ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Gregory F. Zoeller Jason Glenn Reyome

Attorney General of Indiana Indianapolis, Indiana

David L. Steiner

Deputy Attorney General

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court

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No. 49S02-0807-CR-393

STATE OF INDIANA EX REL.

THE INDIANA STATE POLICE,

Appellant (Respondent below),

v.

CHAD ARNOLD,

Appellee (Petitioner below).

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Appeal from the Marion Superior Court, Criminal Division, No. 49G02-93-052910

The Honorable Robert Altice, Jr., Judge

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On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0610-CR-961

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May 19, 2009

Sullivan, Justice.

Chad Arnold was arrested in 1993 for robbery but was never charged. In 2006, he filed a 

petition to expunge the arrest from his record. We affirm the trial court‟s order granting the 

expungement, declining to adopt the State‟s interpretation that the applicable expungement 

statute denies the trial court discretion in this regard.
2

Background

Chad Arnold filed a Verified Petition for Expungement with the Clerk of the Marion 

Circuit Court in April, 2006. According to the petition: (1) a Lawrence Police Department 

officer had arrested Arnold in 1993 for robbery as a Class A felony but charges were never filed; 

(2) Arnold said that he had not committed the offense and his criminal history record from the 

Indianapolis Police Department confirmed that no charges were filed pursuant to the arrest; and 

(3) Arnold requested that the fact of this arrest be removed or “expunged” from his record. (See

Appellant‟s App. 9-12.)

The trial court conducted a hearing on the petition and thereafter entered an order 

granting expungement on May 31, 2006.1 Sometime later, the State of Indiana on the relation of 

the Indiana State Police Department filed a petition to set aside the trial court‟s expungement 

order.2 Its principal argument was that Arnold had a criminal history of sufficient severity that 

he was not eligible to have this arrest expunged under the applicable Indiana statute. After a 

hearing on the State‟s petition to set aside the expungement order, the trial court denied the 

State‟s request. 

The State appealed the trial court‟s ruling. Although the Court of Appeals reversed the 

trial court‟s expungement order and remanded for a new hearing, State ex rel. Ind. State Police v. 

Arnold, 881 N.E.2d 1105, 1110 (Ind. Ct. App. 2008), the State disagreed with the appellate 

court‟s rationale for doing so and petitioned for transfer. We granted transfer, 2008 Ind. LEXIS 

555 (Ind. 2008) (table). Ind. Appellate Rule 58(A).

 

1 The language of the trial court‟s order granting expungement seems to expunge Arnold‟s entire criminal 

record, but as his counsel argued in his brief and conceded during oral argument, Arnold seeks to expunge 

only his 1993 arrest for robbery. We treat the trial court‟s order as expunging only that arrest.

2 The State requested the expungement order be set aside pursuant to Ind. Trial Rule 60(B), specifically 

T.R. 60(B)(1) and (8). T. R. 60(B)(1) states in relevant part: “the court may relieve a party or his legal 

representative from a judgment, including a judgment by default, for the following reasons: (1) mistake, 

surprise, or excusable neglect . . . .” T.R. 60(B)(8) allows a trial court to relieve a party or his legal 

representative from a judgment for “any reason [other than those listed in T.R. 60(B)(1)-(4)] justifying 

relief from the operation of the judgment.” There is no contention that the T.R. 60(B) procedure was not 

available here.
3

Discussion

I

The statute at issue in this case, Ind. Code § 35-38-5-1 (2008) (the “Expungement 

Statute”), provides in relevant part:

(a) Whenever:

(1) an individual is arrested but no criminal charges are filed against the 

individual; or

(2) all criminal charges filed against an individual are dropped because:

(A) of a mistaken identity;

(B) no offense was in fact committed; or

(C) there was an absence of probable cause;

the individual may petition the court for expungement of the records 

related to the arrest.

. . .

