BATTLE OVER EXPUNGEMENT RULES HEATS UP IN JEFFERSON COUNTY

Aug. 31, 2012
A serious discussion of the proper application of expungement rules is being discussed in Louisville. The Jefferson County Attorney’s Office has in some cases been opposing expungement orders if the defendant has had a “violation” including traffic tickets. Even when the trial judge has granted expungement the Jefferson County Attorney prosecutors have filed appeals.
The legislator who wrote the current law says this use of “violations” to deny expungement of past criminal records was not the intent of the law, and is a misinterpertion of the law.
Former District Judge Benham Simms III has been a leading advocate for a liberal application of the expungement rules in order to achieve the intent of the legislature and to permit people who have had no violations of criminal law for five years can in some instance be eligible for expungement. This procedure makes it easier for people to apply for jobs, and many feel that this is a valid purpose.

Courier-Journal:
JEFFERSON COUNTY ATTORNEY FIGHTS EXPUNGEMENTS

http://www.courier-journal.com/section/news

To the dismay of some judges and attorneys, the Jefferson County attorney’s office has started making it much more difficult for misdemeanor offenders to get old convictions erased.
Kentucky’s law allowing expungement of some minor offenses was intended to give a second chance to those who show they’ve turned their lives around. Thousands have taken advantage of the expungement law every year, often in an effort to improve their chances of getting a job.

But since April, the county attorney’s office has taken a hard line on expungements, fighting requests by anyone who has had any new violation since the original offense — even if the new violation is as minor as a traffic ticket.

The prosecutor’s office says it’s simply following Kentucky law, which says expungement isn’t allowed for anyone convicted of a “felony, misdemeanor, or a violation” in the five years before the conviction as well as anytime after.

But others, including some judges and attorneys, say the county attorney’s office is defining “violation” too strictly and in a way that’s counter to the definition in a separate law.
Second chance

And regardless, they say, the policy ignores the legislature’s intent to give people a new start.
“It’s impacting thousands of people,” said defense attorney Benham Simms, “because they can’t get their case expunged, and employers look at their record and don’t call them back for an interview” without actually knowing the facts of the case. “It’s absolutely crazy for us to be doing this.”

Some judges have been going along with the prosecutors’ objections to expungement, but others have refused to, and dozens of cases are being appealed.
As a result, getting an expungement in Jefferson County right now may have more to do with luck than the merits of a case.
“It depends on which judge you get in the district level and which you get in circuit court, because there is a split,” said District Judge Donald Armstrong, who believes that speeding tickets and other violations do not prohibit a person from having a misdemeanor conviction expunged. “This is something the Supreme Court needs to clean up. They need to give us some guidance.”

None of the expungement cases in question have reached the state’s high court.
Michigan resident Samuel Tsapiddi — convicted of driving drunk in Jefferson County a decade ago — is among those caught up in the debate.
Tsapiddi’s crime is typically eligible to be expunged after five years, which Tsapiddi tried to do in April, as part of his effort to become a firefighter.
But after District Judge Stephanie Pearce Burke removed the conviction from Tsapiddi’s record, the county attorney’s office appealed the order to circuit court.
Prosecutors argue that Tsapiddi, who does not have a listed telephone number and could not be reached for comment, isn’t eligible for expungement because he was ticketed for speeding in September 2002, the same year as his drunken-driving conviction.

So why — after years of not letting minor violations get in the way of an expungement — did the county attorney’s office change its stance in April and begin uniformly objecting to erasing any cases in which a defendant had even a minor violation?

Jefferson County Attorney Michael O’Connell, through his spokesman, Bill Patteson, declined an interview with The Courier-Journal “because of the number of cases involved and the fact that expunged cases cannot be discussed.”

But the office did answer questions through email, and the newspaper obtained internal correspondence showing that prosecutors were ordered as of April 10 to “appeal any expungement that is not in complete compliance with the expungement statutes.”

Patteson said a recent district court “reorganization prompted us to review our performance as to expungement requests and make it more uniform.”
Defining ‘violation’

Several judges and lawyers said in interviews that not only does the county attorney office’s stance go against the spirit of the law, it ignores a newer state law that defines a “violation” as an offense “other than a traffic infraction.”
“Do we really want to keep someone from employment because they had a hunting violation or because they were 10 miles over the speed limit?” said Jefferson District Judge Anne Haynie. “They need to fix the statute. Someone who has a speeding ticket should be able to get their records expunged.”

