Supreme Court grants transfer in expungement case involving converted felony conviction

The waiting period to expunge a misdemeanor conviction is five years from the date of the conviction. For a class D felony, the wait is eight years. What happens when a person succeeds in having his felony conviction converted to a misdemeanor? The wait time is five years, but when does the time begin to run? That’s the issue in N.G. v. State, an expungement case headed to the Indiana Supreme Court.

On December 19, 2019 the Supreme Court decided to accept transfer of the case, vacating the opinion of the Indiana Court of Appeals issued September 6th. Oral argument in the Supreme Court is set for February 20th.

Background

N.G. was convicted of a class D felony in April 2006. In August 2016 he succeeded in having the conviction converted to a misdemeanor. In November 2018 he petitioned to have the conviction expunged. His petitioned was denied on the ground that five years had not passed from the time the conviction was converted.

IC 35-38-9-2 requires that a person convicted of a class D felony that was reduced to a misdemeanor wait five years “after the date of conviction” to petition for expungement. The issue in the case is whether “the date of conviction” refers to the original date of conviction or the date on which the felony was converted to a misdemeanor. In his appeal N.G. argues the only conviction in his case occurred in 2006, although it was converted in 2016. His 2018 petition is therefore timely, he reasons.

The State of Indiana contends N.G. must wait five years from the time his felony was converted to a misdemeanor. That would mean the conviction is not eligible for expungement until August 2021. The state reasons that the conversion to a misdemeanor in 2016 was itself a conviction and triggered a new waiting period.

The trial court in Elkhart County and the Court of Appeals sided with the State. The appellate court found support for this result in the statute that allows a trial court to convert a felony conviction to a misdemeanor. That statute, IC 35-50-2-7, permits a prosecutor to petition to have the conviction converted back to a felony under certain conditions for up to five years. According to the court, the statute only works if a person is required to wait five years after the conversion to petition for expungement. Otherwise, the prosecutor could in some cases be prevented from having convictions converted back to felonies because the convictions have already been expunged.

Implications

Of course, if N.G. had not had his felony conviction converted he would have been eligible for expungement in 2014, eight years after his conviction. Also, the effect of the Court of Appeals’ reading of the expungement statute is that a person who has a class D felony conviction that was converted to a class A misdemeanor has to wait longer for expungement than someone who merely has a class D felony conviction. That’s because a person must wait three years after completing his sentence before petitioning to convert a class D felony conviction to a class A misdemeanor and would then have to wait five more years before petitioning for expungement.

Amendment in the works

A proposed 2020 amendment to IC 35-38-9-2 addresses the problem. Contained in Senate Bill No. 47, the amendment provides the five-year waiting period where a felony is reduced to a misdemeanor runs from the date of conviction for the felony.

Dan McNamara is a litigation attorney in Fort Wayne, Indiana. His practice includes work with clients in all Indiana counties in having their criminal records sealed.

Disclaimer: This article is made available for educational purposes only and is not intended as legal advice. If you have any questions about any matters in this article, please contact the author directly.