COA affirms denial of felony expungement

A DeKalb County man must retain a felony conviction on his criminal record after the Indiana Court of Appeals on Wednesday upheld the trial court’s decision not to grant his petition to expunge that conviction.

In W.R. v. State of Indiana, 17A03-1703-XP-571, W.R., the manager of a Fort Wayne pest control company, was convicted in 1999 on two felony drug charges and served his related sentence. He was then convicted in 2007 of misdemeanor operating while intoxicated, and was also arrested at another time for an offense that did not result in conviction.

W.R. filed a petition in December 2016 to expunge both of his convictions and his arrest, arguing that he had been gainfully employed for the last seven years and had even been invited by the probation department to speak at a local high school. The DeKalb Superior Court agreed to expunge the misdemeanor charge and the arrest, but denied expungement of the felony conviction because the nature of that conviction — dealing drugs — could be relevant to businesses deciding whether to exclude certain persons from their premises.

W.R. appealed, but the Indiana Court of Appeals affirmed the trial court’s decision on Wednesday. Pointing to Indiana Code section 35-38-9-4(e) (2015), Judge Melissa May first noted the statutory language says a court “may” grant an expungement if statutory requirements are met, not must.

Further, though W.R. pointed the decision in Cline v. State, 61 N.E.3d 360, 360 (Ind. Ct. App. 2016) — in which the trial court was found to have abused its discretion in denying an expungement — as analogous to his situation, May noted that Cline did not commit any additional crimes after her felony convictions, as W.R. did. Further, Cline included a “troubling articulation” of the trial court’s evaluative process, a problem that was not present in the instant case, the judge said.

“That fact, together with the later conviction for operating while intoxicated, leads us to hold the trial court did not improperly exercise its discretion,” she wrote. “To do otherwise is to reweigh the evidence and substitute our judgment for that of the trial court.”