Burke said she is continuing to expunge cases even when defendants have a minor violation on their record.
“In each case I have ruled on, the violation was so minor it seems patently unfair to rule otherwise,” said Burke, who has seen 10 of her expungement decisions appealed in the past few months. “And to me, it seems it could not have been the intent of the legislation.”
Former Rep. Mike Bowling, a Middlesboro Democrat who sponsored the expungement laws and was chairman of the House Judiciary Committee when it passed two decades ago, agreed, calling the county attorney’s stance “absolutely ridiculous.”

Bowling said he intended the law to help people who had a misdemeanor conviction but had stayed out of trouble for five years get the charge expunged and “be able to move on with their life and get a job. That’s the whole reason we wrote the law, to help people move on.”
“We did not anticipate or feel that a traffic ticket would be sufficient to keep someone from having an expunged record,” Bowling said. “Who would use a speeding violation (to object to an expungement) against a person who hasn’t had any other problems?”
Told of what Bowling and others said was the intent of the legislation, O’Connell’s office said in an email that “if speeding violations were not supposed to prohibit expungements, the definition provided” in the expungement law “needs to be clarified.”
No unanimity

Indeed, not even judges can agree on the law’s meaning.

While some district court judges are still approving the expungements, citing the separate law defining violations, others agree with the county attorney’s office. And in appeals, circuit court judges are issuing conflicting rulings.
For example, Robert Mellick asked to have drug and indecent exposure convictions from the 1990s expunged, telling a judge that his crimes were tied to substance abuse but he was sober now and unable to get a job because of his criminal history.
While a Jefferson District Court judge erased the cases for Mellick, the county attorney’s office objected and appealed, in part because Mellick had been cited for speeding and fishing without a license in 2002.
S
enior Circuit Judge Geoffrey Morris then overruled the expungement, saying that while he “believes that such a petty violation should not stand in the way of expunging Mellick’s record,” he must follow the law. The General Assembly, he said, chose to prevent expungement when a petitioner commits even minor violations.
Circuit Judge Charles Cunningham agreed in a separate ruling that overruled an expungement, finding however, that “from a policy perspective, it seems clear the District Court took the smarter, fairer path” in granting an expungement to a woman who had traffic tickets.
But Circuit Judge Brian Edwards rejected the county attorney’s appeal in a similar case, of a man who had a district court judge expunge a 2006 wanton endangerment conviction even though prosecutors objected because of multiple speeding tickets in the years since. Edwards found the district judge to be correct in relying on the newer law that says a violation doesn’t include traffic citations.

Armstrong said the county attorney’s office is “conveniently ignoring” the separate state law that defines “violations” as an offense “other than a traffic infraction” for which only a fine can be imposed. Since that law is newer, it takes precedent, Armstrong said.
But John Estill, president of the Kentucky County Attorneys Association and Mason County attorney, said O’Connell’s office is reading the law correctly, as he is following the definition of a violation from the same chapter of the law as the expungement statute, while some judges are differing by reaching into the penal code.
Asked if his office has objected to expungments for the same reason, Estill said he couldn’t remember one personally, but “it’s within our discretion. We have no hard or fast rule. I certainly think we could.”
E
still said he had not heard of any other counties having confusion over the law, but attorneys say the issue has come up elsewhere. Judge Michele B. Stengel, from Louisville, said she has talked with judges across the state and there is a split in how traffic violations are viewed.
“This is a statewide problem,” she said.

Louisville nurse Sharon Case recently tried to get an old reckless-driving conviction expunged out of Hopkins County and said she was “shocked” to learn it had been denied because she later had a citation for defective equipment in Jefferson County.
“I thought, ‘You’ve got to be kidding me,’ ” she said in an interview. “It made me so angry. Because of improper equipment! It just seems so trivial.”

