Opinion
NO. 2011-CA-002090-MR
05-10-2013
SHERRY A. DOYLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Christopher M. Clendenen Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MERCER CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 10-F-00037
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. CLAYTON, JUDGE: This comes before us as an appeal from the Mercer Circuit Court's denial of a motion for expungement. Based upon the following, we will affirm the decision.
BACKGROUND INFORMATION
The appellant, Sherry A. Doyle, was charged with Theft by Unlawful Taking in April of 2010 after her brother filed a criminal complaint asserting that she had stolen a coin valued at over $2,000.00 from him. No True Bill was returned by the Mercer County Grand Jury and the case was subsequently dismissed without prejudice. Doyle then moved the Mercer District Court to expunge her record. The case was referred to the Circuit Court based on jurisdiction and that court granted the motion for segregation of records pursuant to Kentucky Revised Statutes (KRS) 17.142(2) but denied her motion for expungement. Doyle then filed this appeal.
STANDARD OF REVIEW
We review questions of law de novo. Peter Garret Gunsmith, Inc. v. City of Dayton, 98 S.W.3d 517, 520 (Ky. App. 2002). A court's use of, or failure to use, its equitable powers must be reviewed under the abuse of discretion standard. Kentucky Retirement Systems v. Foster, 338 S.W.3d 788, 803 (Ky. App. 2010). "A trial court abuses its discretion when it renders a decision which is arbitrary, unreasonable, unfair, or unsupported by legal principles." Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky. 2007); Edmonds v. Commonwealth, 189 S.W.3d 558, 570 (Ky. 2006). Based upon these standards, we review the merits of this appeal.
DISCUSSION
As set forth above, Doyle's charge was dismissed without prejudice. Pursuant to KRS 431.076(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.Based solely upon the language of KRS 431.076(1), therefore, Doyle's record may not be expunged.
In Commonwealth v. Holloway, 225 S.W.3d 404 (Ky. App. 2007), however, a panel of our court set forth a second manner of getting a record expunged. This avenue is available to those who have had their charges dismissed without prejudice. In Holloway, the court held that a court could expunge a defendant's records outside specific statutory authority under certain extraordinary circumstances. Holloway set forth examples of such extraordinary circumstance such as government harassment, arrests and prosecutions in derogation of a defendant's rights and illegal prosecutions. Holloway at 406.
Doyle does not contend that she falls under the extraordinary exceptions set forth in Holloway. Instead, she contends that her record should be expunged because Holloway also sets forth a "case by case" approach wherein the court may look to the specific facts of a case and determine whether equity requires an expungement be granted. Diamond v. U.S., 649 F.2d 496, 499 (C.A. Ind. 1981).
Doyle contends that the circuit court erred in failing to set forth specific findings under this "case by case" approach. We disagree. As set forth above, a court's failure to use its equitable powers is discretionary. Foster, supra. Even if we agreed with Doyle's argument that a "case by case" approach is part of the Holloway decision, there is nothing to indicate that this would be anything but within the discretion of the judge. Unfortunately, Doyle has not set forth facts in this case which would warrant an expungement. The failure of the circuit court to list the specific facts which justified its holding does not warrant a remand in this case.
Thus, we affirm the decision of the Mercer Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher M. Clendenen
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky