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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Court of Appeals of Indiana has affirmed the denial of a man’s expungement petition for a violent burglary he took part in two decades ago following a remand from the Indiana Supreme Court.
The case of Brian J. Allen v. State of Indiana, 21A-XP-368, came before the COA a second time following a December 2020 remand from Indiana justices.
Brian Allen and three other conspirators burglarized the home of an elderly couple in West Harrison in 2002. During the burglary, homeowners Larry and Judith Pohlgeers were hit with a lead pipe by two of the men, while Allen and another friend waited outside.
Allen pleaded guilty to Class B felony conspiracy to commit burglary and was sentenced to 16 years in prison with eight years suspended. His sentence was later modified, and after serving nearly three years in prison, Allen was placed on probation.
He successfully completed probation and was released in 2015. But Allen was denied an expungement in 2018 because of his admission that Larry had suffered serious bodily injury as a result of the burglary, and because of the permissive expungement statute, which exempts convictions of crimes resulting in serious bodily injury.
The COA reversed in February 2020, finding the Dearborn Superior Court had improperly interpreted the statute because Allen’s crime didn’t result in serious bodily injury.
Justices likewise reversed and remanded after finding that the trial court “may have denied the petition on the erroneous belief that Indiana Code section 35-38-9-4(b)(3) rendered the defendant ineligible for expungement.”
But the trial court in February 2021 again denied the petition, prompting Allen to argue on a second appeal that the trial court did not give sufficient weight to the rehabilitative efforts he had made since his conviction.
However, the COA in a Tuesday decision concluded the trial court did not abuse its discretion in denying his petition for a second time. It declined to reweigh the evidence as to whether the trial court gave sufficient weight to his rehabilitative efforts.
“The trial court’s findings make clear that it considered the nature and circumstances of Allen’s crime and Allen’s character, including his rehabilitation efforts since his conviction,” Judge Melissa May wrote.
“… The trial court did not abuse its discretion when it denied Allen’s petition for expungement,” May concluded. “We accordingly affirm the decision of the trial court.”
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