Commonwealth v. Parr

Full title: COMMONWEALTH OF KENTUCKY APPELLANT v. WALTINA J. PARR APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Jun 13, 2014

NO. 2012-CA-002211-MR (Ky. Ct. App. Jun. 13, 2014)

Opinion

NO. 2012-CA-002211-MR

06-13-2014

COMMONWEALTH OF KENTUCKY APPELLANT v. WALTINA J. PARR APPELLEE

BRIEF FOR APPELLANT: Jack Conway Attorney General Dorislee Gilbert Special Assistant Attorney General Louisville, Kentucky BRIEF FOR APPELLEE: No brief was filed on behalf of appellee.

Laurance B. VanMeter

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MITCH PERRY, JUDGE

ACTION NO. 02-CR-000659

OPINION AND ORDER

REVERSING AND REMANDING

BEFORE: ACREE, CHIEF JUDGE; JONES AND VANMETER, JUDGES. VANMETER, JUDGE: The Commonwealth of Kentucky appeals from the November 28, 2012, Jefferson Circuit Court order which granted Waltina J. Parr's motion to expunge her 2003 convictions of possession of marijuana and possession of drug paraphernalia. Because we hold that the trial court erred when it failed to provide notice to the county attorney and failed to hold a hearing, we reverse that order and further set aside the Court of Appeals order making this record confidential.

In 2003, Parr entered into an alford plea to the charges of possession of marijuana and possession of drug paraphernalia. As a result, she was sentenced to twelve months on each charge, to run concurrent, and granted conditional discharge for two years. On October 11, 2012, Parr filed a motion to expunge her 2003 charges, to which she attached a copy of her criminal history record. Her motion indicated that she had not been convicted of any other misdemeanor or violation offenses within the five years prior to her 2003 convictions and that she had not been convicted of a felony, misdemeanor, or a violation since the time of her 2003 convictions. The expungement was granted in an order entered on November 28, 2012. Therein, the trial court made multiple findings of fact, including: Parr had not been convicted of any other misdemeanor or violation offense within the five years prior to the conviction she sought to expunge; and Parr has not, since the time of the conviction sought to be expunged, been convicted of a felony, misdemeanor, or violation. This appeal followed.

Under Kentucky Revised Statutes (KRS) 431.078, a party who has been convicted of a misdemeanor or a violation may petition the convicting court for expungement of his or her misdemeanor or violation record.

Upon the filing of the petition, the trial court is required to notify the county attorney and set a hearing date. KRS 431.078(3). In addition, the trial court must make the following findings before granting the expungement:

(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.

KRS 431.078(4) (emphasis added).

On appeal, the Commonwealth argues that the trial court committed reversible error when it neglected to set a hearing date and notify the county attorney. In addition, the Commonwealth argues that the trial court erred when it granted the expungement because Parr's criminal history makes her ineligible, as indicated by KRS 431.078(4)(c) and (d). We first note that Parr failed to file an appellee's brief. Under Kentucky Rules of Civil Procedure (CR), an appellee's failure to file a brief grants this Court the discretion to either:

(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.

CR 76.12(8)(c). In this case, the Commonwealth's brief, in conjunction with the trial court record, reasonably appears to sustain a reversal of the trial court's grant of expungment. There is no indication that a hearing was held or that the Commonwealth received notice of Parr's motion. See KRS 431.078(3). Moreover, the criminal history report attached to Parr's motion appears to indicate that she was found guilty of a misdemeanor within the five years preceding her 2003 convictions and found guilty of both a misdemeanor and a statutory violation in the years following her 2003 convictions. Accordingly, it appears as though Parr's 2003 convictions may not be eligible for expungement. See KRS 431.078(4)(c) and (d).

For the foregoing reasons, we reverse the November 28, 2012, order of the Jefferson Circuit Court and remand with instructions to conduct a hearing and further resolve the question of Parr's expungement eligibility.

ALL CONCUR.

__________

Laurance B. VanMeter

JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Jack Conway
Attorney General
Dorislee Gilbert
Special Assistant Attorney General
Louisville, Kentucky
BRIEF FOR APPELLEE: No brief was filed on behalf of
appellee.