431.078 Expungement of misdemeanor and violation records of convictions and dismissed or amended charges.

(1) Any person who has been convicted of a misdemeanor or a violation, or a series of misdemeanors or violations arising from a single incident, may petition the court in which he was convicted for expungement of his misdemeanor or violation record, including a record of any charges for misdemeanors or violations that were dismissed or amended in the criminal action. The person shall be informed of the right at the time of adjudication.
(2) Except as provided in KRS 218A.275(8) and 218A.276(8), the petition shall be filed no sooner than five (5) years after the completion of the person’s sentence or five (5) years after the successful completion of the person’s probation, whichever occurs later.
(3) Upon the filing of a petition, the court shall set a date for a hearing and shall notify the county attorney; the victim of the crime, if there was an identified victim; and any other person whom the person filing the petition has reason to believe may have relevant information related to the expungement of the record. Inability to locate the victim shall not delay the proceedings in the case or preclude the holding of a hearing or the issuance of an order of expungement.
(4) The court shall order sealed all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, if at the hearing the court finds that:
(a) The offense was not a sex offense or an offense committed against a child;
(b) The person had no previous felony conviction;
(c) The person had not been convicted of any other misdemeanor or violation offense in the five (5) years prior to the conviction sought to be expunged;
(d) The person had not since the time of the conviction sought to be expunged been convicted of a felony, a misdemeanor, or a violation;
(e) No proceeding concerning a felony, misdemeanor, or violation is pending or being instituted against him; and
(f) The offense was an offense against the Commonwealth of Kentucky.
(5) Upon the entry of an order to seal the records, and payment to the circuit clerk of one hundred dollars ($100), the proceedings in the case shall be deemed never to have occurred; all index references shall be deleted; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; and the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. The first fifty dollars ($50) of each fee collected pursuant to this subsection shall be deposited into the general fund, and the remainder shall be deposited into a trust and agency account for deputy clerks.
(6) Copies of the order shall be sent to each agency or official named therein.
(7) Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of the records and only to those persons named in the petition.
(8) This section shall be deemed to be retroactive, and any person who has been convicted of a misdemeanor prior to July 14, 1992, may petition the court in which he was convicted, or if he was convicted prior to the inception of the District Court to the District Court in the county where he now resides, for expungement of the record of one (1) misdemeanor offense or violation or a series of misdemeanor offenses or violations arising from a single incident, provided that the offense was not one specified in subsection (4) and that the offense was not the precursor offense of a felony offense for which he was subsequently convicted. This section shall apply only to offenses against the Commonwealth of Kentucky.
Effective: June 8, 2011
History: Amended 2011 Ky. Acts ch. 2, sec. 97, effective June 8, 2011. — Amended 2008 Ky. Acts ch. 158, sec. 7, effective July 1, 2008. — Amended 1996 Ky. Acts ch. 374, sec. 3, effective July 15, 1996. — Created 1992 Ky. Acts ch. 325, sec. 1, effective July 14, 1992

532.005 Chapters 532, 533 and 534 to apply to crimes outside provisions of the Penal Code.
KRS Chapters 532, 533 and 534 apply to all classes of crimes committed outside the provisions of the Penal Code.
Effective: June 19, 1976
KRS 431.060 Felonies, misdemeanors and violations defined.
Offenses are felonies, misdemeanors, or violations:
(1) Offenses punishable by death or confinement in the penitentiary, whether or not a fine or other penalty may also be assessed, are felonies.
(2) Offenses punishable by confinement other than in the penitentiary, whether or not a fine or other penalty may also be assessed are misdemeanors.
(3) Offenses punishable by a fine only or by any other penalty not cited herein, whether in combination with a fine or not, are violations.
Effective: July 1, 1980
History: Amended 1980 Ky. Acts ch. 309, sec. 3, effective July 1, 1980. – Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 1127.

