Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                 Jan 20 2015, 9:51 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

RYAN M. SPAHR                                   GREGORY F. ZOELLER
Spahr Law Office, LLC                           Attorney General of Indiana
Indianapolis, Indiana
                                                KRISTIN GARN
ADAM S. MEARS                                   Deputy Attorney General
Mears Law, LLC                                  Indianapolis, Indiana
Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RITCHIE TOWNSEND,                               )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )       No. 49A02-1407-MI-462
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Stanley Kroh, Judge Pro Tempore
                             Cause No. 49G03-1403-MI-7437



                                     January 20, 2015

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       Ritchie Townsend appeals the trial court’s denial of his petition to expunge his

1988 conviction for class B felony criminal confinement. Finding no error, we affirm.

                                          FACTS

       On July 5, 1988, Townsend pleaded guilty to class B felony criminal confinement.

He was sentenced to ten years, with two years suspended to probation. Townsend

completed his eight-year sentence, successfully finished his two years of probation, and

paid his court-ordered debt. Since his release, he has amassed no additional criminal

history.

       On March 11, 2014, Townsend filed a petition to expunge his conviction. On May

21, 2014, the trial court denied Townsend’s petition based on its consideration of “the

nature of the conviction, among other things, this being an offense against a person . . . .”

Appellant’s App. p. 13. Townsend now appeals.

                             DISCUSSION AND DECISION

       Townsend argues that the trial court abused its discretion in denying his

expungement petition. An abuse of discretion is found only where the decision is clearly

against the logic and effect of the facts and circumstances before the court or if the court

has misinterpreted the law. State v. Willits, 773 N.E.2d 808, 811 (Ind. 2002).

       The version of Indiana Code section 35-38-9-4 that was in effect at the time

Townsend filed his petition provides, in relevant part, as follows:

       (e)    If the court finds by clear and convincing evidence that:

              (1)    the period required by this section has elapsed;

                                             2
                (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 eight (8) years;

        the court may order the conviction records described in subsection (c)
        marked as expunged in accordance with section 7 of this chapter. . . .

(Emphasis added).1 Townsend concedes that the language of this statute is discretionary.

See Taylor v. State, 7 N.E.3d 362, 365-66 (Ind. Ct. App. 2014) (observing that “[t]he

legislature’s decision to use ‘may’ instead of ‘shall’ as it did in Section 35-38-9-4(e)

indicated that it intended to give trial courts discretion not to grant expungement even

when all of the statutory requirements were satisfied under that particular section”). In

other words, even if a petition meets all of the statutory requirements, the decision to

grant or deny the petition to expunge rests within the trial court’s sound discretion. See

Bradley v. State, 765 N.E.2d 204, 213 (Ind. Ct. App. 2002) (noting that “‘discretion’

implies the absence of a hard and fast rule or a mandatory procedure regardless of

varying circumstances”).

        In its order denying Townsend’s petition, the trial court explained that its denial

rested on the nature of the conviction, specifically, “this being an offense against a

1
  This statute was amended by Indiana Public Law 181-2014 Section 10, effective March 26, 2014—
approximately two weeks after Townsend filed his petition. Both parties refer to the version of the statute
that was effective at the time Townsend’s petition was filed, and we follow suit herein.
                                                    3
person . . . .” Appellant’s App. p. 13. The version of the criminal confinement statute in

effect in 1988 provided that a criminal confinement conviction could be elevated to the

level of a B felony if the defendant committed the act while armed with a deadly weapon

or caused serious bodily injury to the victim. Ind. Code § 35-38-9-4 (West 1988). While

we do not know which of these conditions was fulfilled to elevate Townsend’s conviction

to a class B felony, it was reasonable for the trial court to infer that one of the two had to

have been met in this case. Nothing in Indiana Code section 35-38-9-4 indicates that the

trial court may not consider the nature of the conviction in determining whether to grant

or deny a petition to expunge the conviction. Therefore, we find nothing in this record to

support an assertion that the trial court abused its discretion in denying Townsend’s

petition to expunge his conviction.2

        We note that if a petition for expungement is denied due to the trial court’s

exercise of its discretion under Indiana Code section 35-38-9-4, another petition for

expungement may be filed at least three years from the date of the denial. I.C. § 35-38-9-

9(i). Townsend, therefore, may file a subsequent petition for expungement on or after

May 21, 2017.

        The judgment of the trial court is affirmed.

VAIDIK, C.J., and RILEY, J., concur.




2
  Townsend argues that the trial court erroneously took charges to which he did not plead guilty into
account. There is no indication in the record, however, that the trial court did so. Therefore, we decline
to reverse on this basis.
                                                    4
