David Wulff, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] David Wulff appeals and presents the sole issue of whether the trial court abused its discretion in denying his petition for expungement. Concluding that the trial court abused its discretion, we reverse the trial court's judgment and remand with instructions.

Facts and Procedural History

[2] From 2010 to 2013, David Wulff was licensed and employed as a physician assistant. State law at that time did not permit physician assistants to prescribe Schedule II controlled substances. However, when Wulff's employer offered monetary incentives to Wulff based on the amount of money it could bill his patients, Wulff wrote several prescriptions for patients for Schedule II drugs. As a result, the State charged Wulff with two counts of dealing in a narcotic, five counts of forgery, twelve counts of dealing in a controlled substance, and five counts of acquiring a controlled substance by fraud.

[3] Pursuant to a plea agreement, Wulff pleaded guilty to one count of Class C felony forgery and received a sentence of eight years, with four years executed in community corrections and four years suspended to probation. The State dismissed the remaining charges.

[4] In 2024, Wulff petitioned the trial court for expungement of his forgery conviction and a misdemeanor battery conviction in a separate cause. The State filed its objection. The trial court conducted a hearing on the matter, at which Wulff testified, and the State presented no evidence. The court granted the expungement of Wulff's battery conviction but denied expungement of the forgery conviction. Wulff now appeals the court's denial of expungement of his felony conviction.

Discussion and Decision

[5] When a person is convicted of a crime, the conviction is a stigma that follows him through life, creating roadblocks to rehabilitation. Key v. State, 48 N.E.3d 333, 336 (Ind. Ct. App. 2015). In response to this onus, in 2013 the General Assembly enacted the expungement statutes to permit persons convicted of certain crimes to have their conviction records expunged. “By enacting the expungement statutes, our legislature intended to give individuals who have been convicted of certain crimes a second chance by providing an opportunity for relief from the stigma associated with their criminal convictions.” Burton v. State, 71 N.E.3d 24, 25 (Ind. Ct. App. 2017). Because these statutes are inherently remedial, they should be liberally construed to advance the remedy for which they were enacted. Id.

[6] Depending on the offense level, expungement may be either mandatory or discretionary. See Ind. Code §§ 35-38-9-2 to -5. Here, Wulff sought relief under Indiana Code section 35-38-9-4 (2021) for expungement of his Class C felony forgery conviction. Expungement under Subsection 35-38-9-4(e) is discretionary.

[7] Wulff argues the trial court abused its discretion by denying his petition to expunge his forgery conviction. We review a trial court's denial of a petition for expungement for an abuse of discretion. Kelley v. State, 166 N.E.3d 936, 937 (Ind. Ct. App. 2021). An abuse of discretion occurs when the court's decision is clearly against the facts and circumstances before it. Id.

[8] At the hearing, Wulff testified that he has been employed again as a physician assistant for more than three years and is working at the Wayne County Health Department. Wulff stated that his employer is aware of his conviction but that he has led a law-abiding life since his conviction, has had no additional convictions, and has had no disciplinary actions at his job. He explained that he entered into a “Physician Assistant Collaborative Agreement” with his employer, which specifically states that he “will not be prescribing controlled substances.” Ex. Vol. III, p. 5 (Ex. A). It was noted that although the laws have changed since his conviction to allow physician assistants to write prescriptions for Schedule II controlled substances, Wulff had specifically agreed not to do so in the Collaborative Agreement.

[9] Wulff further testified that he was required to submit quarterly evaluations to the licensing board, and the court admitted his quarterly employment evaluations from May 2021 through June 2024. These evaluations attest to his good work performance, showing that 100% of his charts had been audited without a finding of error and noting that he had taken the initiative to provide training to make the health department more efficient in educating and providing resources to patients and community partners. The evaluations further revealed that Wulff addressed the process of referring patients to proper services by both the health department and outside organizations. In addition, he furthered his own education regarding the diagnosis and treatment of tuberculosis by attending the Rutgers Global Tuberculosis Institute TB Intensive Workshop. He has also been active in the Indiana ECHO for Hepatitis and HIV programs and has worked to educate community partners, such as the county jail, on the benefits of treating individuals with hepatitis C. And he has increased patient registration for STD, HIV, and hepatitis treatments. See id. at 6-34 (Ex. B).

[10] For its part, the State offered no evidence in opposition to expungement. Instead, it argued that because Wulff can now work again as a physician assistant, “his second chance is fulfilled[.]” Tr. Vol. II, p. 13. However, the opportunity for a second chance is not merely the opportunity to be reemployed in one's original career. The primary purpose of the second chance provided by the expungement statutes is to clean the slate of a person's criminal history so that he will not be dogged by the stigma of a conviction in all aspects of his life. See Burton, 71 N.E.3d at 25 (expungement statutes afford second chance by providing opportunity for relief from stigma associated with criminal conviction). Moreover, while expungement under Subsection 35-38-9-4(e) is discretionary, our Supreme Court has recognized this statute must be construed liberally to accomplish its purpose. Allen v. State, 159 N.E.3d 580, 584 (Ind. 2020).

[11] On appeal, the State claims Wulff's character and the circumstances of his conviction—contributing to the local opioid crisis—do not warrant expungement. To show lack of both rehabilitation and good character, the State points to Wulff's testimony that the laws have changed regarding the authorization of physician assistants to prescribe Schedule II substances. See Appellee's Br. p. 8. This argument, however, overlooks the fact that Wulff, by assenting to and signing the Collaborative Agreement, specifically agreed not to prescribe Schedule II substances. Further, it is undeniable that controlled substances have become a heavy burden upon our communities and judicial resources. That said, our legislature has included in its opportunity for a second chance those individuals who have committed drug-related crimes.

[12] The State's arguments ignore the reality that all evidence presented to the trial court militated toward expungement. Wulff's crime, while serious, was the result of unique circumstances, and he has demonstrated he is forging a new path that involves advancing the health of his community. In sum, Wulff proved he is deserving of a second chance. See, e.g., Cline v. State, 61 N.E.3d 360, 363 (Ind. Ct. App. 2016) (reversing denial of expungement where petitioner had obtained advanced education and been promoted at work), abrogated in part on other grounds by Allen, 159 N.E.3d at 585.

[13] Although the trial court is granted discretion, this does not extend to a disregard of remedial measures enacted by our lawmakers. As previously observed, such statutes should be liberally construed to advance the remedy for which they were enacted. See Burton, 71 N.E.3d at 25. Accordingly, we conclude that the trial court abused its discretion in denying Wulff's petition for expungement.

Conclusion

[14] We reverse the trial court's judgment and remand with instructions to grant Wulff's petition to expunge his Class C felony forgery conviction.

[15] Reversed and remanded with instructions.

Baker, Senior Judge.

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.