532.020 Designation of offenses.
(4) Any offense defined outside this code for which a law outside this code provides a sentence to a fine only or to any other punishment, whether in combination with a fine or not, other than death or imprisonment shall be deemed a violation.
Commonwealth v. Jones (Ky. App., 2012) – February 10, 2012 – 2010-CA-002324
In 1992, Jones was indicted by the grand jury with trafficking in a controlled substance, schedule II – cocaine, a class C felony, and complicity thereto. Jones pled guilty to an amended lesser charge of illegal possession of a controlled substance in the first degree, schedule II – cocaine, a class D felony, and the trial court probated her three-year sentence for a period of five years.
Approximately seventeen years later, Jones moved pro se for the trial court to expunge the record of her felony conviction. The Commonwealth opposed the motion on the basis that the court lacked statutory authority to expunge the conviction under either of the expungement statutes, KRS 431.076 or KRS 431.078. Jones, by counsel, then moved for the court to void her felony conviction pursuant to KRS 218A.275, which the Commonwealth did not oppose. The court subsequently entered an order voiding Jones’s felony conviction per KRS 218A.275.
On appeal, the Commonwealth argues that the trial court abused its discretion by granting Jones’s motion to expunge the voided felony conviction because CR 60.02 is not an avenue for expunging voided felony convictions when expungement is not authorized by statute. The Commonwealth emphasizes that KRS 431.076 does not provide for expungement of felony convictions ruled void by operation per KRS 218A.275.
Two Kentucky statutes grant trial courts the power to expunge criminal records: KRS 431.076 and KRS 431.078. Clements v. Commonwealth, 203 S.W.3d 710, 712 (Ky.App. 2006). KRS 431.076 grants courts the authority to expunge the criminal records of persons exonerated of the charges they faced by being found not guilty or whose charges have been dismissed with prejudice. KRS 431.078 grants courts the authority to expunge the criminal records of misdemeanor and violation convictions. Neither statute expressly grants courts the authority to expunge a criminal record after a felony conviction has been voided.
That being said, the issue before this court is the effect of a voided conviction, and whether it amounts to a dismissal of the charges. Jones argues that the statute addressing the voiding of convictions, KRS 218A.275, equates voiding with dismissal and thus, her voided conviction was properly expunged under the provision of KRS 431.076 permitting expungement of charges dismissed with prejudice. We agree.
We agree with the Commonwealth that a court’s ability to expunge criminal convictions is largely governed by statute. See Commonwealth v. Holloway, 225 S.W.3d 404, 406-07 (Ky. 2007) (holding that a court’s statutory authority to expunge records is governed by the clear and unambiguous language of KRS 431.076 and KRS 431.078, and the court’s inherent authority to expunge records is exceedingly narrow in scope, e.g., reserved for remedying the denial of one’s constitutional rights); Clements v. Commonwealth, 203 S.W.3d 710, 711 (Ky.App. 2006) (noting that the power to expunge criminal charges that have been dismissed or misdemeanor convictions is derived from statute). However, in this instance, the trial court’s ability to expunge Jones’s conviction necessarily followed from the statutory language contained in KRS 218A.275(9).
The Jefferson Circuit Court’s order is affirmed.
Commonwealth v. Smith, 354 S.W.3d 595 (Ky. App., 2011)
John Smith was indicted in October 2000 for first-degree trafficking in a controlled substance, tampering with physical evidence, and possession of drug paraphernalia. The charges arose following a traffic stop of the vehicle Smith was driving. He entered a plea of not guilty, and a jury trial was scheduled for February 21, 2001. The evidence against Smith was suppressed following a determination that the traffic stop had violated Smith’s Fourth Amendment protections. On the day of trial, the Commonwealth filed a motion to dismiss the indictment without prejudice. The circuit court did so.
The record reflects nothing further for more than nine (9) years. …..
On March 4, 2010, Smith filed a motion in circuit court to expunge the indictment. He also requested, in the alternative, that the circuit court dismiss the indictment with prejudice.1 The Commonwealth opposed Smith’s motion.
The circuit court correctly concluded that Kentucky Revised Statute (KRS) 431.076, governing expungement of criminal records, does not authorize the expungement of criminal charges when they are dismissed without prejudice. However, the court stated its belief that the interests of justice are not served by an individual being continuously prejudiced by the presence of unproven allegations on his criminal record when the Commonwealth has declined to pursue the charges for in excess of 10 years. Accordingly, Mr. Smith’s motion to amend the February 21, 2001 order to reflect that this indictment shall be Dismissed with Prejudice is GRANTED.
If we affirm this ruling, Smith will be eligible in sixty days to renew his motion for expungement pursuant to KRS 431.076. Unfortunately, we cannot.
Analysis
On appeal, the Commonwealth contends the circuit court lost jurisdiction to alter the February 2001 order of dismissal ten days after its entry. We agree.
In Commonwealth v. Sowell, our Supreme Court stated:
In several cases we have held that a dismissal without prejudice is a final and appealable order. Notably, in Wood v. Downing’s Admr. [110 Ky. 656, 62 S.W. 487, 488 (1901) ], we held that an order dismissing without prejudice “fixed absolutely and finally the rights of the parties in this suit in relation to the subject matter of the litigation, and put an end to the suit. It was a final appealable order.” Notwithstanding the “without prejudice” language, an order of dismissal adjudicates all rights. Nothing remains to be done. 157 S.W.3d at 617.
Ten days after entry of a final and appealable order, the trial court loses jurisdiction over the order and cannot alter it. Kentucky Rules of Civil Procedure (CR) 59.05. Accordingly, if a criminal defendant desires that the dismissal of his charge without prejudice be amended to a dismissal with prejudice, he must file either a timely CR 59.05 motion to alter, amend, or vacate or pursue an appeal in compliance with CR 73.02(1)(a). See Sowell, 157 S.W.3d at 618.
