Divided ruling: Felony reduced to misdemeanor means longer expungement wait

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Editor’s note: This article has been revised to replace references to the expungement plaintiff’s name with his initials after the Indians Supreme Court ruled in his favor.

The Indiana Court of Appeals on Friday asked the Indiana General Assembly for guidance as it sharply divided over whether minor felonies reduced to misdemeanor convictions should trigger new five-year waiting periods for people seeking to expunge their criminal records. The majority ruled they should, a result the dissenting judge called “unjust and ill-advised.”

The appellate panel affirmed the denial of an expungement petition that was filed last year in Elkhart Superior Court. N.G. was convicted of Class D felony theft in 13 years ago, and in 2016, he successfully petitioned to have the conviction reduced to a misdemeanor. But when he filed an expungement petition in 2018, the trial court denied it, ruling that the entry of the misdemeanor conviction meant N.G. had to wait five years from the date the conviction was reduced for relief.

Appellate judges Terry Crone and James Kirsch agreed in N.G v. State of Indiana, 19A-XP-637. “In an issue of first impression, we conclude that (Indiana Code) Section 35-38-9-2(c)’s requirement that a person wait at least five years ‘after the date of conviction’ before petitioning a court for expungement means five years from the date of the misdemeanor conviction, and not, as (N.G.) urges, the date of the class D felony conviction. Therefore, we affirm,” Crone wrote for the majority.

The majority and Judge John Baker’s dissent focused on elements of statutory construction to construe whether N.G. and others similarly situated would qualify for an expungement, but the jurists came to completely opposite conclusions.

“We acknowledge that there is an incongruity between the waiting period required for expungement of conviction records for a class D felony and the longer waiting period required for a class D felony conviction converted to a class A misdemeanor,” Crone wrote. “Under Section 35-38-9-3(c), a person convicted of a class D felony must wait eight years after the date of conviction to petition a court for expungement. However, a person who has a class D felony conviction converted to a class A misdemeanor will have to wait longer. If a person seeks to convert a class D felony conviction to a class A misdemeanor, Section 35-50-7-2(d) first requires the person to wait three years after completing his or her sentence and satisfying all obligations before petitioning to convert the class D felony conviction to a class A misdemeanor. Then, Section 35-38-9-2(c) requires that the person wait five more years before petitioning for expungement. Thus, the waiting period required to petition for expungement for persons with converted class D felonies will be greater than eight years depending on the length of the person’s sentence and the time it takes him or her to satisfy the obligations imposed as part of the sentence. This incongruity is one that our legislature might consider addressing.”

Nevertheless, the majority concluded that by virtue of the conversion of his Class D felony conviction, “Because N.G. was convicted of class A misdemeanor theft in August 2016, five years after the date of his conviction have not elapsed, and therefore he is not entitled to expungement of his misdemeanor conviction records under Section 35-38-9-2 at this time.”

Baker would remand the matter to the Elkhart Superior Court with instructions to grant the expungement, he wrote in dissent, suggesting the absurd result doctrine might apply in N.G.’s case.

“(A)s a general rule, ‘we presume that the General Assembly intended its language to be applied logically and so as not to cause an unjust or absurd result,’” Baker wrote, citing Marshall v. State, 52 N.E.3d 41, 43 (Ind. Ct. App. 2016). Additionally, citing Cline v. State, 61 N.E.3d 360, 362 (Ind. Ct. App. 2016), he noted, “expungement statutes are inherently remedial and, as such, should be liberally construed to advance the remedy for which they were enacted.”

“Our courts have not addressed whether, in cases where a class D felony conviction has been converted to a class A misdemeanor, ‘the date of conviction’ for purposes of the five-year waiting means the date of the class D felony conviction or the date the class D felony conviction was converted to a class A misdemeanor,” Baker noted.

“I believe that the position advanced by the State, and adopted by the majority, leads to an illogical result — a person who has a Class D felony conviction that was converted to a Class A misdemeanor has to wait longer for expungement than someone who merely has a Class D felony conviction. I simply cannot accept that the General Assembly intended this result, which is both unjust and ill advised. Moreover, given the mandate that we liberally construe the expungement statutes, in my opinion the result is doubly wrong.”

Baker did agree with the majority in one regard, writing in a footnote, “I certainly join in the majority’s wise suggestion that the legislature consider addressing this unclear statutory language.”

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