Court of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017 Page 1 of 6 A PPELLANT P RO S E Lonnie L. Burton Aberdeen, Washington A TTORNEYS FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Kyle Hunter Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA
Lonnie L. Burton, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff February 3, 2017 Court of Appeals Case No. 10A01-1606-XP-1327 Appeal from the Clark Circuit Court The Honorable Joseph P. Weber, Judge Trial Court Cause No. 10C03-1511-XP-36
Vaidik, Chief Judge.Court of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017 Page 2 of 6 

# Case Summary
[1] Lonnie L. Burton petitioned to expun ge two Class D felony convictions (theft and fraud) pursuant to Indiana Code se ction 35-38-9-3, and the State moved to dismiss, arguing that Burton is not el igible for expungement because he is a “sex or violent offender” based on other convictions. The trial court granted the State’s motion to dismiss, and Burt on appeals. Because the plain language of Section 35-38-9-3(b) provid es that a “sex or violent offender” is not eligible for expungement of Class D/ Level 6 felonies, we affirm the trial court. 

# Facts and Procedural History
[2] In November 2015, Burton filed a petition to expunge two 1992 Class D felony convictions (theft and fraud) from Clark Circuit Court pursuant to Section 35- 38-9-3. Burton’s petition listed all of his convictions, which include 1992 convictions for rape, child molestation, an d sexual exploitation of a minor from the State of Washington and a 1994 co nviction for rape from the State of Washington. Appellant’s App. Vol. II p. 9. The State moved to dismiss Burton’s expungement petition. Specific ally, the State argued that Burton was not eligible to expunge his Class D felo ny convictions because Section 35-38-9-3 does not apply to a “sex or violent offender” and Burt on is a “sex or violentCourt of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017 Page 3 of 6 offender” based on his State of Washington convictions. Id. at 14-15. The trial court granted the State’s moti on without holding a hearing. 1 Id. at 5.

[3] Burton, pro se, now appeals. 

# Discussion and Decision
[4] Burton contends that the trial court erred in dismissing his expungement petition. By enacting the expungement st atutes, our legislature intended to give individuals who have been convicted of certain crimes a second chance by providing an opportunity for relief fr om the stigma associated with their criminal convictions. Cline v. State , 61 N.E.3d 360, 362 (Ind. Ct. App. 2016). Because the expungement statutes are in herently remedial, they should be liberally construed to advance the re medy for which they were enacted. Id.

[5] Here, Burton filed an expungement peti tion pursuant to Section 35-38-9-3. Under this section, a person convicte d of a Class D felony (for a crime committed before July 1, 2014) or a Leve l 6 felony (for a crime committed after June 30, 2014) may petition for expun gement eight years after the date of

1 Burton, citing Indiana Code section 35-38-9-9(a), argues that the trial court erred by not holding a hearing in light of the State’s objection to his expungement pe tition. This Court has already examined this issue, concluding that according to Section 35-38-9-9(b), even if the State objects, the trial court may nevertheless summarily deny a petition if it is facially defectiv e or reveals that the petitioner is not eligible for expungement. Key v. State , 48 N.E.3d 333, 337-38 (Ind. Ct. App. 2015). Here, the State filed a motion to dismiss alleging that Burton is not eligible for expungem ent because he is a “sex or violent offender,” and the trial court granted the State’s motion . Accordingly, the trial court did not err by summarily denying Burton’s petition. Cf. id. at 338-39 (holding that summary denial was not appropriate because there was no evidence, for example, that “Key’s petition wa s filed too soon or that he was conv icted of a disqualifying offense”).Court of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017 Page 4 of 6 conviction (unless the prosecutor consents in writing to an earlier period). Ind. Code Ann. § 35-38-9-3(a), (c) (West Supp. 2016). If the trial court finds by a preponderance of the evidence that the re quirements of subsec tion (e) have been met, it “shall” order expungement. I. C. § 35-38-9-3(e). Section 35-38-9-3, however, does not apply to: (1) An elected official convicted of an offense while serving the official’s term or as a ca ndidate for public office. (2) A sex or violent offender (as defined in IC 11-8-8-5)

. (3) A person convicted of a felony th at resulted in bo dily injury to another person. (4) A person convicted of perjur y (IC 35-44.1-2-1) or official misconduct (IC 35-44.1-1-1). (5) A person convicted of an offense described in: (A) IC 35-42-1; (B) IC 35-42-3.5; or (C) IC 35-42-4. (6) A person convicted of two (2) or more felony offenses that: (A) involved the unlawful us e of a deadly weapon; andCourt of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017 Page 5 of 6 (B) were not committed as part of the same episode of criminal conduct. I.C. § 35-38-9-3(b) (emphasis added).

[6] Burton does not dispute th at he is a “sex or violen t offender” as defined in Section 11-8-8-5 by virtue of his State of Washington convictions for rape, child molestation, and sexual exploitation of a minor. Instead, Burton argues that Section 35-38-9-3(b) is a list of offenses that “may not them selves be expunged, and do not disqualify a person convicted of one of those offe nses from seeking expungement on other convictions not listed .” Appellant’s Br. p. 10. This is a question of law, which we review de novo.

[7] Our primary goal in statutory interpretati on is to determine and give effect to the intent of the legislature. D.A. v. State , 58 N.E.3d 169, 171-72 (Ind. 2016) (examining expungement statute). The best evidence of legisl ative intent is the statute’s language, so we begin ou r analysis with those words. Id. “When a statute’s language allows only one meanin g, we accept what it says without enlarging or restricting its plain and obvious meaning.” Id. at 171-72. “‘In other words, when the meaning of the words is plain on paper, we need not resort to other rules of statutory constr uction to divine intent.’” Id. at 172 (quoting Jackson v. State , 50 N.E.3d 767, 772 (Ind. 2016)).

[8] We find that the statutory language is plain. That is, Section 35-38-9-3(b) provides that expungement of Class D/ Level 6 felonies is not available to people who have been convicted of certai n disqualifying offenses. Most of the offenses listed are Class C/Level 5 feloni es and higher, such as murder (IndianaCourt of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017 Page 6 of 6 Code section 35-42-1-1). Contrary to how Burton would have the statute read, Section 35-38-9-3(b) does not say that expungement is not available if the conviction sought to be ex punged is “_____.” In ad dition, Section 35-38-9-3(b) provides that expungement of Class D/Le vel 6 felonies is not available to a “sex or violent offender ”; notably, it does not say a “sex or violent offense .” This is critical because a “sex or violent offender” has a very specific meaning. Because Burton is a “sex or violent offender” as defi ned by Section 11-8-8-5, he is ineligible for expungement of his Cl ass D felonies under Section 35-38-9-3. 2 We therefore affirm the trial co urt’s dismissal of his petition.

[9] Affirmed. Bradford, J., and Brown, J., concur.

2 Indiana Code section 35-38-9- 2 governs expungement of misdemeanors. Unlike th e statute as issue here, Section 35-38-9-2 does not state that it is inapplicable to a “sex or violent offender.” Accordingly, a “sex or violent offender” is eligible for expungement of misdemeanors.