(d) . . . Any agency desiring to oppose the expungement shall file a notice of 

opposition with the court setting forth reasons for resisting the expungement 

along with any sworn statements from individuals who represent the agency that 

explain the reasons for resisting the expungement within thirty (30) days after the 

petition is filed. . . . The court shall:

(1) summarily grant the petition;

(2) set the matter for hearing; or

(3) summarily deny the petition, if the court determines that:

(A) the petition is insufficient; or

(B) based on information contained in sworn statements submitted 

by individuals who represent an agency, the petitioner is not 

entitled to an expungement of records.

(e) If a notice of opposition is filed and the court does not summarily grant or 

summarily deny the petition, the court shall set the matter for a hearing.

(f) After a hearing is held under this section, the petition shall be granted unless 

the court finds:

(1) the conditions in subsection (a) have not been met;

(2) the individual has a record of arrests other than minor traffic offenses; 

or

(3) additional criminal charges are pending against the individual.
4

The Expungement Statute provides the exclusive means for expunging arrest records 

when either no criminal charges are ever filed against the arrestee or the charges are dropped. 

Blake v. State, 860 N.E.2d 625, 627 (Ind. Ct. App. 2007). Here, no criminal charges were ever 

filed with respect to Arnold‟s arrest for robbery, and therefore I.C. § 35-38-5-1 is applicable. 

On appeal, the State argued that “based on the plain language of Indiana Code § 35-38-5-

1(f), the trial court may not grant an expungement when a person has an arrest history for matters 

other than minor traffic offenses.” (Appellant‟s Br. at 10.) Because Arnold has “an arrest 

history for matters other than minor traffic offenses,”3the State maintains, the trial court did not 

have authority under the Expungement Statute to grant his request. In other words, the State‟s 

interpretation is that subsection (f) contains a list of three disqualifiers and that if any one of 

these is found, the trial court must deny a petition for expungement. 

The Court of Appeals disagreed with the State‟s interpretation. Its alternative 

interpretation is as follows: 

[t]he mandatory language of „shall‟ in subsection (f) only addresses the 

granting of a petition for expungement; it does not appear in subsection (f) as a 

directive regarding the denial of a petition for expungement. In fact, subsection 

(f) is silent regarding whether the factors listed in subsection f(2) and f(3) dictate 

the denial of a petition for expungement where the petitioner has met the 

requirements of subsection (a). 

Arnold, 881 N.E.2d at 1109. Based on this reasoning, the Court of Appeals held that “[g]iven 

the legislature‟s omission of language mandating the denial of a petition for expungement, we 

find that the legislature intended the granting or denial of a petition under [the Expungement 

Statute] to be within the trial court‟s sound discretion where the petitioner meets the conditions 

 

3 Arnold‟s criminal transcript shows the following arrest record: minor consumption and operating while 

intoxicated in 1991, the armed robbery at issue here in 1993, one arrest for operating while intoxicated in 

2000 and two arrests for operating while intoxicated in 2002, and violation of probation for operating 

while intoxicated in 2003. Arnold concedes that “he ha[s] „a record of arrests other than minor traffic 

offenses‟ . . . .” (Appellee‟s Br. at 5).
5

of subsection (a) yet falls within subsection (f)(2) or (f)(3).” Id. Given this holding, the court 

remanded for a new evidentiary hearing.4

The decision of the Court of Appeals panel in this case is in conflict with the 

interpretation of subsection (f) contained in its earlier decision in State v. Reynolds, 774 N.E.2d 

902 (Ind. Ct. App. 2002). In Reynolds, the trial court had granted Reynolds‟s expungement 

petition. Id. at 903. The Court of Appeals disagreed, finding that Reynolds “did not establish at 

hearing that no offense was committed.” Id. at 904. The Court added in dicta that even if 

Reynolds had established that no offense was committed, the trial court had no discretion to issue 

an expungement order under subsection (f) because “there were additional criminal charges 

pending against him.” Id. 

We resolve this conflict between the Reynolds and Arnold decisions of the Court of 

Appeals in favor of the interpretation of subsection (f) adopted by the Court of Appeals in 

Arnold for the reasons set forth below. 

