Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 1 of 14

ATTORNEY FOR APPELLANT

Stacy L. Kelley

Glaser & Ebbs

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Anthony W. Overholt

Maggie L. Smith

Frost Brown Todd LLC

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

In Re The Expungement/

Sealing of Records of H.M.,

Appellant-Defendant,

v.

State of Indiana and Marion 

County Sheriff,

Appellee-Plaintiff.

December 8, 2016

Court of Appeals Case No.

49A02-1604-MI-700

Appeal from the Marion Superior 

Court

The Honorable Angela Davis, 

Judge

Trial Court Cause No.

49G16-1307-MI-28470

Bailey, Judge.

Case Summary

[1] H.M.’s criminal convictions were expunged in 2013. H.M. later applied with 

the Marion County Sheriff (“the Sheriff”) to serve as a volunteer deputy sheriff. 

After conducting a background check, the Sheriff declined H.M.’s application. 
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 2 of 14

H.M. initiated contempt proceedings alleging discrimination prohibited under 

Indiana’s criminal history expungement statute.1 The contempt petition was 

dismissed upon the Sheriff’s motion. H.M. now appeals.

[2] We reverse and remand.

Issues

[3] H.M. designates two issues for our review:

I. Whether the trial court erred when it denied H.M.’s 

motion to strike the Sheriff’s motion to dismiss as 

untimely; and

II. Whether the trial court erred when it dismissed H.M.’s 

contempt petition.

Facts and Procedural History

[4] Because of the procedural posture of this case, we take our statement of facts 

from H.M.’s petition and the parties’ related motions. On July 24, 2013, H.M. 

applied for expungement of his convictions and other criminal records in 

certain matters. The Marion Superior Court granted the expungment on 

October 4, 2013.

 

1

Ind. Code § 35-38-9-1 et seq.
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 3 of 14

[5] On November 12, 2014, H.M. applied with the Sheriff for appointment as a 

volunteer sheriff’s deputy. Such deputies are often deputized as special deputy 

sheriffs under Indiana Code section 36-8-10-10.6.

[6] As part of the review process, the Sheriff conducted a background check on 

H.M. After the background check, the Sheriff denied H.M.’s application in a 

letter that stated, in relevant part, “[t]he background phase is completed for the 

Reserve Deputy Sheriff position. We regret to inform you that you have not 

been selected for hire.” (App’x at 12.)

[7] On December 3, 2015, H.M. filed a verified petition for contempt in the Marion 

Superior Court under the cause number for his expungement proceedings. The 

named party in the expungement proceedings was the State of Indiana, and a 

delay of approximately one month ensued during which the trial court 

identified the proper respondent for the contempt petition. Finally, on January 

7, 2016, the Sheriff entered an appearance by counsel.

[8] On Febuary 3, 2016, a hearing was conducted, during which the Sheriff sought 

leave to file a brief with the trial court. The trial court granted the motion, and 

subsequently granted a request for an extension of time to file the brief. On 

February 17, 2016, the Sheriff filed a motion including legal argument that 

requested the dismissal of H.M.’s contempt petition.

[9] On March 9, 2016, H.M. moved the trial court to strike the Sheriff’s motion, 

and separately filed his brief in opposition to the Sheriff’s motion to dismiss. A 

hearing was conducted that day, at the conclusion of which the trial court 
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 4 of 14

entered an order granting the Sheriff’s motion to dismiss the contempt petition 

and denying H.M.’s motion to strike.

[10] This appeal ensued.

Discussion and Decision

Motion to Strike

[11] We turn first to H.M.’s contention that the trial court erroneously denied his 

motion to strike the Sheriff’s motion to dismiss. We review motions to strike 

for an abuse of discretion, which occurs when the court’s decision is contrary to 

the facts and circumstances before it. Allstate Ins. Co v. Hatfield, 28 N.E.3d 248, 

248 (Ind. Ct. App. 2015).

[12] H.M. contends that the Sheriff’s motion to dismiss should have been stricken 

because it was untimely filed, and directs us to the Indiana timeline rules for the 

filing of motions in response to pleadings. See Ind. Trial Rule 8(C) (setting forth 

the twenty-day period for timely response to a complaint). H.M. argues that his

petition for contempt is, in essence, a pleading—namely, a complaint. And 

because the Sheriff’s motion to dismiss the petition came outside the twenty-day 

window of time set forth in Rule 8(C) for responses to a complaint, the 

argument goes, the trial court erred when it did not dismiss the Sheriff’s motion. 

