Court of Appeals of Indiana | Opinion 10A01-1606-XP-1327 | February 3, 2017 Page 1 of 6

 

APPELLANT PRO SE

Lonnie L. Burton 

Aberdeen, Washington 

ATTORNEYS FOR APPELLEE

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, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-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. 
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Case Summary 

[1] Lonnie L. Burton petitioned to expunge two Class D felony convictions (theft 

and fraud) pursuant to Indiana Code section 35-38-9-3, and the State moved to 

dismiss, arguing that Burton is not eligible 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 Burton appeals. Because the plain language 

of Section 35-38-9-3(b) provides 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, and sexual exploitation of a minor from 

the State of Washington and a 1994 conviction for rape from the State of 

Washington. Appellant’s App. Vol. II p. 9. The State moved to dismiss 

Burton’s expungement petition. Specifically, the State argued that Burton was 

not eligible to expunge his Class D felony convictions because Section 35-38-9-3 

does not apply to a “sex or violent offender” and Burton is a “sex or violent 
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offender” based on his State of Washington convictions. Id. at 14-15. The trial 

court granted the State’s motion 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 statutes, our legislature intended to give 

individuals who have been convicted of certain crimes a second chance by 

providing an opportunity for relief from 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 inherently remedial, they should be 

liberally construed to advance the remedy for which they were enacted. Id. 

[5] Here, Burton filed an expungement petition pursuant to Section 35-38-9-3. 

Under this section, a person convicted of a Class D felony (for a crime 

committed before July 1, 2014) or a Level 6 felony (for a crime committed after 

June 30, 2014) may petition for expungement 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 petition. 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 defective 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 expungement 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 was filed too soon or that he was convicted of a disqualifying offense”). 
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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 requirements of subsection (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 candidate for public office. 

(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. 

(4) A person convicted of perjury (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 use of a deadly weapon; and 
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(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 that he is a “sex or violent 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 themselves be expunged, 

and do not disqualify a person convicted of one of those offenses 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 interpretation 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 legislative intent is the 

statute’s language, so we begin our analysis with those words. Id. “When a 

statute’s language allows only one meaning, 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 construction 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 certain disqualifying offenses. Most of the 

offenses listed are Class C/Level 5 felonies and higher, such as murder (Indiana 
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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 expunged is “_____.” In addition, Section 35-38-9-3(b) 

provides that expungement of Class D/Level 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 defined by Section 11-8-8-5, he 

is ineligible for expungement of his Class D felonies under Section 35-38-9-3.2

 

We therefore affirm the trial court’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 the 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.