Smith did neither, and the circuit court erred when it entered an order modifying the February 2001 order dismissing the criminal charges against Smith with prejudice.
…… Unfortunately, as the Commonwealth notes, this is a prerogative of the prosecutor protected by Kentucky’s jealously-guarded separation-of-powers doctrine. Gibson, 291 S.W.3d at 690.
Under a different legislative scheme, Smith would have a solution more to his liking. Under the current legislative scheme, Smith is left with the less-comprehensive relief of KRS 17.142. That statute permits application for the segregation of records when all charges have been dismissed, without the requirement of a dismissal with prejudice. KRS 17.142 reads:……
(4) Records subject to the provisions of KRS 431.076 or 431.078 shall be sealed as provided in those statutes.
This statute would allow Smith to have the records held by any public agency segregated and removed from the public record. This statute does not, however, apply to judicial records. Commonwealth v. Shouse, 183 S.W.3d 204 (Ky.App.2006) While this remedy does not rise to the level of an expungement, it does provide for some relief.
Harscher, III v. Commonwealth, No. 2009-CA-000661-MR (Ky. App. 5/21/2010) (Ky. App., 2010)
On appeal, Harscher makes two arguments. First, Harscher contends that the trial court erred in denying his motion to expunge because a pardon automatically entitles the pardoned individual to expungement of his court records. Second, Harscher argues that the trial court incorrectly applied KRS 431.078 instead of KRS 431.076 when it denied his motion to expunge. Because both issues raised by Harscher are purely matters of law, we review the circuit court’s ruling de novo. Commonwealth v. Groves, 209 S.W.3d 492, 495 (Ky. App. 2006).
The power to issue pardons is granted to the Governor in Section 77 of the Kentucky Constitution, which provides that the Governor “shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons . . . .” While the Kentucky Constitution vests the Governor with the power to grant pardons, it does not expressly address the effects of a pardon, including the expungement of criminal records. The Legislature has addressed the expungement of criminal records in KRS 431.076 and KRS 431.078. However, neither KRS 431.076 nor KRS 431.078 addresses the expungement of pardoned convictions. Thus, we must look “to common law to determine the extent of the Governor’s pardoning power contained in Section 77 of the Kentucky Constitution.” Anderson v. Commonwealth, 107 S.W.3d 193, 196 (Ky. 2003) (citing Commonwealth ex rel. Meredith v. Hall, 277 Ky. 612, 126 S.W.2d 1056, 1057 (1939)).
Thus, while a full pardon has the effect of removing all legal punishment for the offense and restoring one’s civil rights, it does not wipe out either guilt or the fact of the conviction. See Nelson, 109 S.W. at 338 (concluding that a pardon “cannot wipe out the act that he did, which was adjudged an offense. It was done, and will remain a fact for all time.”) Because a pardon does not erase the fact that the individual was convicted, we conclude that a pardon does not entitle an individual to expungement of his criminal record.
We note that some of our sister jurisdictions have concluded that a pardoned individual is entitled to have his criminal record expunged. See State v. Cope, 676 N.E.2d 141 (Ohio Ct. App. 1996): State v. Bergman, 558 N.E.2d 1111 (Ind. Ct. App. 1990); Commonwealth v. C.S., 534 A.2d 1053 (Pa. 1987). However, this Court “is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.” Kentucky Supreme Court Rule (SCR) 1.030(8)(a). Thus, as set forth above and based on our jurisprudence, we are constrained to conclude that a pardon does not automatically entitle the pardoned individual to expungement of his court records.
Harscher also argues that the trial court erred in applying KRS 431.078 instead of KRS 431.076 when it denied his motion to expunge. Although Harscher moved the court to expunge his record pursuant to KRS 431.076, the trial court applied KRS 431.078. As correctly noted by the trial court, KRS 431.078 only applies to the expungement of certain misdemeanor convictions and does not permit the expungement of felonies. However, KRS 431.076(1) does permit the following individuals to make a motion for expungement of a criminal record:
A person who has been charged with a criminal offense and who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice, and not in exchange for a guilty plea to another offense . . . .
Harscher argues that the trial court should have applied KRS 431.076 because the pardon of his conviction resulted in his felony charge being dismissed with prejudice. We disagree. Because a pardon does not have the effect of eliminating guilt or the fact of conviction, Harscher cannot maintain that he “has been found not guilty of the offense” or that his “charges have been dismissed with prejudice.” KRS 431.076(1). Thus, Harscher cannot satisfy the requirements of KRS 431.076. Accordingly, the trial court correctly denied Harscher’s motion to expunge, regardless of whether it applied KRS 431.076(1) or KRS 431.078.
For the foregoing reasons, we affirm the order of the Fayette Circuit Court.
Gahman v. Commonwealth, No. 2008-CA-000391-MR (Ky. App. 3/20/2009) (Ky. App., 2009)
The trial court took the matter under advisement and, approximately eight (8) months later, on July 2, 2008, issued its decision. The court denied Gahman’s request using (AOC Form 496) titled “Expungement Order (For Misdemeanor or Violation Conviction) with reference to KRS 431.0781. Notwithstanding the order has a section titled “Findings of Fact,” the court provides no findings and no explanation for its denial of the motion.
Com. v. Holloway, 225 S.W.3d 404 (Ky. App., 2007)
This appeal comes from a Fayette Circuit Court decision granting Darwin Holloway’s petition for the expungement of all records concerning a 1996 case. In May of 1996, Holloway was charged with various felony and misdemeanor theft crimes. The case was submitted to the Grand Jury, but a “No True Bill” was returned and the charges dismissed. In March of 2005, Holloway filed a Petition for Expungement pursuant to KRS 431.078, which states in pertinent part:
