Opinion
NO. 2018-CA-001090-MR
01-03-2020
TIMOTHY G. MOORE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Philip C. Lawson Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BRACKEN CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 15-CR-00009 OPINION
AFFIRMING
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BEFORE: DIXON, JONES, AND LAMBERT, JUDGES. LAMBERT, JUDGE: Timothy Garland Moore appeals from the June 28, 2018, order of the Bracken Circuit Court denying his motion to expunge his felony criminal record after successful completion of a Class D felony diversion program. We have examined the record and applicable case law and affirm the Bracken Circuit Court's order.
Moore is the former superintendent of Mason County Schools. In 2014, he was indicted for abuse of public trust over $10,000.00 but under $100,000.00 (Kentucky Revised Statute (KRS) 522.050(3)(b)), a Class C felony, after a state auditor's report found a significant number of irregularities in his travel reimbursement and other expenditures over several years. A superseding indictment added two counts of theft by deception over $10,000.00 (KRS 514.040(8)(b)), Class C felonies. Upon motion by defense counsel the matter was moved from Mason County to Bracken County. Just prior to trial, Moore accepted a plea bargain wherein, in exchange for dismissal with prejudice of two charges, and upon lowering the degree of the third charge, he entered a plea of guilty to the amended charge of theft by deception over $500.00 (KRS 514.040(8)(a)), a Class D felony.
Moore then completed a pretrial diversion program (which included payment of restitution of $25,000.00) over the next two years, after which he commenced this action for expungement by petition filed on December 22, 2017. The parties briefed the issues, and a hearing was held on June 6, 2018. The Bracken Circuit Court entered its order denying the petition on June 28, 2018, and Moore filed his notice of appeal on July 18 of that year.
We begin our discussion by stating the applicable standard of review:
This appeal involves the interpretation of a statute. Statutory construction is an issue of law and,
accordingly, we review the circuit court's statutory construction de novo. See Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).
The primary purpose of judicial construction is to carry out the intent of the legislature. In construing a statute, the courts must consider the intended purpose of the statute— the reason and spirit of the statute—and the mischief intended to be remedied. The courts should reject a construction that is unreasonable and absurd, in preference for one that is reasonable, rational, sensible and intelligent.
Commonwealth v. Davis, 400 S.W.3d 286, 287-88 (Ky. App. 2013).
Commonwealth v. Kash, 967 S.W.2d 37, 43-44 (Ky. App. 1997) (internal quotation marks and citations omitted). In construing a statute, a court should "use the plain meaning of the words used in the statute." Monumental Life Insurance Company v. Department of Revenue, 294 S.W.3d 10, 19 (Ky. App. 2008).
We dispatch with the easier issue, i.e., whether the circuit court correctly found that the two dismissed charges were ineligible for expungement, by finding no error. KRS 431.076(1) specifically excludes, for expungement eligibility, charges which have been dismissed "in exchange for a guilty plea to another offense[.]" (Emphasis ours.) Thus, no further discussion is necessary regarding circuit court's ruling that the dismissed charges were ineligible for expungement. "We cannot circumvent the plain language of KRS 431.076[.]" Commonwealth v. Jones, 406 S.W.3d 857, 861 (Ky. 2013).
More problematic is Moore's argument that the circuit court erred in denying expungement for the conviction which was ultimately dismissed after Moore completed the felony diversion program. Moore cites Commonwealth v. Shouse, 183 S.W.3d 204 (Ky. App. 2006), in support of his position that the legislature intended "that . . . a successful participant in a pretrial diversion program [be allowed] to expunge the record of his participation in that program[.]" Id. at 206. Accordingly, at first blush it appears that the circuit court erred in denying Moore's expungement eligibility of his diverted/dismissed charge.
However, nowhere does either Shouse or KRS 431.076 mandate expungement of a diverted/dismissed charge. Jones, supra, considered a similar argument (although the allegedly conflicting statute there involved a diverted/dismissed drug conviction under KRS 218A.275, rather than Moore's diversion/dismissal pursuant to KRS 533.258). The Jones court analyzed the dispute in this manner:
This does not mean, however, that Jones's conviction was void ab initio. Rather, the final judgment adjudicating Jones's guilt was valid for almost eighteen years. It was not until Jones's successful completion of her sentence that the judgment became voidable. On the other hand, when charges are "dismissed with prejudice" they are removed from the court's docket in such a way that no conviction has ever taken place.
Obviously, these two legal terms have separate meanings and applications. Neither term can be used interchangeably. More importantly, and what leads us to
our ultimate conclusion, a voided conviction requires a once valid conviction, while the dismissal of one's charges does not.Jones, 406 S.W.3d at 860 (emphases ours). Likewise, Moore's completion of the felony diversion program under KRS 533.258 did not void his conviction ab initio, nor do KRS 533.258 and KRS 431.076 reference one another. Therefore, we find no legislative intent that courts expunge all diverted/dismissed charges.
Furthermore, we find no indication that the legislature intended that avoided conviction be tantamount to a charge dismissed, with prejudice. The legislature failed to use the term "expungement" or "dismissed with prejudice" in its formulation of KRS 218A.275. Compare KRS 510.300; KRS 440.450. Nor do KRS 218A.275 and KRS 431.076 reference one another. Compare KRS 431.076; KRS 17.142(4). Our job is "not to guess what the Legislature may have intended but did not express." Commonwealth v. Gaitherwright, 70 S.W.3d 411, 414 (Ky. 2002) (citing Gateway [Construction Company v. Wallbaum, 356 S.W.2d 247, 249 (Ky. 1962)]). Consequently, we do not believe the language of either statute equates voiding a conviction to dismissing the charge with prejudice.
The language of KRS 436.071(4) is permissive ("the court may grant the petition and order the expunging of all records in the custody of the court") rather than mandatory, indicating that the matter of expungement is within the circuit court's discretion. And we find no abuse of discretion in the circuit court's rationale for denying expungement, namely:
Defendant's motion to expunge Count 2 [the diverted/dismissed charge] is DENIED due, in part, to
being inextricably intertwined with Counts 1 and 3. The allegations made in the case include improprieties regarding multiple occasions for submitting twice for reimbursement for the same work-related trips; alleged abuse of a monthly car allowance while receiving fuel and repair services from school facilities; allegedly submitting improper, inadequate, or altered receipts for reimbursement; and allegedly submitting for improper reimbursement for himself and others, among many other allegations.(Emphasis original.) See Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) ("The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.").
The order of the Bracken Circuit Court is affirmed.
DIXON, JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Philip C. Lawson
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky