RENDERED: MARCH 22, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0531-MR
COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NOS. 95-CR-00963 AND 95-F-05289
CASSANDRA RICHARDSON APPELLEE
AND
NO. 2022-CA-0533-MR
COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 09-CR-00097
JUSTIN WRIGHT APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: The Commonwealth of Kentucky brings Appeal No. 2022-
CA-0531-MR from an April 14, 2022, order of the Fayette Circuit Court granting
Cassandra Richardson’s Application to Vacate and Expunge Felony Conviction.
The Commonwealth of Kentucky also brings Appeal No. 2022-CA-0533-MR from
an April 20, 2022, order granting Justin Wright’s Application to Vacate and
Expunge Felony Conviction. We reverse and remand both Appeal No. 2022-CA-
0531-MR and Appeal No. 2022-CA-0533-MR.1
We shall first address Appeal No. 2022-CA-0531-MR and then
Appeal No. 2022-CA-0533-MR.
APPEAL NO. 2022-CA-0531-MR
On October 24, 1995, Richardson was indicted by the Fayette County
Grand Jury upon seventeen counts of theft by unlawful taking over $300 (Class D
felony) and one count of theft by unlawful taking under $300. The
Commonwealth and Richardson ultimately reached a plea agreement. Thereunder,
Richardson pleaded guilty to two counts of theft by unlawful taking over $300, and
the Commonwealth recommended a total of three-years’ imprisonment. In a
December 19, 1995, Judgment on Guilty Plea, the circuit court accepted
1
By Order entered February 9, 2023, the Court of Appeals ordered Appeal Nos. 2022-CA-0531-
MR and 2022-CA-0533-MR to be heard together per Kentucky Rules of Appellate Procedure
2(G).
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Richardson’s guilty plea to two counts of theft by unlawful taking over $300 and
noted the Commonwealth’s recommendation to dismiss the remaining counts. By
Final Judgment entered January 23, 1996, the circuit court sentenced Richardson to
a total of three-years’ imprisonment upon her guilty plea to two counts of theft by
unlawful taking over $300. The circuit court also dismissed the remaining charges
“[u]pon motion of the Attorney of the Commonwealth.” Final Judgment at 3.
On January 6, 2022, Richardson filed an Application to Vacate and
Expunge Felony Conviction. Therein, Richardson sought expungement of the two
counts of theft by unlawful taking over $300 to which she pleaded guilty and of the
remaining fourteen counts of theft by unlawful taking over $300 and one count of
theft by unlawful taking under $300 that were dismissed.
The Commonwealth filed a response. The Commonwealth did not
object to expungement of Wright’s conviction upon the two counts of theft by
unlawful taking. However, the Commonwealth argued that the dismissed fifteen
counts were ineligible for expungement pursuant to Kentucky Revised Statutes
(KRS) 431.076(1)(b).
By order entered April 14, 2022, the circuit court granted
Richardson’s motion and ordered expungement of the two counts of theft by
unlawful taking and the fifteen dismissed charges. The court determined that
expungement was proper per KRS 431.073. This appeal follows.
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The Commonwealth contends that the circuit court committed
reversible error by expunging the fifteen counts that were dismissed pursuant to the
plea agreement. The Commonwealth argues that the circuit court is not statutorily
authorized to expunge criminal charges that were dismissed in exchange for a
guilty plea to other charges. The Commonwealth believes that expungement of
charges dismissed in exchange for a guilty plea is explicitly prohibited by KRS
431.076 and, thus, is unavailable under the plain terms of KRS 431.073.
The relevant statutory provisions are contained in KRS 431.073 and
KRS 431.076. KRS 431.073 reads, in pertinent part:
(1) Any person who has been:
(a) Convicted of a Class D felony violation of KRS
17.175, 186.990, 194A.505, 194B.505, 217.181,
217.207, 217.208, 218A.140, 218A.1415, 218A.1416,
218A.1417, 218A.1418, 218A.1423, 218A.1439,
218A.282, 218A.284, 218A.286, 218A.320,
218A.322, 218A.324, 218A.500,244.165, 286.11-057,
304.47-025, 324.990, 365.241, 434.155, 434.675,
434.850, 434.872, 511.040, 512.020, 514.030,
514.040, 514.050, 514.060, 514.065, 514.070,
514.080, 514.090, 514.100, 514.110, 514.120,
514.140, 514.150, 514.160, 516.030, 516.060,
516.090, 516.108, 517.120, 518.040, 522.040,
524.100, 525.113, 526.020, 526.030, 528.020, 528.04
0, 528.050, 530.010, or 530.050;
(b) Convicted of a series of Class D felony violations
of one (1) or more statutes enumerated in paragraph
(a) of this subsection arising from a single incident;
(c) Granted a full pardon; or
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(d) Convicted of a Class D felony, or an offense prior
to January 1, 1975 which was punishable by not more
than five (5) years’ incarceration, which was not a
violation of KRS 189A.010, 508.032, or 519.055,
abuse of public office, a sex offense, or an offense
committed against a child, and did not result in
serious bodily injury or death; or of multiple felony
offenses eligible under this paragraph; may file with
the court in which he or she was convicted an
application to have the judgment vacated. The
application shall be filed as a motion in the original
criminal case. The person shall be informed of the
right at the time of adjudication.
....
(5) The court may order the judgment vacated, and if the
judgment is vacated the court shall dismiss with
prejudice any charges which are eligible for
expungement under subsection (1) of this section or KRS
431.076 or 431.078, and, upon full payment of the fee in
subsection (11) of this section, order expunged all
records in the custody of the court and any records in the
custody of any other agency or official, including law
enforcement records[.]
And, KRS 431.076 provides, in relevant part:
(1)(a) On or after July 15, 2020, if a court enters an order
of acquittal of criminal charges against a person, or
enters an order dismissing with prejudice all criminal
charges in a case against a person and not in exchange
for a guilty plea to another charge, the court shall
order the record expunged upon the expiration of
thirty (30) days, unless the person objects to the
expungement. As used in this paragraph, “criminal
charges” shall not include a traffic infraction not
otherwise classified as a misdemeanor. The order
expunging the records shall not require any action by
the person.
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(b) A person who has been charged with a criminal
offense and who has been acquitted of the charges, or
against whom charges have been dismissed and not in
exchange for a guilty plea to another charge, and
whose records have not been expunged pursuant to
paragraph (a) of this subsection, may petition the
court in which the disposition of the charges was
made to expunge all charges.
When a statute is clear and unambiguous and expresses legislative intent, the court
is bound to give effect and apply that statute as written. Commonwealth v. Letner,
678 S.W.3d 101, 103 (Ky. App. 2023).
KRS 431.073(1) is plain and unambiguous. By its clear terms, KRS
431.073(1) only applies to a person convicted of a certain Class D felony or a
person granted a pardon of a Class D felony. Here, Richardson was not convicted
of the dismissed fifteen charges and, thus, may not expunge the dismissed charges
under KRS 431.073(1). Richardson, however, argues that KRS 431.073(5) permits
expungement of the fifteen dismissed charges.
KRS 431.073(5) is also plain and unambiguous. It merely provides
for expungement of charges “eligible for expungement under subsection (1) of this
section or KRS 431.076 or 431.078.” We have previously concluded that
Richardson is not eligible for expungement under subsection (1) of KRS 431.073
as she was not convicted of the dismissed fifteen charges. And, KRS 431.078 is
inapplicable as it encompasses only expungement of misdemeanor charges.
Therefore, our analysis turns to KRS 431.076.
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The terms of KRS 431.076(1)(a) and (b) are clear and unambiguous.
Thereunder, dismissed charges are only eligible for expungement if said charges
were not dismissed “in exchange for a guilty plea to another charge.” KRS
431.076(1)(a) and (b). In this case, the record clearly established that Richardson’s
dismissed charges were dismissed in exchange for Richardson’s guilty plea to two
counts of theft by unlawful taking over $300 and in conformity with the plea
agreement. See Commonwealth v. Davis, ____ S.W.3d ____, 2024 WL 647270
(Ky. 2024). In a December 19, 1995, Judgment on Guilty Plea, the circuit court
accepted Richardson’s guilty plea to two counts of theft by unlawful taking over
$300 and noted the Commonwealth’s recommendation to dismiss the remaining
fifteen counts. See id. Additionally, in the Final Judgment entered January 23,
1996, the circuit court specifically dismissed the fifteen charges upon motion of the
Commonwealth. See id. Based upon the clear and unambiguous language of KRS
431.076, we conclude that Richardson’s dismissed charges are ineligible for
expungement.
In her appellee’s brief, Richardson argues that KRS 431.073 and KRS
431.076 are unconstitutional as violative of equal protection and the prohibition
against arbitrary power as set forth in Kentucky Constitution Sections 2 and 3 and
the United States Constitution Amendment 14. In particular, Richardson
maintains:
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An interpretation of [KRS] 431.073 that forbids
expunging charges dismissed in exchange for a guilty
plea violates equal protection guarantees because it
discriminates – without a substantial or justifiable reason
– between (i) defendants whose charges were dismissed
as part of a guilty plea, and (ii) defendants who were
acquitted of the same charges. For purposes of this
comparison, we must also assume that the two defendants
were convicted of the same series of Class D felonies
(either through a plea or through a jury verdict).
Expungement statutes concern matters of social or
economic policy and must, therefore, be judged
according to the rational basis test. Parker [v. Webster
Co. Coal, LLC, 529 S.W.3d 759, 465 (Ky. 2017)].
[KRS] 431.076 explicitly permits defendants who were
acquitted to file for expungement: “A person who has
been charged with a criminal offense and who has been
acquitted of the charges . . . may petition the court in
which the disposition of the charges was made to
expunge all charges.” [KRS] 431.076(l)(b). Therefore, if
a jury had acquitted [Richardson] of Counts 3-18 the
Commonwealth would have no argument that those
charges were ineligible for expungement. However,
“neither the federal nor state constitutions forbid . . .
classification per se.” Vision Mining[, Inc. v. Gardner,
364 S.W.3d 455, 465 (Ky. 2011)]. So the question
becomes whether the distinction between acquittals and
dismissals in exchange for a guilty plea has a reasonable
basis.
The acquittal of a defendant does not imply that
there was no evidence of his guilt. Rather, “it is the
jury’s civic duty to acquit the defendant if the evidence
does not establish his guilt beyond a reasonable doubt.”
Barnes v. Commonwealth, 91 S.W. 3d 564, 568 (Ky
2002). Because of the mandatory high standard at jury
trials – beyond a reasonable doubt – there is no reason to
assume there is less evidence of guilt on acquitted
charges than for the defendant whose charges were
dismissed in exchange for a guilty plea.
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Because an acquittal on a charge does not equate
to a lack of all evidence of guilt, drawing this distinction
for purposes of expungement does not rationally relate to
any legitimate state interest . . . .
Richardson’s brief at 11-12.
To survive Richardson’s constitutional attack upon equal protection
and arbitrariness grounds, the classification Richardson identifies (a defendant
whose charges were dismissed in exchange for a guilty plea and a defendant whose
charges were dismissed due to acquittal) must be rationally related to a legitimate
governmental interest. See Ballard v. Commonwealth, 320 S.W.3d 69, 72 (Ky.
2010); Commonwealth v. Meyers, 8 S.W.3d 58, 61 (Ky. App. 1999). We believe
the classification rationally furthers a legitimate state interest. It is reasonably
conceivable that the Kentucky legislature viewed defendants whose charges were
dismissed in exchange for plea agreements as presenting more of a threat to public
safety than those defendants whose charges were dismissed as a result of
acquittals. To further public safety, records relating to charges dismissed in
exchange for a plea agreement are preserved and not subject to expungement. In
view of such legitimate state interest, we hold that the classification does not
offend equal protection or the prohibition against arbitrary power.
In summary, we are of the opinion that the circuit court erroneously
ordered expungement of Richardson’s fifteen dismissed charges. We, therefore,
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reverse the April 14, 2022, order of the Fayette Circuit Court granting
Richardson’s Application to Vacate and Expunge Felony Conviction as to the
fifteen dismissed charges.
APPEAL NO. 2022-CA-0533-MR
On January 14, 2009, Wright was indicted by the Fayette County
Grand Jury upon first-degree trafficking in a controlled substance, second-degree
trafficking in a controlled substance, tampering with physical evidence, illegal
possession of legend drug, failure of nonowner operator to maintain insurance, rear
license not illuminated, and obstructed vision and/or windshield. The
Commonwealth and Wright reached a plea agreement. Under its plain terms,
Wright pleaded guilty to the amended charge of first-degree possession of
controlled substance, and the Commonwealth recommended a sentence of one-year
imprisonment. In the October 28, 2009, Judgment on Guilty Plea, the circuit court
accepted Wright’s guilty plea and ordered:
[T]hat [Wright] is guilty of the crime(s) of Ct. 1 Am:
Possession of Controlled Substance 1st Degree, and notes
of record the Commonwealth’s recommendation of a
sentence of Ct. 1 one (1) year, Cts. 2-7 Dismissed, but
reserves ruling on said recommendation until the
Sentencing Hearing.