(1) Any person who has been convicted of a misdemeanor or a violation, or a series of misdemeanors or violations arising from a single incident, may petition the court in which he was convicted for expungement of his misdemeanor or violation record. The person shall be informed of the right at the time of adjudication.
The Commonwealth’s response to the petition noted that KRS 431.078 applies only to convictions for misdemeanors or violations. The Commonwealth also pointed out that KRS 431.076, which also concerns expungements, applied only to instances in which the accused was either acquitted of the charges or the charges were dismissed with prejudice. Holloway later asked for the expungement pursuant to KRS 431.076. This statute reads in part:
(1) A person who has been charged with a criminal offense and who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice, and not in exchange for a guilty plea to another offense, may make a motion, in the District or Circuit Court in which the charges were filed, to expunge all records including, but not limited to, arrest records, fingerprints, photographs, index references, or other data, whether in documentary or electronic form, relating to the arrest, charge, or other matters arising out of the arrest or charge.
* * *
(4) If the court finds that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court may grant the motion and order the sealing of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records. The court shall order the sealing on a form provided by the Administrative Office of the Courts. Every agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to seal records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required sealing action has been completed. All orders enforcing the expungement procedure shall also be sealed.
Thus, the Commonwealth argued, neither statute was a vehicle for relief for Holloway since a charge that results in a “No True Bill” finding by the Grand Jury is not dismissed with prejudice and can be refiled by the Commonwealth. RCr 5.22(3).
It was Holloway’s contention that the language of KRS 431.076 permitted an expungement
[225 S.W.3d 406]
because his charges were dismissed, albeit without prejudice, by virtue of the Grand Jury’s refusal to indict. Holloway reasoned that since the “probable cause” standard needed for a Grand Jury indictment is a lower standard than the “beyond a reasonable doubt” standard needed to convict, he was entitled to relief.
The trial court found this to be a situation that seemed to slip between the cracks of KRS 431.078 and KRS 431.076. Neither statute directly deals with the situation where a grand jury declines to take action on a felony charge. Sensing an injustice in this situation, the trial court found in its Order on Petition for Expungement that
it is the opinion of the Court that it is beyond reason that a defendant who is not even indicted by a Grand Jury would not be entitled to the relief sought of a expungement of his record whereas a defendant who was indicted by a Grand Jury and whose case was submitted to a Circuit Court trial by jury but found not guilty would be entitled to such relief.
Exercising the “sound discretion and inherent power of the Court to fairly administer justice,” the trial court granted the petition for expungement pursuant to KRS 431.076. The Commonwealth then brought this appeal.
The Commonwealth argues that the trial court ignored the language of the statute and failed to give it its plain meaning, that the court was without inherent power to order expungement absent legislative authorization, and that, by ordering expungement, the court violated the separation of powers. This Court agrees with the Commonwealth’s first argument, but disagrees with its other two. Regardless, this Court finds that there was no justification for expungement under the law and hereby reverses the order of the Fayette Circuit Court.
Flynt v. Commonwealth of Kentucky, 105 S.W.3d 415 (Ky., 2003)
By approving a defendant’s application for pretrial diversion, a circuit court permits the defendant to embark upon a path, which, if successfully negotiated, will result in the defendant’s charges being “dismissed-diverted” — a status indistinguishable from any other dismissal as it is defined by statute as one that “shall not constitute a criminal conviction.”33 Appellee Elliott argues that a circuit court’s authority to unilaterally order pretrial diversion is tantamount to the court’s authority under KRS 431.078 to expunge misdemeanor and violation convictions because, after expungement, “the proceedings in the case shall be deemed never to have occurred.”34 In response to this claim, and with the caveat that the constitutionality of KRS 431.078 is not an issue before the Court, we observe that the authority granted by KRS 431.078 arises only after the executive branch has discharged its prosecutorial function — in fact, it does not arise until any sentence imposed has been fully executed because KRS 431.078 permits expungement “no sooner than five (5) years after the completion of the person’s sentence or five (5) years after the successful completion of the person’s probation, whichever occurs later.”35 As such, unlike Appellee Elliott’s interpretation of KRS 533.250(2), the expungement authority granted by KRS 431.078 does not permit the judiciary to exercise executive authority by interrupting the prosecution prior to final disposition. To interpret KRS 533.250(2) as permitting a trial court toapprove pretrial diversion applications over the Commonwealth’s objection — and thus conferring upon circuit courts the discretionary authority that we have previously held to be within the exclusive province of the executive branch — would construe it in a manner inconsistent with Kentucky’s constitutional separation of powers provisions.36 In accordance with the rule of statutory construction referenced above, we therefore hold that KRS 533.250(2) gives a circuit court the discretion to approve or disapprove an application for pretrial diversion only when the Commonwealth has recommended that the court approve the application. Thus, in cases such as Appellee Elliott’s, where the Commonwealth objects to pretrial diversion, circuit courts cannot unilaterally approve a defendant’s diversion application.

