The Indiana Court of Appeals upheld the denial of a man’s motion to strike for a violent burglary he participated in two decades ago following a remand from the Indiana Supreme Court .
The affair of Brian J. Allen v. Indiana State, 21A-XP-368, came before the COA a second time after a December 2020 dismissal by the Indiana judges.
Brian Allen and three other conspirators robbed the home of an elderly couple in West Harrison in 2002. During the burglary, owners Larry and Judith Pohlgeers were hit with a lead pipe by two of the men, while Allen and another friend were waiting outside.
Allen pleaded guilty to Class B criminal conspiracy to commit burglary and was sentenced to 16 years in prison with an eight-year suspended sentence. His sentence was later changed and after serving nearly three years in prison, Allen was placed on probation.
He successfully completed his probation and was released in 2015. But Allen was denied expungement in 2018 due to his admission that Larry suffered serious bodily harm as a result of the burglary, and due to the law of permissive expungement, which exempts convictions for crimes resulting in grievous bodily harm.
The COA was overturned in February 2020, finding that the Dearborn Superior Court misinterpreted the law because Allen’s crime did not result in serious bodily harm.
The judges also quashed and remanded after finding that the trial court “may have dismissed the motion 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 motion, prompting Allen to argue on a second appeal that the trial court failed to give enough weight to the rehabilitation efforts he had made. since his conviction.
However, the COA in a decision on Tuesday found that the trial court did not abuse its discretion in rejecting his motion a second time. He declined to reassess the evidence about whether the trial court gave enough weight to his rehabilitation efforts.
“The trial court’s findings make it 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 wrote. May.
“…The trial court did not abuse its discretion when it denied Allen’s motion to strike,” May concluded. “We therefore confirm the decision of the trial court.”