IVESTER v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Guy Ivester appeals from the denial of his petition to expunge the records of a prior felony conviction and a prior misdemeanor conviction. Because we conclude that Ivester has not established that the trial court abused its discretion in declining to expunge the records of his felony conviction but that it did with regard to his misdemeanor conviction, we affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[2] In 1991, Ivester was convicted of Class A misdemeanor resisting law enforcement in cause number 33C03-9107-CM-662 (“Cause No. 662”). In 2009, Ivester was convicted of Class A felony dealing in a schedule II controlled substance in cause number 33C01-0810-FA-13 (“Cause No. 13”). On October 3, 2023, Ivester petitioned the trial court to expunge the records of these criminal convictions. The trial court held a hearing on Ivester's petition, and, on June 13, 2024, denied it as to both convictions. On September 24, 2024, the trial court denied Ivester's motion to correct error.

Discussion and Decision

[3] Expungement petitions filed under Indiana Code sections 35-38-9-4 and 35-38-9-5 (applicable to felony convictions) are discretionary, and a trial court's rulings on them are generally reviewed for an abuse of that discretion. Allen v. State, 159 N.E.3d 580, 583 (Ind. 2020). “An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.” Id. at 585 (citation and quotation marks omitted). In contrast, expungement petitions filed pursuant to Indiana Code section 35-38-9-2 (applicable to misdemeanor convictions) are not discretionary and shall be granted if all relevant statutory requirements are satisfied. See, e.g., P.M. v. State, 165 N.E.3d 602, 604 (Ind. Ct. App. 2021).

A. Class A Felony Dealing in a Schedule II Controlled Substance in Cause No. 13

[4] Ivester contends that the trial court abused its discretion in refusing to expunge records of his felony conviction in Cause No. 13. As an initial matter, Ivester has waived any claim that he is entitled to expungement pursuant to Indiana Code section 35-38-9-4. Ivester claims for the first time on appeal that he is entitled to expungement pursuant to Indiana Code section 35-38-9-4,¹ and it is well-settled that a party may not raise a claim for the first time on appeal. See, e.g., Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011) (explaining that an appellant may not appeal on grounds other than those raised below).

[5] We therefore restrict our analysis to Ivester's properly-preserved argument regarding Indiana Code section 35-38-9-5, which provides, in part, that a trial court may order conviction records expunged if it finds by a preponderance of the evidence that all of the following have occurred: it has been ten years since the date of conviction or five years from the completion of the sentence, whichever is later; there are no pending charges against the petitioner; the petitioner has paid all fines, fees, and court costs, and satisfied any restitution obligations imposed as part of a sentence; the person has not been convicted of a felony or misdemeanor within the previous ten years; and the prosecuting attorney has consented in writing to the expungement of the person's criminal records. At the very least, Ivester did not have the prosecutor's consent to expunge his Class A felony conviction in Cause No. 13, fatally undercutting any claim based on Indiana Code section 35-38-9-5(e)(5).

B. Class A Misdemeanor Resisting Law Enforcement in Cause No. 622

[6] Ivester contends, and the State concedes, that the trial court erred in denying his request to expunge his misdemeanor conviction in Cause No. 622. A trial court “shall order the conviction records [․] expunged” if the trial court finds that more than five years have passed since the date of conviction; there are no other charges pending against the petitioner; the petitioner has paid all fines, fees, court costs, and restitution; and the petitioner has not been convicted of a crime within the previous five years. Ind. Code § 35-38-9-2(e) (emphasis added). As the State acknowledges, it is undisputed that all of these requirements have been satisfied with regard to Ivester's misdemeanor conviction in Cause No. 622, requiring expungement of its records. We remand with instructions for the trial court to expunge records related to that conviction.

[7] We affirm in part, reverse in part, and remand with instructions.

FOOTNOTES

1.   In the trial court, Ivester petitioned for expungement pursuant to Indiana Code sections 35-38-9-1, - 2, -3, - 5, -6, -8, and -9.

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur.