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Alvey v. State

Court of Appeals of Indiana

August 6, 2014

CRAIG ALVEY, Appellant-Petitioner,
v.
STATE OF INDIANA, Appellee-Respondent

APPEAL FROM THE ELKHART SUPERIOR COURT. The Honorable David Bonfiglio, Judge. Cause No. 20D06-1307-MI-134.

ATTORNEY FOR APPELLANT: ELIZABETH A. BELLIN, Elkhart, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, HENRY A. FLORES, JR., Deputy Attorney General, Indianapolis, Indiana.

MATHIAS, Judge. FRIEDLANDER, J., and PYLE, J., concur.

OPINION

Page 73

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 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

Page 74

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 ...


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