Opinion
NO. 2017-CA-000628-MR NO. 2017-CA-000777-MR
09-14-2018
MUHAMMAD T. RASHAD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Muhammad T. Rashad, pro se Bloomfield, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JUDGE
ACTION NOS. 91-CR-000163 AND 98-CR-000564 OPINION
AFFIRMING
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BEFORE: KRAMER, J. LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Muhammad T. Rashad brings pro se Appeal No. 2017-CA-000628-MR from a March 7, 2017, order of the Jefferson Circuit Court denying his application to expunge certain criminal offenses. He also brings pro se Appeal No. 2017-CA-000777-MR from a March 8, 2017, order of the Jefferson Circuit Court denying his application to expunge certain felony convictions. We affirm both appeals.
In Action No. 91-CR-000163, appellant was indicted by a Jefferson County Grand Jury upon robbery in the second degree (Kentucky Revised Statutes (KRS) 515.030), tampering with physical evidence (KRS 524.100), burglary in the third degree (KRS 511.040), receiving stolen property over $300 (KRS 514.110), four counts of fraudulent use of a credit card (KRS 434.650), impersonating a public servant (KRS 519.050), and criminal trespass in the third degree (KRS 511.080). Pursuant to a plea agreement, appellant entered a guilty plea to second-degree robbery, tampering with physical evidence, third-degree burglary, receiving stolen property, four counts of fraudulent use of a credit card, and third-degree criminal trespass. The charge of impersonating a public servant was dismissed under the terms of the plea agreement. By judgment entered May 22, 1991, the Jefferson Circuit Court sentenced appellant to a total of five-years' imprisonment.
In Action No. 98-CR-000564, appellant was indicted by a Jefferson County Grand Jury on March 4, 1998, upon five counts of criminal possession of a forged instrument in the second degree (KRS 516.060), theft by deception over $300 (KRS 514.040), and with being a first-degree persistent felony offender (KRS 532.080). Pursuant to a plea agreement with the Commonwealth, appellant entered a guilty plea to five counts of criminal possession of a forged instrument in the second degree and theft by deception over $300. The charge of first-degree persistent felony offender was dismissed under the terms of the plea agreement. By judgment entered September 28, 1998, the Jefferson Circuit Court sentenced appellant to a total of two-years' imprisonment.
In Action No. 91-CR-000163, appellant filed an Application to Vacate and Expunge Felony Conviction on November 10, 2016. Therein, he sought to vacate and expunge the charges of impersonating a public servant (KRS 519.050) and criminal trespass in the third degree (KRS 511.080). On the application, appellant indicated that both charges were ultimately dismissed by the circuit court. By order entered March 7, 2017, in Action No. 91-CR-000163, the circuit court determined that "the charges are not eligible for expungement" and denied appellant's application. Appellant filed a Notice of Appeal (2017-CA-000628-MR) from the March 7, 2017, order.
In Action No. 98-CR-000564, appellant also filed an Application to Vacate and Expunge Felony Conviction on November 10, 2016. Appellant sought to vacate and expunge the offenses of theft by deception over $300 and five counts of second-degree possession of a forged instrument. By order entered March 8, 2017, in Action No. 98-CR-000564, the circuit court determined that "the charges are not subject to expungement" and denied appellant's application. Appellant filed a Notice of Appeal (2017-CA-000777-MR) from the March 8, 2017, order.
We shall address each appeal seriatim.
APPEAL NO. 2017-CA-000628-MR
Appellant contends that the circuit court erroneously denied his application to vacate and expunge the offenses of impersonating a public servant and criminal trespass in the third degree in Action No. 91-CR-000163. Appellant alleges the charges of impersonating a public servant and criminal trespass in the third degree were dismissed and that he received a pardon from the Kentucky governor. Appellant maintains that he was entitled to expungement of these offenses pursuant to KRS 431.076(1).
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.
The record reveals appellant received a partial pardon from Governor Paul Patton for the offenses of criminal possession of a forged instrument and theft by deception in Action No. 98-CR-000564, but no offenses were pardoned in Action No. 91-CR-000163. Additionally, in the May 22, 1991, judgment, the circuit court fined appellant $250 for criminal trespass in the third degree; thus, this charge was not dismissed as required by KRS 431.076(1). As to the charge of impersonating a public servant, the Commonwealth agreed to dismiss the offense as part of the plea agreement with appellant. KRS 431.076(1) clearly provides that the offense may not be dismissed as part of a plea agreement in order to qualify for expungement thereunder. Therefore, we conclude that the circuit court properly denied appellant's motion to vacate and expunge the charges of third-degree criminal trespass and impersonating a public servant under KRS 431.076(1).