H.M. would have us apply the rules for pleading to a motion seeking to enforce 

a judgment, and would have us very narrowly interpret the pleading rules to 

require that the Sheriff’s motion be stricken. For its part, the Sheriff suggests 
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 5 of 14

that strict application of those rules is unnecessary because its motion is not a 

pleading at all, and thus the pleading rules simply do not apply.

[13] As this Court and our supreme court have noted, “the rules of trial procedure 

‘are intended to standardize the practice within the court, facilitate the effective 

flow of information, and enable the court to rule on the merits of the case.’” 

Turner v. Franklin Cty. Four Wheelers Inc., 889 N.E.2d 903, 905 (Ind. Ct. App. 

2008) (quoting S.T. v. State, 764 N.E.2d 632, 635 (Ind. 2002)). All parties and 

the court are generally bound by the rules, but “a court should not adhere 

blindly to all of its rules.” Id. Thus, whether the petition for contempt is or is 

not a form of pleading, we would be remiss not to note that an extended period 

of time passed after the petition was filed, during which time it appears that the 

correct responsive party had not been properly identified or filed an appearance. 

During this period, it appears from the CCS that only on December 23, 2015—

twenty days after the petition was filed—was the requirement for counsel for 

the Sheriff, rather than counsel for the State, established.

[14] Moreover, we observe that “a court may at any time for cause shown ... upon 

motion made after the expiration of the specific period, permit the act to be 

done where failure to act was the result of excusable neglect.” T.R. 8(B). 

Under the circumstances, and in light of our courts’ policy favoring resolution 

of cases on their merits, Comer-Marquardt v. A-1 Glassworks, LLC, 806 N.E.2d 

883, 886 (Ind. Ct. App. 2004), we think the trial court was within its discretion 

to grant an enlargement of time for the Sheriff to file a response to the petition 

for contempt.
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 6 of 14

[15] H.M. also challenges the denial of his motion to strike on the basis that the 

Sheriff sought leave to file a brief and, instead, filed the motion to dismiss the 

petition for contempt. H.M.’s contention—that the Sheriff had not been 

granted leave to file a motion—is solely a question of terminology. We reject 

H.M.’s argument in this regard as an elevation of form over substance. See id.

at 888. We accordingly find no abuse of discretion in the trial court’s denial of 

the motion to strike because the Sheriff filed a motion instead of a brief.

Motion to Dismiss

[16] We turn now to H.M.’s argument that the trial court erred when it dismissed 

the petition for contempt. The parties here differ as to how the order on the 

petition should be reviewed. H.M. contends that because the petition is 

analogous to a complaint, the trial court’s dismissal should be reviewed as an 

order dismissing a complaint for failure to state a claim under Trial Rule 

12(B)(6) that is subject to de novo review, with the facts in the petition for 

contempt deemed facially true, as if the petition were a complaint. See Bellows v. 

Board of Com’rs of Cty. of Elkhart, 926 N.E.2d 96, 111 (Ind. Ct. App. 2010) 

(setting forth the standard of review for an appeal from a dismissal for failure to 

state a claim). The Sheriff does not proffer a standard of review, but addresses 

the dismissal order as a question of statutory construction—that is, as a matter 

of law. See Suggs v. State, 51 N.E.3d 1190, 1194 (Ind. 2016) (setting forth the 

standard used by appellate courts when reviewing questions of statutory 

construction). The result under either approach is the same: a de novo review of 

the order of dismissal.
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 7 of 14

[17] H.M.’s petition for contempt and his appeal rest on Indiana’s expungement 

statute. This statute has recently been the subject of substantial litigation and 

revision, but the interpretation of its anti-discrimination provisions in light of 

the authority of Indiana’s sheriffs to appoint special and volunteer deputies is a 

matter of first impression. The anti-discrimination provisions of the 

expungement statute state:

It is unlawful for any person to:

(1) suspend;

(2) expel;

(3) refuse to employ;

(4) refuse to admit;

(5) refuse to grant or renew a license, permit or certificate 

necessary to engage in any activity, occupation, or profession; or

(6) otherwise discriminate against;

any person because of a conviction or arrest record expunged or 

sealed under this chapter.

I.C. § 35-38-9-10(b). With specific exceptions related to subsequent criminal 

conduct, “[a] person whose record is expunged shall be treated as if the person 

had never been convicted of the offense.” I.C. § 35-38-9-10(e). “Any person 

that discriminates against a person as described in subsection (b) commits a 
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 8 of 14

Class C infraction and may be held in contempt by the court issuing the order of 

expungement or by any other court of general jurisdiction. Any person may file 

a written motion of contempt,” and “the person is entitled to injunctive relief.” 

