Summary
In Kelley, 166 N.E.3d at 938-39, another panel of this Court held that the petitioner's murder conviction rendered him ineligible for expungement of any of his felony convictions.
Summary of this case from Drankus v. StateOpinion
Court of Appeals Case No. 20A-XP-1413
03-26-2021
Michael KELLEY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent
Appellant Pro Se: Michael Kelley, Oakdale, Louisiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana
Appellant Pro Se: Michael Kelley, Oakdale, Louisiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana
May, Judge.
[1] Michael Kelley, an individual currently incarcerated at the Oakdale Federal Correctional Institution in Louisiana, appeals the denial of his petition to expunge all records of his Indiana convictions. We affirm.
Facts and Procedural History
[2] Between 1975 and 2005, as an adult in Indiana, Kelley accumulated numerous felony convictions, including a conviction of murder in 1982 and at least one Class D felony conviction. At some point, Kelley moved away from Indiana. Federal authorities arrested Kelley in Texas in 2011 and transferred him to Missouri to face federal criminal charges. In 2014, Kelley was convicted of being a felon in possession of a firearm and distribution of fentanyl in the United States District Court for the Western District of Missouri, and the court sentenced him to a fifteen-year and eight-month term of imprisonment.
Ind. Code § 35-42-1-1 (1977).
It is unclear from the record the exact number of Kelley's felony convictions.
[3] On January 13, 2020, Kelley filed a petition in Lake Superior Court seeking to expunge "any and all criminal records." (Appellee's App. Vol. II at 10.) The State objected to Kelley's petition for expungement of his felony conviction records on the grounds that a murder conviction is not eligible for expungement and that less than eight years had elapsed between Kelley's federal conviction and his filing of the petition for expungement. The trial court denied Kelley's petition for expungement of his felony convictions. Kelley subsequently filed a motion to correct error, which the court summarily denied.
The trial court did grant Kelley's petition with respect to a single misdemeanor case. The State did not object to expungement of that conviction below, and the State does not ask us to reverse that portion of the trial court's order.
Discussion and Decision
[4] Initially, we note that Kelley proceeds pro se. A litigant is not given special consideration by virtue of his pro se status. Sidener v. State , 446 N.E.2d 965, 966 (Ind. 1983). Rather, "[i]t is well settled that pro se litigants are held to the same legal standards as licensed attorneys. This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so." Basic v. Amouri , 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016) (internal citations omitted), reh'g denied.
[5] Generally, we review the denial of a petition for expungement for an abuse of discretion. Allen v. State , 159 N.E.3d 580, 583 (Ind. 2020). An abuse of discretion occurs if the trial court's decision is clearly against the facts and circumstances before it. Id. However, when the matter turns on a question of statutory interpretation, we employ a de novo standard of review. Id. "Statutory interpretation is a function for the courts, and our goal in statutory interpretation is to determine, give effect to, and implement the intent of the legislature as expressed in the plain language of its statutes." Clark Cty. Drainage Bd. v. Isgrigg , 966 N.E.2d 678, 681 (Ind. Ct. App. 2012). "When a statute is clear and unambiguous, we apply the rules of statutory construction and interpret statutory language in its plain, ordinary, and usual sense." Cty. of Lake v. Pahl , 28 N.E.3d 1092, 1104 (Ind. Ct. App. 2015), reh'g denied, trans. denied.
[6] Indiana Code section 35-38-9-3 concerns the expungement of convictions of a Class D felony (for a crime committed before July 1, 2014) or a Level 6 felony (for crimes committed after July 1, 2014). It provides, in relevant part:
(b) This section does not apply to the following:
* * * * *
(2) A sex or violent offender (as defined in IC 11-8-8-5 ).
(3) A person convicted of a felony that resulted in bodily injury to another person.
* * * * *
(5) A person convicted of an offense described in:
(A) IC 35-42-1;
* * * * *
(e) If the court finds by a preponderance of the evidence that:
* * * * *
(4) the person has not been convicted of a crime within the previous eight (8) years (or within a shorter period agreed to by the prosecuting attorney if the prosecuting attorney has consented to a shorter period under subsection (c));
the court shall order the conviction records described in subsection (c), including any records relating to the conviction and any records concerning a collateral action, expunged in accordance with section 6 of this chapter.
Ind. Code § 35-38-9-3. Indiana Code section 35-38-9-4 governs the expungement of higher felony convictions. Similarly, it states, in relevant part:
(b) This section does not apply to the following:
* * * * *
(2) A sex or violent offender (as defined in IC 11-8-8-5 ).
(3) A person convicted of a felony that resulted in serious bodily injury to another person.
(4) A person convicted of a felony that resulted in death to another person.
* * * * *
(6) A person convicted of an offense described in:
(A) IC 35-42-1;
* * * * *
(e) If the court finds by a preponderance of the evidence that:
* * * * *
(4) the person has not been convicted of a crime within the previous eight (8) years (or within a shorter period agreed by the prosecuting attorney if the prosecuting attorney has consented to a shorter period under subsection (c));
the court may order the conviction records ... marked as expunged in accordance with section 7 of this chapter.
[7] Kelley contends that he is eligible for expungement of his Indiana felony convictions because, due to his continuous incarceration, he has not engaged in any criminal activity since his 2011 arrest. However, the larger impediment to Kelley's petition is that neither Indiana Code section 35-38-9-3 nor -4 allows murderers to petition for expungement. A person convicted of murder is a "sex or violent offender," Ind. Code § 11-8-8-5(20) (2018) (defining "sex or violent offender" as including those who commit murder), and both section 3 and section 4 explicitly state they do not apply to a "sex or violent offender[.]" Ind. Code § 35-38-9-3(b)(2) & Ind. Code § 35-38-9-4(b)(2). Additionally, murder is an offense defined in title 35, article 42, chapter 1 of the Indiana Code and includes the element of killing another person, Ind. Code § 35-42-1-1, which also exclude Kelley from expungement pursuant to the explicit language of the relevant statutes. See Ind. Code § 35-38-9-3(b)(4) (excluding those convicted of "a felony that resulted in death to another person"); Ind. Code § 35-38-9-3(b)(5)(A) (excluding those convicted of a crime defined in Ind. Code 35-42-1); & Ind. Code § 35-38-9-4(b)(6)(A) (excluding those convicted of a crime defined in Ind. Code 35-42-1). Therefore, Kelley's murder conviction renders him ineligible for expungement of his felony convictions. See Burton v. State , 71 N.E.3d 24, 26-27 (Ind. Ct. App. 2017) (holding "sex or violent offender" was not eligible to have two Class D felony convictions expunged).
This statute was amended effective July 1, 2020, but the modifications to the statute are not material to this appeal.
Conclusion
[8] The expungement statutes render Kelley ineligible because of his murder conviction, and therefore, the trial court did not abuse its discretion in denying his expungement petition. Thus, we affirm the trial court.
[9] Affirmed.
Kirsch, J., and Bradford, C.J., concur.