Opinion
NO. 2016-CA-000070-MR NO. 2016-CA-000071-MR
05-12-2017
RODNEY N. GREGORY II APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND RODNEY N. GREGORY II APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Rodney N. Gregory II Pro se Eddyville, Kentucky BRIEF FOR APPELLEE: M. Brandon Roberts Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 12-CR-00068 APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 13-CR-00068 OPINION
AFFIRMING
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BEFORE: JOHNSON, JONES, AND THOMPSON, JUDGES. JONES, JUDGE: This consolidated appeal concerns the Butler Circuit Court's denial of Appellant's motions to expunge previously dismissed charges against him. Because the charges involved here were either dismissed without prejudice or were dismissed as a result of a plea agreement, the charges are not proper for expungement. Therefore, we affirm.
I. BACKGROUND
On August 14, 2012, Appellant was indicted on seven counts in Case No. 12-CR-00068: Count 1 (assault in the second degree), Count 2 (assault in the first degree), Count 3 (sexual abuse in the first degree), Count 4 (attempted rape in the first degree), Count 5 (wanton endangerment - first degree), Count 6 (persistent felony offender in the first degree), and Count 7 (kidnapping). On October 29, 2013, Appellant entered into a plea agreement with the Commonwealth whereby Appellant pled guilty to one count of second-degree assault, and one count of first-degree unlawful imprisonment. Under the terms of the plea agreement, the Commonwealth agreed to dismiss one count of second-degree assault, one count of first-degree sexual abuse, one count of attempted rape in the first degree, one count of first-degree wanton endangerment, and one count of being a persistent felony offender in the first degree. Ultimately, Appellant was sentenced to 15 years' imprisonment per the terms of his agreement with the Commonwealth.
Also on October 29, 2013, the Butler County Grand Jury returned an indictment in Case No. 13-CR-00068, charging Appellant with one count of possession of a handgun by a convicted felon, and one count of being a persistent felony offender. On November 1, 2013, the trial court ordered those counts "dismissed, without prejudice."
In September 2015, Appellant contacted the Administrative Office of the Courts ("AOC") to obtain a certificate of eligibility for expungement of charges related to Butler Circuit Court Case No. 13-CR-00068 and Case No. 12-CR-00068. On October 13, 2015, certificates were issued stating that charges pertaining to Case Nos. 12-CR-00068 and 13-CR-00068 were eligible for expungement.
In both of his certificates, Appellant made a material mistake of fact by checking the box next to the statement "The above-referenced charge(s) was/were dismissed with prejudice and said dismissal was NOT in exchange for a guilty plea to another offense[.]" Based on Appellant's checking of this box, the AOC and the Kentucky State Police ("KSP") concluded that the foregoing charges were eligible for expungement. As a result, on October 26, 2015, Appellant filed motions for expungement of the above dismissed charges.
The Commonwealth filed responses opposing both of Appellant's motions. First, on November 5, 2015, the Commonwealth filed a response opposing Appellant's motion for expungement in Case No. 13-CR-00068, which provided that Appellant was not eligible for expungement under KRS 431.076 because the felony charges were dismissed without prejudice.
Appellant claims that the trial court initially issued an order granting his motion, but no such Order is included in the record.
Kentucky Revised Statutes. --------
Next, on December 7, 2015, the Commonwealth filed a response opposing Appellant's motion for expungement in Case No. 12-CR-00068. Therein, the Commonwealth pointed out that Appellant was not eligible for expungement under KRS 431.076 because the felony charges were dismissed without prejudice pursuant to Appellant's plea agreement with the Commonwealth. Further, the Commonwealth noted that Appellant has a substantial criminal record and these were serious felony charges.
On December 17, 2015, the trial court overruled Appellant's motions for expungement in both cases. This appeal followed.
II. ANALYSIS
On appeal, Appellant claims that the trial court improperly denied his motions for expungement of the dismissed charges. Having reviewed the record, we disagree.
KRS 431.076(1) provides:
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, or against whom felony charges originally filed in the District Court have not resulted in an indictment by the grand jury, may petition the District or Circuit Court in which the charges were filed to expunge all records.
Under the clear and express language of the statute, the dismissed charges in this case are not eligible for expungement. Appellant's charges in Case No. 12-CR-00068 were dismissed in exchange for guilty pleas to second-degree assault and first-degree unlawful imprisonment. Additionally, Appellant's charges in Case No. 13-CR-00068 were dismissed without prejudice.
Because the charges were dismissed without prejudice and/or in exchange for guilty pleas to other offenses, the dismissed charges were not eligible for expungement. See Rhodes v. Commonwealth, 417 S.W.3d 762, 764 (Ky. App. 2013). As the dismissed charges were not eligible for expungement under the statute, the trial court was without authority to order expungement. Clements v. Commonwealth, 203 S.W.3d 710, 711-12 (Ky. App. 2006).
Appellant points out that the AOC and KSP designated the dismissed charges as eligible for expungement. However, as explained above, that designation was based upon Appellant's material mistakes in filling out his forms. Appellant's motions for expungement claimed that the charges were dismissed with prejudice and were not in exchange for guilty pleas to other offenses. However, the record establishes that the dismissal of the charges was in exchange for guilty pleas to other offenses and that the charges were dismissed without prejudice.
Further, KRS 431.079, which commands the KSP and the AOC to conduct a background check for purposes of expungement, does not require that a trial court accept the conclusion of those agencies as to expungement eligibility without further inquiry. Rather, KRS 431.076(4) commits the ultimate decision on expungement to the discretion of the trial court by using the phrase "may grant."
The dismissed charges in this case were not eligible for expungement. This fact remains regardless of the designation by the KSP or AOC, which was based upon a material mistake by Appellant. As such, the trial court properly denied Appellant's motion for expungement.
III. CONCLUSION
For these reasons we affirm rulings of the Butler Circuit Court denying Appellant's motions for expungement.
JOHNSON, J. CONCURS.
THOMPSON, J. CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Rodney N. Gregory II
Pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: M. Brandon Roberts
Frankfort, Kentucky