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Marshall v. State

Court of Appeals of Indiana

March 9, 2016

David Lee Marshall, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Elkhart Superior Court. The Honorable Evan S. Roberts, Judge. Trial Court Cause No. 20D01-1501-MI-004.

         ATTORNEY FOR APPELLANT: Alexander L. Hoover, Nappanee, Indiana.

         ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Andrea E. Rahman, Deputy Attorney General, Indianapolis, Indiana.

         Vaidik, C.J., and Crone, J., concur.

          OPINION

         Bailey, Judge.

         Case Summary

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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 Intoxicated.

         [¶3] 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.

         [¶4] 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 for expungement.

         [¶5] 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.

         Discussion and Decision

         [¶6] 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, ...


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