Opinion
NO. 2015-CA-001810-MR
05-05-2017
BRETT MARZ APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: D. Keith Johnson Newport, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 11-CR-00039 OPINION
AFFIRMING
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BEFORE: COMBS, MAZE AND STUMBO, JUDGES. STUMBO, JUDGE: Brett Marz appeals from an Order of the Campbell Circuit Court denying his Motion for Expungement of His Record. Marz argues that the court erred in failing to expunge the entirety of his record, including the file numbers and an associated misdemeanor charge. We find no error and AFFIRM the Order on appeal.
In November, 2010, Marz was charged in Campbell District Court with one count each of first-degree possession of a controlled substance, operating a motor vehicle while under the influence ("DUI") first offense with aggravator, operating on a suspended/revoked license, and speeding. The matter was assigned district court case number 10-F-00872.
The following February, Marz was charged with the same offenses by prosecutor's information in Campbell Circuit Court case number 11-CR-00039. Marz accepted the Commonwealth's plea offer, under which he would enter the Felony Diversion Program in lieu of the felony possession charge. The agreement provided that the aggravator component of the DUI would be dismissed, with Marz receiving a 90-day suspended license and agreeing to a fine and fee, and to attend an alcohol education class. The court accepted the plea and the remaining charges were dismissed. On March 7, 2011, the court sentenced Marz on the DUI conviction in accordance with the plea and he was placed into the diversion program on the possession conviction for a period of three years. The court ordered that the felony controlled substance offense would be dismissed and the matter expunged pursuant to KRS 431.076 upon completion of the program.
Kentucky Revised Statute. --------
Marz completed the diversion program. On June 10, 2014, the circuit court sustained his motion to dismiss the felony charge. Thereafter, on October 7, 2014, Marz moved for expungement of all charges related to circuit court number 11-CR-00039. In support of the motion, Marz noted that he completed the diversion program, the matter had been dismissed, and he had waited the statutory period of 60 days following the dismissal.
In response, the Commonwealth agreed that the possession conviction should be expunged; however, it opposed the DUI conviction being expunged on the basis that it was premature. As a basis for the opposition, the Commonwealth cited KRS 431.078(2), which provides that a petition for expungement of a misdemeanor conviction shall be filed no sooner than five years after the completion of the sentence or probation, whichever occurs later. Upon considering the matter, the circuit court sustained the motion "as to the felony."
On August 14, 2015, Marz filed a Second Motion to Expunge Record. The motion stated that Marz had learned through a private investigator that Marz's criminal record contained the district court case number 10-F-00872 possession charge. Marz also claimed that when a private investigator performs background checks for perspective employers, the district court "F" case number followed by a circuit court "CR" case number reveals that the prospective employee had a felony expunged. Based on this, Marz sought to have the expungement of "the entire case numbers of 10-F-00872 and 11-CR-00039 . . . from his criminal record even though there are misdemeanors under each of those case numbers that have not been dismissed." Marz argued that keeping the case number on the record allowed prospective employers to surmise that Marz had been charged with a felony.
On September 25, 2015, the circuit court rendered an Order denying Marz's second Motion for Expungement. The court characterized the Motion as one to dismiss the misdemeanor DUI charge, and determined that the Motion was premature. Marz's Motion to Reconsider was overruled and this appeal followed.
Marz now argues that the Campbell Circuit Court erred in failing to expunge all records associated with his charges, including the case numbers and misdemeanor conviction. He directs our attention or KRS 431.076(1), which provides that,
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.Marz focuses on the "expunge all records" language, and notes that all of his records related to 10-F-00872 and 11-CR-00039 have not been expunged in conformity with KRS 431.076. Marz argues that if the Commonwealth wants to keep misdemeanors like DUI on a defendant's criminal record when it is attached to a felony charge, then the Commonwealth should charge the defendant under a separate case number. He notes that by leaving the "F" and the "CR" case number on his record, any potential employer is going to realize that he was charged with a felony, which is exactly what KRS 431.076 was designed to avoid. In sum, Marz contends that the circuit court committed reversible error in failing to expunge all records on this matter, including the misdemeanor offense, and he seeks an Opinion reversing the Order on appeal and remanding the matter for entry of an Order expunging the misdemeanor offense.
The question for our consideration is whether the Campbell Circuit Court committed reversible error in denying Marz's motion to expunge the case numbers and misdemeanor conviction from his record, so that prospective employers may not "read between the lines" and surmise that Marz was charged with a felony. Because this is a question of law, we examine it under the de novo standard. Commonwealth v. Love, 334 S.W.3d 92 (Ky. 2011). As noted above, KRS 431.078(2) provides that a petition for expungement of a misdemeanor "shall be filed no sooner than five (5) years after the completion of the person's sentence or five (5) years after the successful completion of the persons' probation, whichever occurs later." On March 7, 2011, the Campbell Circuit Court imposed a 90-day suspended license for the DUI charge, along with a fine and fee, and mandatory attendance of an alcohol education class. The Order on appeal was rendered on November 15, 2015, which was within the five-year period prescribed by KRS 431.078(2); therefore, the Order was supported by the record and the law at the time it was rendered, and it is upon that basis that we find no error.
If the imposition of the suspended license and alcohol education is properly characterized as a "sentence" for purposes of KRS 431.078(2) - and we conclude that it is - then as of this writing more than five years may have elapsed since the "completion" of that sentence. This determination would center on the timing of Marz's compliance with the sentence, including the payment of fees and completion of the alcohol education class. While the circuit court did not err in overruling Marz's motion as of November 15, 2015, Marz may file the motion again when he determines that five years have elapsed since the completion of his misdemeanor sentence.
For the foregoing reasons, we find no error in the Campbell Circuit Court's November 15, 2015 Order.
ALL CONCUR. BRIEFS FOR APPELLANT: D. Keith Johnson
Newport, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky John Paul Varo
Assistant Attorney General
Frankfort, Kentucky