Reversal: Burglary conspiracy expungement petition wrongly dismissed 

A man’s petition for expungement of his criminal record has been reinstated after the Indiana Court of Appeals ruled Wednesday that a trial court erred in dismissing it.

When Brian Allen was 19 years old, he and three other friends conspired to burglarize the home of a couple in West Harrison in southeast Indiana. During the 2002 crime, Allen and another man waited outside the home as “lookouts,” while the two other men entered the house. The men who entered the house hit homeowner Larry Pohlgeers on the head repeatedly with a lead pipe, also hitting Judith Pohlgeers.

After various charges were dismissed as part of a plea agreement, Allen ultimately pleaded guilty to Class B felony conspiracy to commit burglary in 2003 and was sentenced to 16 years in prison with eight years suspended. His sentence was later modified, and after serving nearly three years in prison, Allen was placed on probation. He successfully completed probation and was eventually released from it in 2015.

However, when Allen filed an expungement petition in 2018 pursuant to Indiana Code Section 35-38-9-4, the Dearborn Superior Court denied his request, stating that based on the judge’s review of the case file, “it was bad. And I think it was real bad.”

Upon finding Allen to have met the qualifications for expungement listed in subsections (c) and (e) of the statute, the Indiana Court of Appeals considered the parties’ disputed question of whether Allen is ineligible for expungement under subsection (b)(3). That subsection excludes persons “convicted of a felony that resulted in serious bodily injury to another person.”

On appeal, both the state and trial court asserted Allen is ineligible because the facts surrounding the incident that resulted in his conviction included serious bodily injury to the victims. However, Allen and the Indiana University Robert H. McKinney School of Law Civil Practice Clinic, serving as amicus curiae, argued that Allen is eligible because no serious bodily injury was included in his crime.

“Here, the charges against Allen that involved bodily injury were all dismissed under the plea agreement. Allen was only convicted of conspiracy to commit burglary under subsection (1)(B) of Indiana Code Section 35-43-2-1, i.e., breaking and entering the dwelling of another. He was not convicted under subsection (2) of the burglary statute, i.e., breaking and entering the building or structure of another that results in bodily injury or serious bodily injury,” Judge L. Mark Bailey wrote for the appellate court.

“Because Allen was not ‘convicted of a felony that resulted in serious bodily injury to another person,’ he cannot be excluded from eligibility for expungement on that basis. And since that was the only apparent basis for the trial court’s denial of Allen’s request for expungement, the trial court was in error,” it concluded.

In a footnote, the appellate panel noted that the trial court order denying Allen’s expungement did not state its reasoning for doing so. The opinion also noted that victim Larry Pohlgeers, who has since died, had previously told the court at Allen’s sentence modification hearing that he believed Allen deserved a break and had “learned his lesson.”

“However, from the remarks the trial court made at the hearing, it appears the expungement was denied due to the ‘bad’ facts that the Pohlgeers were injured at the time of the crime,” the footnote says.

The appellate court therefore reversed the denial of Allen’s expungement request in Brian Allen v. State of Indiana, 19A-XP-01013.

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