Opinion
2023-CA-1296-MR
10-18-2024
CIVERS REESE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: BRADLEY CLARK LEXINGTON, KENTUCKY BRIEF FOR APPELLEE: RUSSELL COLEMAN ATTORNEY GENERAL OF KENTUCKY KRISTIN L. CONDER ASSISTANT ATTORNEY GENERAL FRANKFORT, KENTUCKY
NOT TO BE PUBLISHED
APPEAL FROM BOYD CIRCUIT COURT HONORABLE JOHN F. VINCENT, JUDGE ACTION NO. 13-CR-00463
BRIEF FOR APPELLANT: BRADLEY CLARK LEXINGTON, KENTUCKY
BRIEF FOR APPELLEE: RUSSELL COLEMAN ATTORNEY GENERAL OF KENTUCKY KRISTIN L. CONDER ASSISTANT ATTORNEY GENERAL FRANKFORT, KENTUCKY
BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.
OPINION
GOODWINE, JUDGE
Civers Reese ("Reese") appeals the order of the Boyd Circuit Court denying his application to vacate and expunge his Class D felony conviction. We vacate and remand.
On November 6, 2013, Reese was charged via criminal information with one count of trafficking in a controlled substance (less than ten dosage units of an unspecified substance) in the first degree. This is a Class D felony under KRS 218A.1412(3)(b). This was his first offense. He subsequently pleaded guilty to the offense and was sentenced to one year of imprisonment.
Kentucky Revised Statutes.
In 2023, with counsel, Reese again applied to vacate and expunge his conviction under KRS 431.073(1)(d). His application included explanations of (1) rehabilitative activities and programs in which he has participated, (2) how he has changed since his conviction, (3) how he is now living as a law-abiding citizen, (4) how expungement would make a difference in his life, and (5) his acceptance of responsibility for the actions which led to his conviction. Attached thereto were Reese's expungement eligibility certification notice from the Kentucky State Police and proof of his criminal history which showed only the 2013 conviction. The Commonwealth did not object to his application.
Reese previously filed an application, pro se, to vacate and expunge this conviction under KRS 431.073(1)(a). The trial court denied his petition because the offense is not eligible for expungement under this subsection of the statute.
Before the trial court, the Commonwealth stated, "[o]n paper, I don't have any objection[.]" Video Record ("V.R.") 9/28/2023 at 9:44:09-11.
The trial court entered form order AOC-496.4 denying Reese's application. Therein, the court did not make a finding as to whether the Commonwealth objected to the application. The court found Reese's offense is "one of the eligible offenses listed in KRS 431.073(1)(a)." Record ("R.") at 69. In Section II of the order, the court found Reese did not prove, by clear and convincing evidence, the factors listed in KRS 431.073(4)(a)(1)-(3). The court then found vacation and expungement were not warranted because of the "seriousness of [the] offense and potential danger to [the] community." R. at 71.
Section II includes instructions which state: "This section must be completed if, and only if, the Commonwealth has objected to an Expungement pursuant to KRS 431.073(1)(d)." R. at 70.
This appeal followed.
There is no right to expungement of any conviction, but the General Assembly has created a statutory privilege thereto. Fisher v. Commonwealth, 599 S.W.3d 890, 893 (Ky. App. 2020). The General Assembly granted trial courts discretionary authority to vacate and expunge certain felony convictions under KRS 431.073. However, trial courts must exercise their discretion subject to the conditions laid out in the statute. Fisher, 599 S.W.3d. at 893. A trial court abuses its discretion when its decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted). A court's "factual finding [is] clearly erroneous if it is unsupported by substantial evidence." Thompson v. Commonwealth, 644 S.W.3d 528, 531 (Ky. App. 2022) (citation omitted). Furthermore, we review a trial court's application of a statute de novo. Vaughn v. Commonwealth, 371 S.W.3d 784, 785 (Ky. App. 2012) (citation omitted).
See KRS 431.073(5) ("[t]he court may order the judgment vacated"); see also KRS 431.073(6) ("the court may, without a hearing, vacate the judgment"). This language is permissive. KRS 446.010(26).
On appeal, Reese argues: (1) the trial court erred by applying KRS 431.073(4)(a) to his application and (2) the court abused its discretion by denying his application.
The Commonwealth correctly asserts that Reese's brief does not contain citations to the record in violation of Kentucky Rules of Appellate Procedure ("RAP") 32(A)(3) and (4). The dissent elaborates on these deficiencies and suggests we should strike the brief. However, the Supreme Court of Kentucky favors ruling on the merits rather than dismissal. Thus, we will ignore this deficiency and proceed with our review. We caution counsel that such leniency cannot be guaranteed in future appeals and this Court may strike a brief for failure to substantially comply with the rules. RAP 31(H)(1).
