FOR PUBLICATION
Aug 06 2014, 8:58 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELIZABETH A. BELLIN GREGORY F. ZOELLER
Elkhart, Indiana Attorney General of Indiana
HENRY A. FLORES, JR.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CRAIG ALVEY, )
)
)
Appellant-Petitioner, )
)
vs. ) No. 20A04-1310-MI-533
)
STATE OF INDIANA, )
)
)
Appellee-Respondent. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable David Bonfiglio, Judge
Cause No. 20D06-1307-MI-134
August 6, 2014
OPINION ON REHEARING – FOR PUBLICATION
MATHIAS, Judge
Craig Alvey (“Alvey”) has filed a Petition for Rehearing of our opinion affirming
the Elkhart Superior Court’s denial of Alvey’s petition to expunge the records of his
conviction for Class A misdemeanor possession of cocaine. We grant Alvey’s Petition
for Rehearing for the limited purpose of addressing a perhaps unique question presented
in his petition, but otherwise affirm our original opinion in full.
Facts and Procedural History
As explained in our original opinion, Alvey pleaded guilty to Class D felony
possession of cocaine in 2007 and was sentenced to eighteen months probation. Alvey
twice admitted to violating the terms of his probation and was eventually ordered to serve
his sentence in Community Corrections. Alvey then successfully completed his sentence
in Community Corrections. In 2012, Alvey successfully petitioned the trial court to have
his Class D felony conviction reduced to a Class A misdemeanor.
On July 2, 2013, Alvey filed a petition to expunge the records of his now Class A
misdemeanor conviction, but the trial court denied this petition because Alvey had not
met all the requirements of the version of Indiana Code section 35-38-9-2 in effect at that
time governing expungement of the records of a conviction for a Class A misdemeanor,
including a Class D felony that has been reduced to a Class A misdemeanor. Specifically,
that version of the applicable expungement statute required that the petitioner
“successfully complete[] the person’s sentence, including any term of supervised
release[.]” I.C. § 35-38-9-2(d) (2013). Alvey appealed, and we affirmed the trial court’s
denial of his petition in our original opinion, concluding that Alvey did not successfully
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complete his sentence, including the terms of his supervised release, because he had
twice violated the terms of his probation. Alvey v. State, 10 N.E.3d 1031, 1034 (Ind. Ct.
App. 2014) (citing Pittman v. State, 9 N.E.3d 179, 184 (Ind. Ct. App. 2014)).
Discussion and Decision
In his Petition for Rehearing, Alvey first claims we should retroactively apply the
current version of Indiana Code section 35-38-9-2, which was amended effective March
26, 2014, to eliminate the requirement that the petitioner must successfully complete the
person’s sentence, including any term of supervised release. See I.C. § 35-38-9-2(d)
(2014). We disagree. First, this is an issue presented for the first time in Alvey’s Petition
for Rehearing. See Shepherd v. State, 985 N.E.2d 362, 363 (Ind. Ct. App. 2013) (noting
well-established rule that new issues may not be presented for the first time in a petition
for rehearing), trans. denied. Moreover, we held in Alden v. State, 10 N.E.3d 1028,
1030-31 (Ind. Ct. App. 2014), that the version of the expungement statute in effect at the
time of the time of the filing of the expungement petition is controlling.
However, Alvey’s Petition for Rehearing presents another issue which we believe
should be addressed. Specifically, Alvey claims that he should not be required to wait
three years before being permitted to file another petition to expunge the records of his
Class A misdemeanor conviction. The version of Indiana Code section 35-38-9-9 in
effect at the time of Alvey’s expungement petition provided in part:
(i) This subsection applies only to a petition to expunge conviction
records filed under sections 2 through 5 of this chapter. This subsection
does not apply to a petition to seal arrest records under section 1 of this
chapter. Except as provided in subsection (j), a petitioner may file only
one (1) petition for expungement during the petitioner’s lifetime. For
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purposes of this subsection, all petitions for expungement filed in separate
counties for offenses committed in those counties count as one (1) petition
if they are filed in one (1) three hundred sixty-five (365) day period.
(j) A petitioner whose petition for expungement has been denied on the
merits, in whole or in part, may file a subsequent petition for expungement
with respect to one (1) or more convictions included in the initial
expungement petition that were not expunged. A subsequent petition for
expungement may be filed not earlier than three (3) years following the
denial of a previous expungement petition. A subsequent petition for
expungement may not include any conviction that was not included in the
initial expungement petition.
I.C. § 35-38-9-9 (2013) (emphases added). Thus, under the prior version of the statute,
Alvey would have had to wait a period of three years after the denial of his original
expungement petition before he would have been permitted to file another expungement
petition. Alvey now argues that considerations of public policy and judicial economy
should permit him to file another petition to expunge under the current statute without
having to wait for three years.
We agree with Alvey that he should not have to wait for three years to file a new
petition to expunge, but we need not resort to considerations of public policy or judicial
economy. Instead, we consider only the plain language of the now-current version of
Indiana Code section 35-38-9-9, which provides in relevant part:
(h) This subsection applies only to a petition to expunge conviction
records filed under sections 2 through 5 of this chapter. This subsection
does not apply to a petition to expunge arrest records under section 1 of this
chapter. Except as provided in subsections (i) and (j), a petitioner may file
a petition for expungement only one (1) time during the petitioner’s lifetime.
For purposes of this subsection, all petitions for expungement filed in
separate counties for offenses committed in those counties count as one (1)
petition if they are filed in one (1) three hundred sixty-five (365) day period.
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(i) A petitioner whose petition for expungement has been denied, in
whole or in part, may file a subsequent petition for expungement with
respect to one (1) or more convictions included in the initial expungement
petition that were not expunged. However, if the petition was denied due to
the court’s exercise of its discretion under section 4 or 5 of this chapter, a
subsequent petition for expungement may be filed only after the elapse of
three (3) years from the date on which the previous expungement petition
was denied. Except as provided in subsection (j),[1] [a] subsequent petition
for expungement may not include any conviction that was not included in
the initial expungement petition.
I.C. § 35-38-9-9 (2014) (emphases added).
Subsection (h) of the current version of Section 9 provides a general rule that a
petitioner may file only one petition for expungement during the petitioner’s lifetime, but
notes that exceptions to this general rule are contained in Subsections (i) and (j).
Subsection (i) provides generally that a petitioner whose petition for expungement was
denied may file a subsequent petition for expungement with respect to a conviction that
was included in the original expungement petition, but which was not expunged.
Subsection (i) then provides for a three-year waiting period, but only if the original
expungement petition was denied due the trial court’s exercise of discretion under
Indiana Code sections 35-38-9-4 and -5, which govern the expungement of certain felony
convictions. Because Alvey’s original expungement petition was not denied due to the
exercise of the trial court’s discretion under sections 4 or 5, the three-year waiting period
would be inapplicable to any subsequent expungement petition Alvey might file under
the now-current version of Indiana Code section 35-38-9-2.
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Subsection (j) deals with petitions to expunge convictions that were not included in the original
expungement petition, and is thus inapplicable here.
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In short, the plain and unambiguous language of the new version of Indiana Code
section 35-38-9-9 does not contain a three-year waiting period for new petitions unless
certain conditions are present, and those conditions do not apply here. Accordingly, we
conclude that the three-year waiting period does not apply to any new petition Alvey may
file to expunge his Class A misdemeanor conviction under the new, more liberal
standards of Indiana Code section 35-38-9-2 (2014). This observation aside, we affirm
our original opinion in all respects.
FRIEDLANDER, J., and PYLE, J., concur.
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