2 STATEMENT OF THE CASE

John Alden (“ Alden ”) appeals the trial court’s denial of his petition to reduce his

C lass D felony conviction for operating while intoxicated to a C lass A misdemeanor.

We affirm.

ISSUE

Whether the trial court erroneously denied Alden’s petition.

FACTS On October 31, 1992, Deputy Donald Smith (“Deputy Smith”) of the Hancock

Sheriff ’s Department saw a blue and white Chevrolet driving erratically along US 40 in
Hancock County. When Deputy Smith pulled the vehicle over, he observed Alden in a
state of intoxication. On November 2, 1992, Alden was charged with operating while

intoxicated as a class D felony. On June 1, 1993, Alden pleaded guilty and was
sentenced to 730 days, of which 90 days was to be served on in

- home detention and the
balance on informal probation.

While Alden was being supervised, the State filed three petitions all eging that he
had either failed to appear for a random drug screen s or pay his fees. Nevertheless, the
record suggests that Alden completed his sentence on August 16, 1995.

On July 13, 2012, Alden filed a petition seeking to reduce his felony conviction to

a C lass A misdemeanor. In his petition, Alden asserted, among other things, that he had
not been convicted of a felony since the completi on of his sentence. The trial court3

scheduled a hearing for August 9, 2012. At that hearing, Alden appeared, with counsel,
along with the State. After Alden was sworn , the following colloquy took place:

PROSECUTOR: Mr. Alden you had indicated that you didn’t have any

felony convict . . .

ALDEN: You will have to speak up sir.

PROSECUTOR: You had indicated you didn’t have any felony

convictions after this case?

ALDEN: No.

PROSECUTOR: Have you had any misdemeanor convictions?

ALDEN: No. Not that I can think of.

PROSECUTOR: Since 1993 you haven’t had any?

ALDEN: Not that I can remember.

PROSECUTOR: Have you been arr ested at all since 1993?

ALDEN: Pardon me?

PROSECUTOR: Have you been arrested for anything since 1993?

ALDEN: Uh, not in the State of Indiana no.

PROSECUTOR: Okay in a different State?

ALDEN: Pardon?

PROSECUTOR: In a different State?

ALDEN: Yes sir.

PR OSECUTOR: For what?

ALDEN: I was arrested in Illinois, for a DUI.

PROSECUTOR: Um, what year was that?

ALDEN: Uh, 98. 97, 98.

PROSECUTOR: How was the case resolved?4

ALDEN: Uh, I did, they just gave me seven days in jail and

released me.

PROSECUTOR: Did y ou plead guilty?

ALDEN: According to my attorney yes sir. I, I did what my

attorney advised me to do.

PROSECUTOR: But you [pled] guilty.

ALDEN: Yes.

PROSECUTOR: Okay. I don’t have any other questions your honor.

COURT: Any uh, or any re

- direct or that’s not Re

- direct. Any

questions for your client?

COUNSEL: Yes your honor. Mr. Alden we met and we went over

the Statute as it was revised July 1, 2012 correct?

ALDEN: Correct.

COUNSEL: And you understand that one of the d isqualifiers would

be a felony conviction since your case was resolved here in Hancock County, correct?

ALDEN: Correct.

COUNSEL: And have you suffered a Felony Conviction since you

resolved this case that we are in front of the Court today?

ALDEN: No.

CO UNSEL: And are there criminal charges pending against you

today?

ALDEN: No.

COUNSEL: Okay thank you. That’s all I have.
(Tr. 7

- 9). No additional evidence was submitted. At the conclusion of the hearing , the
trial court took the matter under advisement. On August 14, 2012, the trial court denied
Alden’s petition.5 DISCUSSION

Alden appeals the trial court ’s denial of his petition. Specifically, Alden argues
that his petition should have been grante d because there was sufficient evidence to show

that he met all of the statutory requirements for reduction of his felony conviction to a

misdemeanor . The State argues that the statute in question grants the trial court

discretion i n deciding whether or n ot to grant this type of petition. As a result, since
Alden had prior probation violations and acknowledged a subsequent conviction for
operating while intoxicated, the trial court properly denied Alden’s petition.