October 28, 2009, Judgment on Guilty Plea at 2. By final judgment entered
December 16, 2009, the circuit court sentenced Wright to one-year imprisonment
and dismissed counts 2-7 of the indictment.
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On January 14, 2022, Wright filed an Application to Vacate and
Expunge Felony Conviction seeking expungement of his conviction of first-degree
possession of a controlled substance and of the dismissed charges. The
Commonwealth filed a response. Therein, the Commonwealth did not oppose
Wright’s application to expunge his conviction of first-degree possession of a
controlled substance but did oppose expungement of the dismissed charges. The
Commonwealth argued that the charges dismissed in exchange for a guilty plea to
another charge may not be expunged.
By order entered April 20, 2022, the circuit court granted Wright’s
application for expungement and expunged Wright’s conviction of first-degree
possession of a controlled substance and Wright’s dismissed charges. This appeal
follows.
Consistent with our analysis in Appeal No. 2022-CA-0531-MR,
Wright’s dismissed charges are ineligible for expungement under KRS 431.073(1),
as only charges that resulted in conviction or have been pardoned may be
expunged thereunder. KRS 431.073(5) does provide for expungement of charges
“eligible for expungement under . . . KRS 431.076 or KRS 431.078.” To be
eligible for expungement under KRS 431.076,2 the charges must not have been
2
Due to the divergent language utilized in Kentucky Revised Statutes 431.078, Justin Wright’s
dismissed misdemeanor charges may be eligible for expungement. However, Wright has made
no such argument in this appeal.
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dismissed “in exchange for a guilty plea to another charge.” KRS 431.076(1)(a)
and (b). The record clearly demonstrates that Wright’s dismissed charges were, in
fact, dismissed in exchange for Wright’s guilty plea to first-degree possession of a
controlled substance. See Commonwealth v. Davis, ____ S.W.3d ____, 2024 WL
647270 (Ky. 2024).
In the October 28, 2009, Judgment on Guilty Plea, the circuit court
specifically noted the Commonwealth’s recommendation that Counts 2-7 be
dismissed, which was consistent with the terms of the plea agreement. And, in the
December 16, 2009, final judgment, the circuit court again noted the
Commonwealth’s recommendation to dismiss Counts 2-7 and ordered these
charges dismissed. The record clearly demonstrates that Wright’s dismissed
charges were dismissed in exchange for his guilty plea to first-degree possession of
a controlled substance. See id. Therefore, we hold that Wright’s dismissed
charges were ineligible for expungement under KRS 431.076.
As in Appeal No. 2022-CA-0531-MR, Wright has made an identical
argument challenging the constitutionality of KRS 431.073 and KRS 431.076 upon
equal protection and arbitrariness grounds. And for the reasons previously set
forth in that appeal, we, likewise, reject Wright’s claim that KRS 431.073 and KRS
431.076 are unconstitutional.
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In summary, we are of the opinion that the circuit court erroneously
ordered expungement of Wright’s dismissed charges. We, therefore, reverse the
April 20, 2022, order granting Wright’s Application to Vacate and Expunge Felony
Conviction as to the dismissed charges.
For the foregoing, we reverse and remand Appeal No. 2022-CA-0531-
MR and Appeal No. 2022-CA-0533-MR for proceedings consistent with this
Opinion.
ALL CONCUR.
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BRIEFS FOR APPELLANT BRIEF FOR APPELLEE
COMMONWEALTH OF CASSANDRA RICHARDSON:
KENTUCKY:
Jennifer M. Casey
Daniel J. Cameron W. Preston Bell
Attorney General Lexington, Kentucky
Frankfort, Kentucky
BRIEF FOR APPELLEE
Bryan D. Morrow JUSTIN WRIGHT:
Assistant Attorney General
Frankfort, Kentucky W. Preston Bell
Jennifer Casey
BRIEFS FOR APPELLANT Lexington, Kentucky
COMMONWEALTH OF
KENTUCKY:
Daniel J. Cameron
Attorney General
Frankfort, Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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