II

The State contends that subsection (f) “clearly prohibits an expungement if the 

disqualifiers stated in that subsection are applicable.” (State‟s Pet. to Transf. at 8.) As set forth 

supra, subsection (f) provides that after a hearing is held, the trial court shall grant a petition for 

expungement unless it finds (1) that the conditions in subsection (a) have not been met; (2) the 

petitioner has a record of arrests other than minor traffic offenses; or (3) additional criminal 

charges are pending against the petitioner. It is clear from the plain meaning of subsection (f) 

that if, after conducting a hearing, the trial court finds none of the above three factors, it must 

grant the petition for expungement. It has no discretion to deny the petition. If, after conducting 

a hearing, the court finds that “the conditions in subsection (a) have not been met” (factor (1)), 

 

4 Earlier in its opinion, the Court of Appeals had reversed the trial court‟s expungement order based on 

another issue that it had raised sua sponte: whether the service of process on the State was adequate. See

Arnold, 881 N.E.2d at 1108 (“Given the inadequate service of process in this case, we find that the trial 

court did not have personal jurisdiction over the State. Accordingly, the trial court‟s order that Arnold‟s 

record be expunged is void.”).
6

then the individual has no standing even to petition the court for expungement and the court must 

therefore deny the petition. See I.C. § 35-38-5-1(a). If, however, after conducting a hearing, the 

trial court finds that the individual “has a record of arrests other than minor traffic offenses; or 

additional criminal charges are pending against the individual,” id. (f)(2), (f)(3), the statute is 

silent as to whether the court is required to deny the petition for expungement or whether it still 

has discretion to grant the petition. That is, while the language of subsection (f) provides clear 

evidence that the legislature intended for trial courts to grant expungements when none of the 

three factors in that subsection are found to exist, that same language does not provide any 

evidence of the Legislature‟s intent when only factor (f)(2) or (f)(3) are found. 

“[O]ur primary goal of statutory construction is to determine, give effect to, and 

implement the intent of the Legislature.” City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 

2007) (citing Ind. Civil Rights Comm‟n v. Alder, 714 N.E.2d 632, 637 (Ind. 1999)). We find 

evidence as to the Legislature‟s intent in other subsections of the Expungement Statute. 

Subsection (d) is especially illustrative. See I.C. § 35-38-5-1(d). Upon receipt of a petition for

expungement, the trial court has complete discretion to (1) grant the petition summarily; (2) deny 

the petition summarily; or (3) to set the matter for a hearing. Id. § (d)(1), (2), (3). The court 

does not have to consider any statutory factors before making its decision to grant the petition 

summarily. See id. § (d)(1). To deny the petition summarily, the court must determine either 

that (A) the petition is “insufficient;” or that (B) the petitioner is not entitled to an expungement 

of records based on “information contained in sworn statements submitted by individuals who 

represent an agency.” Id. § (d)(3). “If a notice of opposition is filed and the court does not 

summarily grant or summarily deny the petition, the court shall set the matter for a hearing.” Id.

§ (e).

The animating principle behind subsection (d) seems to us to be trial court discretion in 

responding to a petition for expungement. As discussed supra, the court has discretion to grant 

the petition summarily without considering any statutory factors. The court also has discretion to 

deny the petition summarily if it finds the petition to be “insufficient” or finds that “the petitioner 

is not entitled to an expungement” based on information contained in sworn statements 

submitted by agency representatives. Id. § (d)(3). The trial court‟s discretion is further 
7

evidenced by the Legislature‟s silence as to when a petition is “sufficient” and when a petitioner 

is or is not “entitled to an expungement” based on information submitted by agency 

representatives. Only if a notice of opposition is filed and the trial court does not exercise its 

discretion to grant summarily or deny summarily a petition for expungement, must the court hold 

a hearing on the petition. Id. § (e).