Effective July 1, 2012, our General A ssembly amended the statute covering the
sentencing range for Class D felonies by adding the following language :

(c) Nothwithstanding subsection (a), the sentencing court may convert a Class D felony conviction to a Class A misdemeanor conviction if, after receiving a verified petition as described in subsection (d) and after conducting a hearing of which the prosecuting attorney has been notified, the court makes the followin g findings:
(1) The person is not a sex or violent offender (as defined in IC 11

- 8

- 8

- 5).
(2) The person was not convicted of a Class D felony that resulted in bodily injury to another person.
(3) The person has not been convicted of perjury under IC 35

- 44

- 2

- 1 or official misconduct under IC 35

- 44

- 1

- 2.
(4) At least three (3) years have passed since the person:
(A) completed the person’s sentence; and
(B) satisfied any other obligation imposed on the person as part of the sentence; for the Class D felo ny. (5) The person has not been convicted of a felony since the person:6 (A) completed the person’s sentence; and
(B) satisfied any other obligation imposed on the person as part of the sentence; for the Class D felony.
(6) No criminal charges are pending against the person.

Ind. Code § 35

- 50

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- 7(c) (emphasis added). The interpretation of a statutory scheme is a question of law reserved for the

courts. Garcia v. State , 979 N.E.2d 156 (Ind. Ct. App. 2012). When determining the
legislature’s intent, we look at the “plain language of the statute and attribute the
common, ordinary meaning to terms found in everyday speech.” Id . at 158. If the word
“shall” is used, it is construed as mandatory language creating a statutory right to a
particular outcome after c ertain conditions are met. Romine v. Gagle , 782 N.E.2d 369,
379 (Ind. Ct. App. 2003)
, trans. denied. However, the “term ‘may’ in a statute ordinarily
implies a permissive condition and a grant of discretion.” Id. at 380. A trial court abuses

that discret ion when its decision is clearly against the logic and effect of the facts and

circumstances before it. An

- Hung Yao v. State , 975 N.E.2d 1273 (Ind. 2012).

It seems clear that the General Assembly has adopted a policy wherein trial courts
can reward good behavior by removing the stigma of certain Class D felony conviction s

.
See State v. Brunner , 947 N.E.2d 411 (Ind. 2011) (modification of conviction for good
behavior may be equitable and desirable, but only after legislature grants authority to

courts). H owever, the language used in the statute does not create a right to the reduction

of one’s Class D felony conviction to a misdemeanor. The word “may” shows an intent
by the legislature to give trial court s the discretion to grant or deny a petition , even if all
of the statutory requirements have been met by the Petitioner. While it is best for trial7

court s to keep in mind the policy preference of reward ing good behavior with a reduction
of a Class D felony conviction to a Class A misdemeanor, trial courts are free to deny a
petition as long as the denial is supported by the logic and effect of the facts.

Here, the evidence provides a basis for the trial court’s denial of Alde n ’s petition.
For example, while Alde n completed his sentence, it was not without incident. Three
probation violations were filed during the period of his supervision, with a n arrest

warrant be in g issued for at least one of those violations. More importantly, the testimony
shows reluctance, even evasiveness, on the part of Al de n to acknowledge his subsequent
arrest and conviction in Illinois for operating while intoxicated

. Further, Alde n ’s
testimony was the only evidence supporting Alde n ’s assertion that his conviction in

Illinois was not a felony . No additional evidence wa s submitted to corroborate his
testimony. We are aware that a significant period of time has p assed since Alde n ’s

convictions. However, given the lack of additional evidence, the evasiveness, and
equivocal nature of Alde n ’s testimony concerning his Illin ois conviction, we cannot say

that the trial court was unconvinced that the Illinois conviction was indeed a
misdemeanor. As a result, we find no abuse of discretion.

Affirmed.

ROBB, C.J., and MAY, J., concur.