime within the previous five years. Those requirements are satisfied in Mishra’s case, the chief judge wrote, so the use of the word “shall” means the grant of an expungement is compulsory.

The case was thus remanded with instructions for the trial court to expunge Mishra’s 2007 Tippecanoe County conviction.

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