Opinion
NO. 2019-CA-001353-MR
03-20-2020
Kyle P. FISHER, Appellant v. COMMONWEALTH of Kentucky, Appellee
BRIEF FOR APPELLANT: Aaron Kemper, Louisville, Kentucky. BRIEF FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky, Perry T. Ryan, Assistant Attorney General, Frankfort, Kentucky.
BRIEF FOR APPELLANT: Aaron Kemper, Louisville, Kentucky.
BRIEF FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky, Perry T. Ryan, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES.
OPINION
KRAMER, JUDGE: On November 19, 2011, Kyle Fisher pled guilty in Fayette Circuit Court to five misdemeanor offenses that arose from a single incident – specifically, three counts of trafficking marijuana, eight ounces or less, first offense ( KRS 218A.1421(2)(a) ); one count of possession of drug paraphernalia ( KRS 218A.500(2) ); and one count of criminal possession of a forged instrument, third degree ( KRS 516.070 ). Over five years later, he petitioned the circuit court to have his convictions expunged pursuant to KRS 431.078. The circuit court denied his petition in a well-reasoned order.
Kentucky Revised Statute.
Now on appeal, Fisher's arguments only take issue with the circuit court's order to the extent that it denied his requests to expunge his three violations of KRS 218A.1421(2)(a). Accordingly, those three violations are the sole focus of our review.
See, e.g. , Osborne v. Payne , 31 S.W.3d 911, 916 (Ky. 2000) (citation omitted) ("Any part of a judgment appealed from that is not briefed is affirmed as being confessed.").
As indicated, a violation of KRS 218A.1421(2)(a) is a misdemeanor, and expungement of misdemeanors is controlled by KRS 431.078. The statute provides for expungement if, following a hearing, the trial court makes the following findings:
(a) The offense was not a sex offense or an offense committed against a child;
(b) The person had not in the five (5) years prior to the filing of the petition for expungement been convicted of a felony or a misdemeanor;
(c) No proceeding concerning a felony or misdemeanor is pending or being instituted against the person; and
(d) The offense is not one subject to enhancement for a second or subsequent offense or the time for such an enhancement has expired.
As it did below, the Commonwealth contends Fisher's convictions were ineligible for expungement pursuant to KRS 431.078(4)(d) because a violation of KRS 218A.1421(2)(a) is subject to enhancement for a second or subsequent offense and because the time for such an enhancement never expires. The Commonwealth's argument presents a question of statutory interpretation, and appellate review is de novo. Whitcomb v. Commonwealth , 424 S.W.3d 417, 419 (Ky. 2014). "As with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly. We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Beckham v. Bd. of Educ. of Jefferson County , 873 S.W.2d 575, 577 (Ky. 1994) (citation omitted).
Keeping that in mind, we agree with the Commonwealth and the circuit court's analysis. By its own plain terms, KRS 218A.1421(2)(a) is indeed subject to enhancement for a second or subsequent offense. See KRS 218A.1421(2)(b). Moreover, KRS 218A.010(48) does not limit the time for which a prior offense can be used to enhance the punishment for a later offense. Applying the plain language of KRS 431.078(4)(d), as we are mandated to do, a conviction for KRS 218A.1421(2)(a) accordingly cannot be expunged. "[S]tatutes must be given a literal interpretation unless they are ambiguous and if the words are not ambiguous, no statutory construction is required." Commonwealth v. Plowman , 86 S.W.3d 47, 49 (Ky. 2002) (citations omitted). The language of KRS 431.078(4)(d) is unambiguous and precludes expungement of any offense that is subject to enhancement, where the time limit for enhancement has not expired.
KRS 218A.010(48) provides: " ‘Second or subsequent offense’ means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his or her conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. For the purposes of this section, a conviction voided under KRS 218A.275 or 218A.276 shall not constitute a conviction under this chapter[.]" (Emphasis added.)
Indeed, Fisher does not contest that KRS 431.078(4)(d) effectively precludes expungement of his convictions at issue herein. Instead, his arguments focus mostly upon KRS 431.073 – the statute allowing for expungement of certain felony offenses. To summarize, he believes if he had been convicted of a comparable felony offense, rather than his misdemeanors, he would have been eligible for an expungement under that statute; and that the resulting inconsistency is, in his view, unfair. Further, he points out that when he pled guilty to his KRS 218A.1421(2)(a) offenses in 2011, the version of KRS 431.078 in effect at that time did not preclude expungement.
To the extent Fisher is asking this Court to render an advisory opinion regarding his hypothecation, we decline and are in any event precluded from doing so. To the extent he asserts that the former version of KRS 431.078 should have been applied to the circuit court's review of his petition, he overlooks that the current version of that statute was retroactive, and thus properly applied. And, to the extent he is asserting a due process right to an expungement, he is likewise incorrect. Like parole, expungement is not a right but a statutory privilege – a privilege the General Assembly has no obligation to provide at all and which it may therefore provide subject to conditions that our Courts are not at liberty to ignore. See Alexander v. Commonwealth , 556 S.W.3d 6, 9 (Ky. App. 2018) ("Expungement is a privilege granted by statute, the express limits of which cannot be extended by judicial fiat. "); see also Land v. Commonwealth , 986 S.W.2d 440, 442 (Ky. 1999) (citations and footnote omitted) ("Kentucky courts have repeatedly held that there is no constitutional right to parole, but rather parole is a matter of legislative grace or executive clemency. Parole is simply a privilege and the denial of such has no constitutional implications.").
"Clearly the courts are not involved in deciding purely hypothetical questions." Kraus v. Kentucky State Senate , 872 S.W.2d 433, 439 (Ky. 1993) (citing Commonwealth v. Crow , 263 Ky. 322, 92 S.W.2d 330 (1936) ).
See KRS 431.078(10).
In narrowly-defined circumstances not at issue in this matter, our Courts have inherent authority to grant mandatory expungements. See Commonwealth v. Holloway , 225 S.W.3d 404, 406-07 (Ky. App. 2007) (noting trial courts may grant mandatory expungements for purposes of correcting constitutional infractions).
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In short, Fisher presents no instance of reversible error. We therefore AFFIRM.
COMBS, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.