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Tuesday, May 27, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)

For publication opinions today (1):

In John Alden v. State of Indiana , a 6-page opinion, Judge Pyle writes:

John Alden (“Alden”) appeals the trial court’s denial of his motion to prohibit the release of his criminal record. We reverse and remand. * * *

On June 4, 2013, Alden filed a motion to prohibit the release of his criminal record. He argued that he met the requirements of Indiana Code § 35-38-8-5, which at the time allowed courts to restrict access to the conviction records of qualifying offenders eight years after they completed their sentences. Alden served his motion on the Hancock County Prosecutor but not any other State entities. Shortly after Alden filed the motion, the Indiana Legislature repealed Indiana Code § 35-38-8-5. * * *

On appeal, Alden disputes both of the trial court’s conclusions. He argues that he was not required to serve notice to affected state agencies because he served notice to a deputy prosecutor, which constituted notice to the State. In response, the State reiterates the trial court’s conclusion that Alden was required to serve notice to the entities impacted by his motion—in particular the Attorney General and the Indiana State Police Central Repository (“ISPCR”). Second, Alden argues that the trial court abused its discretion when it denied his motion as a result of the Legislature’s repeal of the statute. He contends that the repeal should have a prospective, rather than retroactive, effect. Except for a brief statement in a footnote, the State does not address the merits of this second argument and focuses solely on the issue of proper notice.

A. Notice * * *

Alden’s motion was a new filing with respect to his criminal conviction rather than a new cause of action. As such, he fulfilled the notice requirements of Indiana Criminal Rule 18 by serving the Hancock County Prosecutor, the adverse party “of record.” See id.

B. Repeal
As we have found that Alden’s notice was sufficient, we must determine whether the trial court abused its discretion in denying his motion on the basis that the Legislature repealed Indiana Code § 35-38-8-3. * * *

Instead, we find Indiana Code § 1-1-5-6 dispositive. Section 1-1-5-6 “applies to the repeal of a statute or part of a statute that has expired,” and provides that “[t]he repeal does not affect the validity of an action taken under the statute or part of the statute before its expiration.” I.C. § 1-1-5-6. While Indiana courts have never interpreted this provision of the Indiana Code, its plain language indicates that a party has a right to pursue an action allowed by statute even if that statute is later repealed, as long as the party undertakes the action prior to the repeal. Accordingly, because Alden filed his motion before the Legislature repealed Indiana Code § 35-38-8-3, we conclude that the repeal did not affect the validity of his action. Thus, the trial court abused its discretion when it denied his motion on the basis that the Legislature had repealed the statute. We remand to the trial court for the trial court to consider the merits of Alden’s motion.

NFP civil opinions today (5):

Richard M. Tallman v. State of Indiana, Indiana Department of Natural Resources, et al (NFP)

In Re: The Paternity of A.G.P. M.O. v. R.K.P. (NFP)

Tamara J. Shidler, surviving spouse of Michael R. Shidler v. Dennis G. Lockrey, M.D., and Sigma Medical Group, LLC, d/b/a Sigma Med Express Care, and James D. Pike, D.O., et al. (NFP)

Dana Banks v. Evans Limestone Co. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of L.B. and J.B., W.B. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (8):

Troy A. Bratton v. State of Indiana (NFP)

Chukwuemeka Chidebelu-Eze v. State of Indiana (NFP)

Marquise Lee v. State of Indiana (NFP)

Timothy E. Gabehart v. State of Indiana (NFP)

Breondon D. Pinkston v. State of Indiana (NFP)

Jackie Robson v. State of Indiana (NFP)

James E. Robinson v. State of Indiana (NFP)

Leonel H. Arellano v. State of Indiana (NFP)

Posted by Marcia Oddi on May 27, 2014 01:37 PM
Posted to Ind. App.Ct. Decisions