FOR PUBLICATION
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
May 28 2014, 9:47 am
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 C. Bonfiglio, Judge
Cause No. 20D06-1307-MI-134
May 28, 2014
OPINION – FOR PUBLICATION
MATHIAS, Judge
Craig Alvey (“Alvey”) appeals the Elkhart Superior Court’s denial of his petition
to expunge the records of his conviction. On appeal, Alvey claims that the trial court
erred in concluding that Alvey could not have the records of his conviction expunged
because Alvey had violated the terms of his probation.
We affirm.
Facts and Procedural History
On January 24, 2007, Alvey pleaded guilty to Class D felony possession of
cocaine and was sentenced to eighteen months, all suspended to probation. On July 18,
2007, Alvey admitted to violating the terms of his probation, and the trial court sentenced
him to “20 days to be served 5 COWP Weekends.” Appellant’s App. p. 17. On February
22, 2008, Alvey again admitted to violating the terms of his probation. This time, the
trial court imposed the balance of Alvey’s previously-suspended sentence and
recommended that it be served in Community Corrections. Alvey was accepted into the
Community Corrections program, where he served the remainder of his sentence. Alvey
completed his sentence on September 18, 2008. On September 12, 2012, Alvey
successfully petitioned 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 Class A
misdemeanor conviction. Alvey claimed that he had successfully completed his sentence
and was therefore eligible for expungement. The State disagreed and noted that Alvey
had twice admitted to violating the terms of his probation. After a hearing on the matter,
the trial court denied Alvey’s petition on October 1, 2013. Alvey now appeals.
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Standard of Review
Here, the parties do not dispute the operative facts and argue only whether the
relevant expungement statute is applicable to these facts. Thus, the question before us is
one of statutory interpretation. The interpretation of statutes is a pure question of law we
review de novo, and we therefore need not defer to the trial court’s interpretation.
Sanders v. Bd. of Comm’rs of Brown County, 892 N.E.2d 1249, 1252 (Ind. Ct. App.
2008); Johnson v. Morgan, 871 N.E.2d 1050, 1052-53 (Ind. Ct. App. 2007). Our goal in
construing a statute is to determine, give effect to, and implement the intent of our
General Assembly. Sanders, 892 N.E.2d at 1252 (citing Sales v. State, 723 N.E.2d 416,
420 (Ind. 2000)). We presume that the General Assembly intended that the language
used in the statute be applied logically and not to bring about an unjust or absurd result.
Id.
To determine the intent of the legislature, we examine the statute as a whole and
also read sections of an act together so that no part is rendered meaningless if it can be
harmonized with the remainder of the statute. Id. (citing City of N. Vernon v. Jennings
Nw. Reg’l Utils., 829 N.E.2d 1, 4 (Ind. 2005)). The best evidence of legislative intent is
the language of the statute itself. U.S. Steel Corp. v. N. Ind. Pub. Serv. Co., 951 N.E.2d
542, 552 (Ind. Ct. App. 2011). Thus, we must give all words their plain and ordinary
meaning unless otherwise indicated by statute. Id. When the language in a statute is
ambiguous or uncertain, we may look not only to the language, but also to the nature and
subject matter of the act and the object to be accomplished thereby in ascertaining the
legislative intent. Johnson, 871 N.E.2d at 1053. If, however, the statutory language is
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clear and unambiguous on its face, we will give such a statute its apparent and obvious
meaning. U.S. Steel, 951 N.E.2d at 552.
Discussion and Decision
The expungement statute at issue in the present case provides:
(a) This section applies only to a person convicted of a misdemeanor,
including a Class D felony reduced to a misdemeanor.
(b) Not earlier than five (5) years after the date of conviction (unless the
prosecuting attorney consents in writing to an earlier period), the person
convicted of the misdemeanor may petition a court to expunge all
conviction records, including records contained in:
(1) a court’s files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or services to
the petitioning person under a court order;
that relate to the person’s misdemeanor conviction.
(c) A person who files a petition to expunge conviction records shall pay
the filing fees required for filing a civil action, and the clerk shall distribute
the fees as in the case of a civil action. A person who files a petition to
expunge conviction records may not receive a waiver or reduction of fees
upon a showing of indigency.
(d) If the court finds by clear and convincing evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person does not have an existing or pending driver’s license
suspension;
(4) the person has successfully completed the person’s sentence,
including any term of supervised release, and satisfied all other
obligations placed on the person as part of the sentence; and
(5) the person has not been convicted of a crime within the previous
five (5) years;
the court shall order the conviction records described in subsection (b)
expunged in accordance with section 6 of this chapter.
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Ind. Code § 35-38-9-2 (emphasis added).1
Here, Alvey claims that he met all of the requirements set forth in subsection (d)
of the expungement statute and that the trial court was therefore required to expunge the
records of his conviction. We disagree.
Subsection (2)(d)(4) clearly and unambiguously requires that Alvey had to prove
by clear and convincing evidence that he “successfully completed [his] sentence,
including any term of supervised release.” (emphasis added). Here, it is uncontradicted
that Alvey twice violated the terms of his probation. He therefore did not successfully
“complete[] his sentence, including any term of supervised release” as required by the
expungement statute. See Pittman v. State, No. 06A05-1305-CR-243, 2014 WL 1711011,
slip op. at 10-11 (Ind. Ct. App. Apr. 30, 2014) (concluding, under prior version of the
expungement statute, that defendant had not successfully completed the terms of his
sentence where he had violated the terms of his probation by committing another offense).
The fact that, here, Alvey later successfully completed his sentence in Community
Corrections does not negate the fact that he had already violated the terms of his
probation. As we explained in Pittman, we think that the intent of the General Assembly,
as expressed by this statutory language, was to allow those persons who had successfully
completed their sentences without incident to petition the court after the passage of a
certain amount of time (here, five years) to expunge the records of their conviction. Id.,
1
We refer here to the version of Indiana Code section 35-38-9-2 that was in effect at the time Alvey filed
his petition and when the trial court ruled on his petition. This version of section 35-38-9-2 was effective
July 1, 2013. We note that this statute was subsequently amended by Ind. Pub. Law 181-2014 § 8,
effective March 26, 2014, well after the trial court ruled on Alvey’s petition. Both parties refer to the
version of the statute quoted above, and neither party claims that the current version should govern this
appeal.
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slip op. at 10. Here, however, Alvey admittedly violated the terms of his probation twice,
and he therefore cannot meet all of the requirements of the expungement statute.
Accordingly, the trial court properly denied Alvey’s petition to expunge his
conviction on the grounds that Alvey failed to successfully complete the terms of his
sentence, including any terms of supervised release.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
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