U] Miller v. Commonwealth, No. 2003-CA-000964-MR (Ky. App. 02/20/2004)
Under KRS 431.078(4), an individual is entitled to have a misdemeanor or violation conviction expunged from his record if, inter alia, the trial court finds that “[t]he offense was not a sex offense or an offense committed against a child [emphasis added].”
We conclude that the plain and ordinary meaning of this provision is that our General Assembly specifically chose to exclude sex offenses and offenses committed against children from those offenses which may be expunged from an individual’s record. In using the word “child,” the Legislature has determined that individuals who commit offenses against a particularly vulnerable class of our citizenry, should not be entitled to the benefit of having those offenses expunged from their records.Certainly, Miller’s victim, who was less than ten-years-old when the offense at issue was committed against him, falls within the definition of a “child” as the term is used in KRS 431.078 Accordingly, Miller was not entitled to have expunged from his record the conviction for assault in the fourth degree.
Finally, Miller argues that the word “child” is ambiguous to the point of being unconstitutionally vague, and that specifically excluding sex offenses and offenses against children from those offenses which may be expunged under KRS 431.078, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. However, neither of these arguments were presented to the trial court. Hence, we will not consider them for the first time on appeal. Furthermore, Miller has not served the Attorney General with a copy of the required documents specifying the nature of the alleged constitutional defects as required by KRS 418.075. The failure to comply with KRS 418.075 is fatal to the request for appellate review of the constitutionality of a statute.

Other Courier Journal articles on this issue:http://www.courier-journal.com/apps/pbcs.dll/article?AID=2012308190001

http://www.courier-journal.com/apps/pbcs.dll/article?AID=2012308290005

http://www.courier-journal.com/apps/pbcs.dll/article?AID=2012308290005

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