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.



                                              4
       (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.


1
  Subsection (j) deals with petitions to expunge convictions that were not included in the original
expungement petition, and is thus inapplicable here.


                                                5
       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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