FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

BRYAN LEE CIYOU GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

MONIKA PREKOPA TALBOT

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JOHN ALDEN, )

)

Appellant-Defendant, )

)

vs. ) No. 30A01-1209-CR-412

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE HANCOCK SUPERIOR COURT

The Honorable Dan E. Marshall, Judge

Cause No. 30D02-9211-CF-519

January 29, 2013

OPINION – FOR PUBLICATION

PYLE, Judge
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STATEMENT OF THE CASE

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

Class D felony conviction for operating while intoxicated to a Class 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 alleging that he

had either failed to appear for a random drug screens 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 Class A misdemeanor. In his petition, Alden asserted, among other things, that he had 

not been convicted of a felony since the completion of his sentence. The trial court 
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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 arrested 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.

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

released me.

PROSECUTOR: Did you 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 disqualifiers 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.

COUNSEL: 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. 
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DISCUSSION

Alden appeals the trial court’s denial of his petition. Specifically, Alden argues 

that his petition should have been granted 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 in deciding whether or not 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 Assembly 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 following 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 felony.

(5) The person has not been convicted of a felony since the person:
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(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 § 35-50-2-7(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 certain 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 discretion 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 convictions. 

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). However, 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 courts 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 trial 
7

courts to keep in mind the policy preference of rewarding 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 Alden’s petition. 

For example, while Alden completed his sentence, it was not without incident. Three 

probation violations were filed during the period of his supervision, with an arrest

warrant being issued for at least one of those violations. More importantly, the testimony 

shows reluctance, even evasiveness, on the part of Alden to acknowledge his subsequent 

arrest and conviction in Illinois for operating while intoxicated. Further, Alden’s 

testimony was the only evidence supporting Alden’s assertion that his conviction in 

Illinois was not a felony. No additional evidence was submitted to corroborate his 

testimony. We are aware that a significant period of time has passed since Alden’s 

convictions. However, given the lack of additional evidence, the evasiveness, and 

equivocal nature of Alden’s testimony concerning his Illinois 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.