Gulzar v. State, No. 19S-XP-673, __ N.E.3d __ (Ind., Jun. 24, 2020).

Rush, C.J.

Expungement removes the stigma associated with a criminal conviction—one of the last barriers ex-offenders face when reintegrating into society. But before filing an expungement petition, an individual must wait a set period of time after their “date of conviction.”

Here, Naveed Gulzar petitioned to expunge a minor felony conviction that had been converted to a misdemeanor. The relevant statute required Gulzar to wait five years before seeking expungement; but, at the time of his petition, the statute wasn’t clear on when the waiting period began. The trial court—believing the relevant five years hadn’t elapsed—denied the petition. Then, while Gulzar’s appeal was pending, the legislature amended the statute to alleviate the confusion and made the change effective immediately. Under the new version, Gulzar’s expungement petition would have been granted.

We conclude that the amended statute should apply retroactively to Gulzar, as this application effectuates the remedial law’s purpose. We thus reverse and remand.

In January 2006, Naveed Gulzar was working at a gas station when a patron left her credit card behind. Gulzar and a coworker took the credit card and used it to make several purchases. After the victim reported the card stolen, Gulzar was arrested. He admitted to the offense and told officers where they could find the stolen card and purchased items.

As a result, Gulzar pleaded guilty to Class D felony theft…[and] in April 2006, the court entered judgment of conviction for the felony…In August 2016—more than ten years after the felony conviction—the court granted Gulzar’s twelfth petition, converting the Class D felony to a Class A misdemeanor.

Two years later, Gulzar sought to expunge the conviction under Indiana Code section 35-38-9-2, which applies to a person convicted of a minor felony—Class D or Level 6—that was subsequently reduced to a misdemeanor. The statute required a petitioner to wait five years from “the date of conviction” before filing, but the law referenced only “the misdemeanor” conviction. I.C. § 35-38-9-2(c) (2018). The trial court denied Gulzar’s petition, reasoning that his “date of conviction” was when the felony was converted and thus the five years had not yet passed…Gulzar appealed, and a divided panel of our Court of Appeals affirmed. Gulzar v. State, 132 N.E.3d 51, 57 (Ind. Ct. App. 2019).

Gulzar petitioned for transfer, which we granted, vacating the Court of Appeals decision. Ind. Appellate Rule 58(A). A few weeks later, the General Assembly introduced Senate Bill 47, which in part sought to amend Indiana Code section 35-38-9-2—the misdemeanor expungement statute under which Gulzar filed his petition. S.B. 47, 121st Gen. Assemb., 2d Reg. Sess. (Ind. 2020). The revision clarified when the five-year waiting period would begin. Though the bill was pending when we held oral argument, both parties acknowledged that, under the proposed change, Gulzar would be entitled to expungement. The bill subsequently passed, with the relevant amendment effective immediately. See Pub. L. No. 55- 2020, § 9, 2020 Ind. Acts 286, 290 (codified as amended at I.C. § 35-38-9- 2(c)). Due to these unique circumstances, we now consider, sua sponte, whether the amendment applies retroactively to Gulzar.

Here, the amendment to the misdemeanor expungement statute is remedial—it cured a defect in the prior law. And, given the broad goals behind Indiana’s expungement scheme, coupled with the urgency with which the legislature addressed this issue, we find that applying the remedial law retroactively to Gulzar effectuates its purpose.

Individuals seeking expungement must meet several conditions. At issue here is that, before filing a petition, the person must wait a number of years after the “date of conviction.” I.C. §§ 35-38-9-2(c), -3(c), -4(c), -5(c). For those seeking expungement of a minor felony—Class D or Level 6— that was subsequently reduced to a misdemeanor, the waiting period is five years. I.C. § 35-38-9-2(c). But, until recently, it wasn’t clear when that waiting period began.

The previous statute stated, “Not earlier than five (5) years after the date of conviction . . . the person convicted of the misdemeanor may petition a court to expunge all conviction records . . . .” I.C. § 35-38-9-2(c) (2018) (emphasis added). Yet a person like Gulzar, with a reduced felony conviction, has never been convicted of a misdemeanor; rather, the minor felony was converted to a misdemeanor. See I.C. § 35-50-2-7(d). Herein lies the confusion: does the five-year waiting period begin from the felony conviction date or from the conversion date?

Within a few months, the General Assembly seemingly heeded the suggestion by amending the misdemeanor expungement statute. See § 9, 2020 Ind. Acts at 290. The revised version—enacted after we granted transfer—now provides that a person can seek expungement “five (5) years after the date of conviction . . . for the misdemeanor or the felony reduced to a misdemeanor.” I.C. § 35-38-9-2(c) (2020) (emphasis added). In other words, the legislature clarified that, for individuals like Gulzar, the five-year waiting period runs from the date of the minor felony conviction. We find that this amendment is remedial: it cured a mischief that existed in the prior statute, namely, confusion on when the waiting period begins for certain ex-offenders seeking expungement. We now determine whether the remedial statute should apply retroactively to Gulzar.

In short, we find that the remedial amendment is aimed at making expungement immediately available for individuals who (1) successfully petition for conversion of a minor felony to a misdemeanor and (2) wait five years from their felony conviction date before seeking expungement. To effectuate that purpose, we apply the remedial law retroactively to Gulzar. Conclusion

We reverse the trial court and remand with instructions to grant Gulzar’s expungement petition.

David, Massa, and Goff, JJ., concur.

Slaughter, J., dissents with separate opinion.

Slaughter, J., dissenting.

For two reasons, I respectfully dissent from the Court’s decision to apply a recent statutory amendment to Naveed Gulzar’s expungement petition. First, Gulzar expressly disclaimed application of the amended statute and asked that we review his petition under the statute in effect when he sought expungement. Second, the amended statute does not say it applies retroactively; it says only that it is “effective upon passage”. 2020 Ind. Acts 290. Given our presumption that legislation applies prospectively, the phrase “effective upon passage” is presumed to mean “has prospective effect upon passage”. I would adopt the interpretive rule that legislation applies only prospectively unless it includes a plain statement providing for retroactive effect.

On March 18, 2020, while Gulzar’s petition was pending, the disputed amendment to the expungement statute became law. 2020 Ind. Acts 286. By its terms, the amendment took effect upon passage. Id. at 290. The amendment said nothing about applying to petitions filed before the effective date. Given this silence—the antithesis of a plain statement—I would not apply the amended statute to Gulzar’s petition. Instead, and as Gulzar requests, I would review his petition under the previous statute. Applying that statute, I would affirm the trial court’s denial of his petition for the same reasons Judge Crone recites in his thoughtful opinion. Gulzar v. State, 132 N.E.3d 51, 52–57 (Ind. Ct. App. 2019), vacated. In my view, that opinion reflects the better, more faithful interpretation of the statute in effect when Gulzar sought expungement.

 

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