from the Elkhart Superior Court. The Honorable Evan S.
Roberts, Judge. Trial Court Cause No. 20D01-1501-MI-004.
FOR APPELLANT: Alexander L. Hoover, Nappanee, Indiana.
FOR APPELLEE: Gregory F. Zoeller, Attorney General of
Indiana; Andrea E. Rahman, Deputy Attorney General,
C.J., and Crone, J., concur.
David Lee Marshall (" Marshall" ) appeals the trial
court's order denying his petition for expungement of
Class D felony and misdemeanor records. He presents the sole
issue of whether he was entitled to expungement because he
had no subsequent criminal convictions, despite his
admission, as a requirement of a pretrial diversion program,
to committing another crime. We affirm.
and Procedural History
In 1992, Marshall was convicted of Criminal Recklessness and
Operating While Intoxicated, as misdemeanors. In 1995, he was
convicted of Operating While Intoxicated, as a misdemeanor.
In 1999, he was convicted of Operating While Intoxicated, as
a Class D felony. In 2002, he was convicted of misdemeanor
battery and he pled guilty to Public Intoxication, a Class B
misdemeanor. In 2004, he was found guilty of misdemeanor
Battery. In 2005, he was again convicted of misdemeanor
Operating While Intoxicated and Public Intoxication. In 2006,
he pled guilty to a second felony, Operating While
On April 26, 2013, Marshall was charged with Operating a
Vehicle as a Habitual Traffic Violator, a Class D felony. On
September 4, 2013, the State added an additional count:
Driving While Suspended, a Class A misdemeanor. On September
13, 2013, Marshall signed a pre-trial diversion agreement
admitting that he had committed the offense of Driving While
Suspended. The charges were dismissed upon Marshall's
completion of the pre-trial diversion program.
On January 9, 2015, Marshall filed his " Verified
Petition for Expungement of Records of Misdemeanor
Convictions Under I.C. 35-38-9-2 and Minor Class D or Level 6
felony Convictions under I.C. 35-38-9-3." (App. at 44.)
The State opposed the petition, contending that Marshall had
not remained crime-free during the requisite period of time
On May 14, 2015, the trial court conducted a hearing on the
expungement petition. The petition was denied on June 30,
2015, the trial court having concluded that Marshall had
committed a crime in 2013. This appeal ensued.
Marshall argues that the trial court erroneously denied his
petition for expungement because he met the statutory
requirements under Indiana Code Sections 35-38-9-3 (Class D
or Level 6 felony) and 35-38-9-2 (misdemeanor) and he is
entitled to expungement upon satisfaction of the statutory
requirements. The State responds that, despite the lack of a
criminal conviction, the trial court properly considered the
mandate of Indiana Code Section 35-38-9-9(d), requiring the
petitioner to prove that the facts alleged in the verified
petition were true, ...