APPEAL NO. 2017-CA-000777-MR
Appellant argues that the circuit court erroneously denied his motion to vacate and expunge the criminal offenses of theft by deception over $300 and five counts of second-degree criminal possession of a forged instrument in Action No. 98-CR-000564. Appellant maintains these offenses were Class D felonies arising from the same incident and subject to expungement pursuant to KRS 431.073. Appellant also asserts these offenses are amenable to expungement under KRS 431.073 as he received a pardon from Governor Paul Patton.
KRS 431.073 provides, in relevant part:
(1) Any person who has been convicted of a Class D felony violation of KRS 17.175, 186.990, 194A.505, 194B.505, 217.181, 217.207, 217.208, 218A.140, 218A.1415, 218A.1416, 218A.1417, 218A.1418, 218A.1423, 218A.1439, 218A.282, 218A.284, 218A.286, 218A.320, 218A.322, 218A.324, 244.165, 286.11-057, 304.47-025, 324.990, 365.241, 434.155, 434.675, 434.850, 434.872, 511.040, 512.020, 514.030, 514.040, 514.050, 514.060, 514.065, 514.070, 514.080, 514.090, 514.100, 514.110, 514.120, 514.140, 514.150, 514.160, 516.030, 516.060, 516.090, 516.108, 517.120, 518.040, 522.040, 524.100, 525.113, 526.020, 526.030, 528.020, 528.040, 528.050, 530.010, or 530.050, or a series of Class D felony violations of one (1) or more statutes enumerated in this section arising from a single incident, or who has been granted a full pardon, may file with the court in which he or she was convicted an application to have the judgment vacated. The application shall be filed as a motion in the original criminal case. The person shall be informed of the right at the time of adjudication.
. . . .
(3) Upon the filing of the Commonwealth's response to an application, or if no response is received, no later than one hundred twenty (120) days after the filing of the application, the court shall set a date for a hearing and the Circuit Court clerk shall notify the office of the Commonwealth's attorney or county attorney that prosecuted the case. The office of the Commonwealth's attorney or county attorney that prosecuted the case shall notify the victim of the crime, if there was an identified victim. The Commonwealth's attorney or county attorney shall be authorized to obtain without payment of any fee information from the Transportation Cabinet regarding the crime victim's address on file regarding any vehicle operator's license issued to that person.
(4) The court may order the judgment vacated, and if the judgment is vacated the court shall dismiss with prejudice any charges which are eligible for expungement under subsection (1) of this section, or KRS 431.076 or 431.078, and order expunged all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, if the court finds that:
(a) The person had not previously had a felony conviction vacated and the record expunged pursuant to this section;
(b) The person had not in the five (5) years prior to the filing of the application to have the judgment vacated been convicted of a felony or a misdemeanor; and
(c) No proceeding concerning a felony or misdemeanor is pending or being instituted against the person.
In the case sub judice, appellant was indicted upon five counts of second-degree criminal possession of a forged instrument and theft by deception over $300. The indictment indicates that appellant forged and cashed checks on five occasions occurring between February 28, 1997, through April 16, 1997. And, as to the theft by deception, the indictment indicates that this offense took place on June 13, 1997. Consistent with this Court's interpretation of the term "single incident" as utilized in KRS 431.073(1), it is clear that appellant's offenses do not constitute a single incident as required by KRS 431.073(1). See Commonwealth v. Ford, 543 S.W.3d 579, 581 (Ky. App. 2018).
As to the governor's pardon of the offenses of theft by deception and five counts of second-degree criminal possession of a forged instrument, an examination of the record reveals that appellant only received a partial pardon for these offenses as opposed to a full pardon. See Anderson v. Commonwealth, 107 S.W.3d 193, 195-96 (Ky. 2003). As appellant received a partial pardon, he is not entitled to expungement of such offenses under KRS 431.073. KRS 431.073(1) specifically requires a "full pardon" in order to be entitled to expungement thereunder. Hence, the circuit court properly denied appellant's application to expunge the felony offenses of theft by deception over $300 and five counts of second-degree possession of a forged instrument under KRS 431.073.
For the foregoing reasons, the orders of the Jefferson Circuit Court are affirmed in Appeal Nos. 2017-CA-000628-MR and 2017-CA-000777-MR.
ALL CONCUR. BRIEF FOR APPELLANT: Muhammad T. Rashad, pro se
Bloomfield, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky John Paul Varo
Assistant Attorney General
Frankfort, Kentucky