The State contends that the “overall intent of the General Assembly” in enacting 

subsection (f) was “specifying the disqualifying provisions” that, if found, prohibit the trial court 

from granting a petition for expungement. (State‟s Pet. to Transf. at 9.) We disagree. We do not 

believe that the Legislature intended to give the trial court almost unfettered discretion to grant 

summarily or to deny summarily a petition for expungement without a hearing, see I.C. § 35-38-

5-1(d)(1) and d(3), only to take away that discretion completely when the court decides to 

conduct a fact-finding hearing. See State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008) 

(“The Court presumes that the legislature intended for the statutory language to be applied in a 

logical manner consistent with the statute‟s underlying policy and goals.”).

We also choose not to adopt the State‟s interpretation of subsection (f) because its 

application brings about unjust results. City of Carmel, 865 N.E.2d at 618 (“we do not presume 

that the Legislature intended language used in a statute to be applied illogically or to bring about 

an unjust or absurd result.”). As discussed supra, the State‟s position here is that a trial court 

must deny a petition for expungement if the petitioner has a “record of arrests other than minor 

traffic offenses.” I.C. § 35-38-5-1(f)(2). At oral argument, the State took the position that a 

“record of arrests” was more than one arrest and, as such, an individual with only one arrest 

would be eligible for expungement under subsection (f)(2); an individual with two or more 

arrests is in all circumstances ineligible. 

But consider this hypothetical: John Jones is arrested twice but both arrests are products 

of mistaken identity, i.e., he is not the John Jones that committed the crimes he was arrested for. 

Applying the State‟s position to these hypothetical facts, John Jones has a “record of arrests” and 

therefore the trial court would have no discretion to expunge these mistakes from his arrest 
8

record. We think that the Legislature intended for the court to have the discretion to expunge 

such arrests when it enacted the Expungement Statute.

Based upon the above reasons, we conclude that if, after conducting a hearing, the trial 

court finds that an individual has a record of arrests other than minor traffic offenses, the court 

has discretion to either grant or deny that individual‟s petition for expungement. To the extent 

Reynolds, 774 N.E.2d 902, holds to the contrary, it is disapproved. 

Lastly, the State contends that this interpretation of subsection (f) renders it 

constitutionally suspect under the Equal Privileges Clause, Article I, section 23 of the Indiana 

Constitution,5and the Equal Protection Clause of the Fourteenth Amendment.6 Specifically, the 

State argues that “[b]y making expungements of arrest records a matter of individual trial court 

discretion . . . it is reasonable to expect that there will be uneven application of the law, that is, 

one person may be denied the expungement of an arrest record even though he is similarly 

situated with respect to his arrest history with a person who is granted an expungement of his 

arrest record by a different judge.” (State‟s Pet. to Transf. at 10.) We see little difference 

between the discretion the Legislature has granted trial courts in this regard and the discretion 

that prosecutors have to file or not file criminal charges against individuals “similarly situated” 

as to which, we are quite sure, that the State would allege no Equal Privileges or Equal 

Protection Clause violation. Suffice it to say that we do not find subsection (f) constitutionally 

suspect in this regard.

Conclusion

We affirm the judgment of the trial court. 

 

5 Article I, section 23 of the Indiana Constitution states, “The General Assembly shall not grant to any 

citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally 

belong to all citizens.”

6 The Equal Protection Clause of the Fourteenth Amendment states in relevant part: “No State shall make 

or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . 

nor deny to any person within its jurisdiction the equal protection of the laws.”
9

Boehm, J., and Rucker, J., concur.

Dickson, J., concurs in the result.

Shepard, C.J., dissents with separate opinion.
SHEPARD, C.J., dissenting.

I think the Court has worked too hard at parsing the expungement statute. The 

legislature‟s policy seems apparent enough. When someone petitions to expunge an arrest and

the prosecutor stands silent, the trial court shall grant the expungement. When the State believes 

it would be harmful to the public‟s interest to expunge and thus objects, the court must decline to 

expunge where the record reflects multiple arrests for real crimes.

While the expungement statute might produce an occasional anomaly, as the Court 

speculates, there is nothing anomalous about the case before us. Besides his arrest for armed 

robbery, Arnold has been arrested for drunk driving four times, convicted twice, and violated 

probation. I conclude that the General Assembly has prohibited expungement under such 

circumstances.