The trial court erroneously applied KRS 431.073(4)(a) to Reese's application. The statute reads, in relevant part:
In an application pursuant to subsection (1)(d) of this section, upon the filing of the Commonwealth's response objecting to the vacating of a judgment and expungement of a record, the court shall schedule a hearing within one hundred twenty (120) days of the Commonwealth's response. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified.KRS 431.073(4)(a) (emphasis added). "Where the statute is clear and unambiguous on its face, we are not free to construe it otherwise." Kentucky Board of Medical Licensure v. Strauss, 558 S.W.3d 443, 452 (Ky. 2018) (internal quotation marks and citation omitted). A plain reading of subsection (4)(a) shows it applies only when the Commonwealth objects to an application filed under subsection (1)(d). It is uncontested that Reese's conviction is eligible for expungement under subsection (1)(d) and the Commonwealth did not object to his application. Therefore, subsection (4)(a) is inapplicable herein and the trial court's order must be vacated.
The trial court's finding that Reese's offense is eligible under subsection (1)(a) is clearly erroneous.
On remand, the trial court must, instead, make findings under subsection (5), which allows the court to vacate and expunge a judgment if it finds:
(a) The person ha[s] 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;
(b) No proceeding concerning a felony or misdemeanor is pending or being instituted against the person; and
(c) For an application pursuant to subsection (1)(d) of this section, the person has been rehabilitated and poses no significant threat of recidivism.KRS 431.073(5) (emphasis added). Because fact-finding is traditionally the responsibility of trial courts, it is not our place to decide whether evidence in the record supports granting Reese's application under this subsection. See Commonwealth v. Deloney, 20 S.W.3d 471, 473 (Ky. 2000); see also Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted) ("weighing evidence" is a task "within the exclusive province of the trial court").
Regardless of whether the trial court grants or denies Reese's application on remand, its findings must be based on substantial evidence in the record. See Thompson, 644 S.W.3d at 531 (citation omitted). The court's findings that denial of Reese's application was justified because of potential danger to the community and the seriousness of the offense are unsupported by the record. First, the record is devoid of any evidence showing Reese is presently a danger to the community.
This leaves the seriousness of the offense as the trial court's sole basis for denial of Reese's application. We must presume the General Assembly intended for all parts of KRS 431.073 to have meaning and to be given effect. See Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) (citations omitted). When the General Assembly amended KRS 431.073 in 2019, it added subsection (1)(d), which allows application for expungement by any person who has been "[c]onvicted of a Class D felony . . . which was not a violation of KRS 189A.010, 508.032, or 519.055, abuse of public office, a sex offense, or an offense committed against a child, and did not result in serious bodily injury or death[.]" Despite their seriousness, the General Assembly clearly intended for some trafficking convictions to be eligible for expungement under this subsection. On this basis, the trial court's finding of seriousness of the offense alone is insufficient to support denial of Reese's application.
The dissent relies on Walker v. Commonwealth, 696 S.W.3d 51 (Ky. App. 2024), finding it analogous and instructive. Walker is clearly distinguishable. First, Walker pleaded guilty to two counts of murder and was sentenced to life without the possibility of parole for twenty-five years before being granted a gubernatorial pardon by former Governor Matt Bevin. Id. at 52 (citation omitted). Murder is not analogous to trafficking in a controlled substance on the seriousness spectrum. Second, the legislature has not included murder in the list of offenses eligible for expungement. Instead, Walker applied for expungement under subsection (1)(c) because he received a pardon. Thus, the trial court in Walker was well within its discretion to find murder to be a serious offense giving the public "a greater interest in having access to his criminal record." Id. at 57. Here, the General Assembly included trafficking convictions to be eligible for expungement under subsection (1)(d), being aware of its seriousness. Thus, something more must be found in order to deny expungement.
Based on the foregoing, we vacate the order of the Boyd Circuit Court and remand this matter for a new order on Reese's application, including findings under KRS 431.073(5). These findings must be supported by the evidence in the record.
CETRULO, JUDGE, CONCURS.
ECKERLE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
ECKERLE, JUDGE, DISSENTING:
Respectfully, I must dissent from the Panel's majority Opinion to vacate and remand the Trial Court's order denying the application to vacate and expunge this conviction.
To begin, Appellant, Civers Reese ("Reese"), failed to comply, even minimally, with the procedural mandates of Kentucky Rules of Appellate Procedure ("RAP") 32(A)(3) and (4). With respect to RAP 32(A)(3), Reese's statement of the case fails to provide "ample references to the specific location in the record supporting each of the statements contained in the summary." Similarly, as required by RAP 32(A)(4), the argument section of Reese's brief lacks "references to the specific location in the record and citations of authority pertinent to each issue of law and . . . a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Reese does not include any citations to the designated record on appeal despite significant factual and procedural assertions, including the preservation of his two main arguments for relief. Reese merely refers to a four-page appendix "which is not a substitute for the rule's requirement to cite only to the certified record on appeal." J.P.T. v. Cabinet for Health &Fam. Servs., 689 S.W.3d 149, 151 (Ky. App. 2024) (citing Serv. Fin. Co. v. Ware, 473 S.W.3d 98, 102 n.4 (Ky. App. 2015)).
