Adam Gaynor, Appellant, v. State of Indiana, Appellee. (2017)

Order

[1] A jury convicted Appellant of dealing in methamphetamine as a Class A felony, possession of methamphetamine as a Class C felony, maintaining a common nuisance as a Class D felony, possession of marijuana as a Class A misdemeanor, and possession of paraphernalia as a Class A misdemeanor. On October 7, 2009, this Court issued its opinion reversing Appellant's conviction for maintaining a common nuisance as a Class D felony but affirming the judgment in all other respects. Gaynor v. State, 914 N.E.2d 815 (Ind. Ct. App. 2009), trans. denied.

[2] On March 16, 2017, the trial court granted Appellant's Verified Petition for Expungement of Arrest, Criminal Charges and Conviction Records pursuant to Indiana Code section 35-38-9-2.

[3] On April 24, 2017, the Court issued an order pointing out that Indiana Code § 35-38-9-2 only allows for the expungement of misdemeanor convictions. Because Appellant was convicted of both felonies and misdemeanors, the Court noted that the trial court could not expunge all of Appellant's convictions pursuant to Indiana Code § 35-38-9-2. Consequently, the Court determined that it would not be taking any action with regard to the trial court's March 16, 2017 expungement order because all of Appellant's convictions had not been properly expunged. The Court further noted that even if Appellant's felony convictions had been properly expunged pursuant to Indiana Code § 35-38-9-4, the Court would not be obligated to issue a redacted copy of its October 7, 2009 opinion. See Ind. Code § 35-38-9-7.

[4] On June 13, 2017, the trial court issued an Amended Agreed Findings and Order Granting Petitioner's Verified Petition for Expungement of Records of Arrest, Criminal Charges and Conviction Records Pursuant to Indiana Code § 35-38-9. In its amended order, the trial court properly expunged Appellant's various convictions pursuant to Indiana Code sections 35-38-9-1, 35-38-9-2, and 35-38-9-4.

[5] Because Appellant's misdemeanor convictions have been expunged pursuant to Ind. Code § 35-38-9-2, this Court is obligated to issue a redacted version of its opinion that does not include Appellant's name. See Ind. Code § 35-38-9-6(c)(1). But when felony convictions are expunged under Ind. Code § 35-38-9-4, the Court is not obligated to issue a redacted version of its opinion. Instead, the Court merely has to mark the Appellant's records as expunged and those records remain public records. See Ind. Code § 35-38-9-7(b).

[6] Having reviewed the matter, the Court finds and orders as follows:

1. Although Appellant's convictions have now been properly expunged by the trial court, because this Court's October 7, 2009 Opinion addresses Appellant's misdemeanor and felony convictions and because expungement of Appellant's felony convictions does not require this Court to issue a redacted opinion, see Ind. Code § 35-38-9-7(b), the Court will not issue a redacted opinion in this case.

2. However, in conjunction with this order, the Court will issue an amended version of its opinion. The amended opinion will contain a new footnote that indicates Appellant's convictions have been expunged and states why the opinion has not been redacted.

3. Pursuant to Indiana Code section 35-38-9-7(b), the Clerk of this Court is directed to clearly and visibly mark the records regarding this appeal as having been expunged. Although these records have been marked as expunged, they remain public records. See Ind. Code § 35-38-9-7(b).

4. The Clerk of this Court is directed to remove the original version of this Court's opinion posted online on the computer gateway administered by the office of technology and replace it with the amended version of the opinion.

5. The Clerk of the Court is directed to send copies of the amended opinion together with copies of this order to West/Thomson Reuters, LexisNexis, Wolters Kluwer, and all other sources to which decisions/opinions of this Court are normally sent.

6. The Clerk of this Court is directed to send a copy of this order to the parties, Judge Lucy Goffinet of the Perry Circuit Court, and the Perry Circuit Court Clerk.

7. The Perry Circuit Court Clerk is directed to file a copy of this order under Cause Number 62C01-0708-FA-533, and, pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents of this order in the Record of Judgments and Orders.

[9] For the Court,

[8] May, Crone, Brown, JJ., concur.