I.C. § 35-38-9-10(f). Separate from the anti-discrimination provisions, the 

expungement statute precludes the release of information in sealed or expunged 

records “to anyone without a court order, other than a law enforcement officer 

acting in the course of the officer’s official duty.” I.C. § 35-38-9-6(a).

[18] The trial court here granted the Sheriff’s motion to dismiss H.M.’s petition, and 

further ruled that the Marion Superior Court was not the correct venue for the 

case, though each ruling was without legal analysis. The Sheriff’s motion to 

dismiss argued that the grant of broad discretion in the statutes concerning 

sheriffs’ powers to access protected information and create special deputy 

sheriffs precluded any possibility that the Sheriff or any of the Sheriff’s 

employees could be held liable under Indiana’s expungement laws. H.M. 

opposed that argument at the trial court and now before this Court, and the 

Sheriff reiterates the argument on appeal.

[19] Turning briefly to the question of proper venue, both H.M. and the Sheriff agree 

that the trial court was in error, and we in turn agree with them. Section 35-38-

9-10(f) is explicit that a discrimination complaint may be brought to either the 

court that entered the expungement or to any court of general jurisdiction. This 

includes the Marion Superior Court, which is both the court in which the 

expungement was granted—indeed, the petition for contempt was brought 

under the same cause number as the original expungement proceedings—and a 
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 9 of 14

court of general jurisdiction. The Marion Superior Court was thus a proper 

venue, and the trial court’s contrary ruling was erroneous.

[20] We turn now to the order of dismissal as it relates to the Sheriff’s contention 

before the trial court that H.M. could not seek relief against the Sheriff under 

the expungement statute’s anti-discrimination provisions. The Sheriff’s 

argument here rests upon its interpretation of the ability of a law enforcement 

official, pursuant to Section 35-38-9-6(a), to access information that otherwise 

would be subject to non-disclosure as a result of expungement when the Sheriff 

accesses such information in the course of official duties. 

[21] That statute granting Indiana sheriffs authority to appoint special deputy 

sheriffs requires that such individuals meet age and training requirements. It 

also requires that such persons “never have been convicted of a felony, or a 

misdemeanor involving moral turpitude,” and that they “be of good moral 

character.” I.C. §§ 36-8-10-10.6(b)(2) & (3). In light of these requirements, the 

Sheriff contends that access to information related to an individual’s prior 

expunged convictions was permissible as within the scope of official duties.

[22] We agree with that proposition. However, that does not address the content of 

the petition for contempt or the anti-discrimination provision of the 

expungement statute. Indeed, the Sheriff’s brief before this court does not 

address the anti-discrimination provision at all, except to note its existence and 

that its interpretation has a place in this case. (Appellee’s Br. at 14.) Yet the 
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 10 of 14

case hinges on the construction of the anti-discrimination provision in light of

the other statutory provisions on which the Sheriff relies.

[23] When construing a statute, our primary goal is to ascertain the legislature’s 

intent. Jackson v. State, 50 N.E.3d 767, 772 (Ind. 2016). To discern the 

legislature’s intent, we look first to the language of the statute and give effect to 

the plain and ordinary meaning of statutory terms. Id. Where the language of 

the statute is clear and unambiguous so that the meaning of the statute is plain, 

“we need not resort to other rules of statutory construction to divine intent.” Id. 

The expungement statutory scheme at issue here is a remedial one, namely, “to 

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

not experiencing many of the stigmas associated with a criminal conviction.” 

Taylor v. State, 7 N.E.3d 362, 367 (Ind. Ct. App. 2014). As a remedial statute, 

we must liberally construe the expungement statute to give effect to that 

remedy. Brown v. State, 947 N.E.2d 486, 490 (Ind. Ct. App. 2011), trans. denied.

[24] As H.M. notes, Section 35-38-9-10(b)’s anti-discrimination provision is clear: 

no person may use knowledge of another’s expunged criminal history as a basis 

for discrimination in employment, accommodation, or in any other form. 

Section 35-38-9-6(a)’s provision that permits enforcement officers in the course 

of their duties to access information expunged from an individual’s criminal 

history and sealed from public view, is also clear: a person’s records may be 

“releas[ed]” to a law enforcement officer without a court order. The statutory 

requirements for appointing special deputies clearly indicate that a sheriff may 

not appoint as a special deputy sheriff an individual that has previously 
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 11 of 14

committed a felony or misdemeanor indicative of moral turpitude or an 

individual without good moral character. I.C. § 36-8-10-10.6(b). Thus, a sheriff 

may properly access expunged criminal history of a deputy sheriff candidate.

[25] That does not mean that law enforcement officials are given statutory leave to 

use that information in any manner they please. The anti-discrimination 

provisions of Section 35-38-9-10 expressly contemplate the possibility that 

someone might be asked about an expunged criminal history and limit the 

scope of that inquiry. They provide that “a person may be questioned about a 

previous criminal record only in terms that exclude expunged convictions or 

arrests, such as: ‘Have you ever been arrested for or convicted of a crime that 

has not been expunged by a court.’” I.C. § 35-38-9-10(d). Even if information 

about expunged convictions is disclosed, the statute still precludes use of that 

fact as a basis for adverse action: such action is “unlawful” if taken “because of 

a conviction or arrest record expunged or sealed under this chapter.” I.C. § 35-

38-9-10(b). Thus, while the Sheriff may access expunged convictions, the 

language of the expungement statute precludes adverse action “because” of 

those convictions. Moreover, neither party directs us to any express statutory 

language that carves out any exception to the anti-discrimination provisions as 

they relate to appointing deputy sheriffs, nor have we found such an exception.

[26] If the expungement statute thus does not permit sheriffs to deny a privilege or 

status “because of” an expunged conviction or arrest, the rest falls in line. 

Here, the trial court granted a motion to dismiss a petition for contempt that 

alleged that the Sheriff had discriminated against H.M. because of his expunged 
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 12 of 14

convictions. H.M. couched this in terms of the denial of a position as a 

volunteer sheriff’s deputy; the Sheriff contends H.M. sought special deputy 

status so that he could engage in certain security business activities. In either 

event, H.M. alleged that the denial of his applied-for status occurred because of 

his prior expunged convictions: “Pursuant to I.C. 35-38-9-10(b) the Marion 

County Sheriff’s Department has unlawfully discriminated against [H.M.] by 

refusing to employ him based upon a conviction or arrest record expunged or 

sealed” by court order. (App’x at 08.)

[27] It may well be that the Sheriff had other bases upon which to deny H.M.’s 

application. But given the precise nature of H.M.’s allegation in the petition

and the breadth of the anti-discrimination provisions of the expungment statute, 

we cannot say as a matter of law that the petition failed to adequately set forth a 

basis upon which H.M. might proceed in an effort to prove discrimination 

solely based upon his prior expunged convictions.

[28] We recognize the Sheriff’s need to appoint deputy sheriffs who are qualified 

under the deputization statutes, as well as the scrutiny to which law 

enforcement is subjected. Yet the Indiana General Assembly has not limited

the scope of the expungement statute by carving out an exception to the antidiscrimination provisions for the designation of deputy sheriffs. It is thus to the 

legislature—the same body that governs the powers of sheriffs to appoint their 

deputies—that the Sheriff’s arguments are best directed.
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 13 of 14

[29] Accordingly, we conclude that the trial court erred when it granted the Sheriff’s 

motion to dismiss, and we reverse the order of dismissal. We therefore remand 

the case for further proceedings consistent with our decision today.

Conclusion

[30] The trial court did not err when it denied H.M.’s motion to strike. The trial 

court erred when it dismissed H.M.’s contempt petition.

[31] Reversed and remanded.

Riley, J., concurs. 

Barnes, J., concurs with separate opinion.
Court of Appeals of Indiana | Opinion 49A02-1604-MI-700 | December 8, 2016 Page 14 of 14

I N T H E

COURT OF APPEALS OF INDIANA

In Re The Expungement/Sealing 

of Records of H.M., 

Appellant-Defendant,

v.

State of Indiana and Marion 

County Sheriff, 

Appellee-Plaintiff.

Court of Appeals Case No.

49A02-1604-MI-700

Barnes, Judge, concurring with separate opinion

[32] I concur with my colleagues in full. I write, though, to urge our Legislature to 

examine this provision of Indiana law and carve out some sort of lawenforcement exception.

[33] While I respect and strongly favor an orderly and warranted expungement 

process, I believe law enforcement ought to be able to thoroughly examine 

one’s past criminal history and make judgments accordingly. A multitude of 

remedies would remain for those who would feel unfairly treated. I simply 

favor, for some of the most sensitive positions in our society, an approach that 

would provide more discretion to hiring agencies.