Having determined that Reese's brief falls well below even a substantial-compliance threshold, this Court should utilize its discretion and strike Reese's brief and dismiss this appeal pursuant to RAP 31(H)(1). See Commonwealth v. Hensley, 655 S.W.3d 122, 127 (Ky. 2022). Such action is in line with this Court's stated intention to quell the continued filing of rule-offending appellate briefs. J.P.T., 689 S.W.3d at 153-53 ("[O]ur reluctance to sanction should come to an end, and the bar should be made aware."). To overlook Reese's RAP violations sets "a dangerous precedent [that] permit[s] appellate advocates to ignore procedural rules." Commonwealth v. Roth, 567 S.W.3d 591, 593 (Ky. 2019) (quoting Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010)).
In Roth, the Supreme Court applied the Kentucky Civil Rules of Civil Procedure ("CR") 76.12, which governed the procedural requirements of appellate briefs and has since been replaced with RAP.
While this Panel's majority excuses all of Reese's RAP violations based on the limited size of the record, I find the exact opposite. It was a short brief on a narrow issue of particular importance to Reese, and he had every reason to comply with Court rules to obtain what he wanted - an extinguishment of his criminal conviction. Instead, he abjectly failed to comply, and we should not take it upon ourselves to do the work for him and serve as his advocate regardless of the size of the record. He is not a pro se litigant, but is represented by the KY Cannabis Law Group, which is presumed to know the rules.
To further illustrate his complete indifference to the mandates of RAP 32(A)(3) and (4), Reese failed to file a reply brief even though the Commonwealth had stressed in its counterstatement and argument that Reese ignored the requirements. See Roth, 567 S.W.3d at 596 (explaining that deficiencies related to a party's failure to provide citations to the record may be corrected in a reply brief) (citing Goncalves v. Commonwealth, 404 S.W.3d 180, 207 (Ky. 2013)). Instead, Reese defers this responsibility to the Court with what can only be described as impunity. We should not tolerate this behavior and strike the brief.
As to the substantive issues of Reese's appeal, I would affirm the Trial Court. Keeping in mind that interpretation of a statute presents an issue of law reviewed de novo, I find the Trial Court evaluated Reese's application utilizing the proper eligibility criteria and legal factors enumerated in KRS 431.073.
For contextual purposes, it is important to note that the Order Denying Expungement was completed on AOC Form 496.4. When a Trial Court completes AOC Form 496.4, it must make its findings of facts and conclusions of law through the selection or non-selection of boxes mirroring the verbiage used in the felony expungement statute. While there are optional areas to include written findings of fact and conclusions of law, the bulk of AOC Form 496.4 is limited to the requisite findings delineated in KRS 431.073. Regarding Section I Findings of Fact, AOC Form 496.4 requires the Trial Court to list the subject felony offense(s) and provides four selection boxes to make the required finding that those offense(s) are eligible for vacation and expungement. While the Trial Court made the selections containing the eligibility criteria for offenses listed in subsection (1)(a), it is apparent from the order that its analysis was conducted pursuant to the correct eligibility criteria under subsection (1)(d). There is no dispute that Reese's felony conviction qualified as an eligible felony offense.
The Trial Court did not check the box finding that Reese was rehabilitated and posed no significant threat of recidivism. Accordingly, the Trial Court properly denied Reese's application. KRS 431.073(5)(c). Nonetheless, the Panel majority instructs the Trial Court, upon remand, to issue a new order on Reese's application to include this very finding. It follows, then, that the Panel majority assumes the Trial Court's failure to select the box finding Reese as rehabilitated and having no significant threat of recidivism is the functional equivalent of having failed to make a finding to the contrary. I cannot agree with this line of reasoning. Neither KRS 431.073 or AOC Form 496.4 require a Trial Court to state the reasons for not checking the rehabilitate/threat of recidivism box, nor is there precedential authority requiring a Trial Court to write in its reasoning on the Form Order. Notably, there is no box for a trial court to select if, as is here, it finds the applicant has not been rehabilitated or poses a significant threat of recidivism. Therefore, the proper assumption is that the Trial Court evaluated KRS 431.073(5)(3) concerning Reese's rehabilitation and threat of recidivism. After all, "[t]rial judges are presumed to know the law and to apply it in making their decisions." See Bowling v. Commonwealth, 168 S.W.3d 2, 13 (Ky 2004) (quoting Walton v. Arizon, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002)).
Further, the Trial Court completed Section III of AOC Form 496.4 and selected the box stating that Reese's application is denied. Under the selected box, the Trial Court hand wrote that the reasons for denial were based on the seriousness of the offense and the danger to the community, both of which may be considered in determining, inter alia, Reese's rehabilitation and threat of recidivism. Having failed to find that Reese was rehabilitated or posed no significant threat of recidivism, the Trial Court's analysis was complete, and denial of Reese's application was appropriate.
The Panel majority places great weight on the Trial Court's application of KRS 431.073(4), which is found in Section II of AOC Form 496.4 and is to "be completed if, and only if, the commonwealth has objected . . . ." While I agree with the Panel majority that the Reese was not required to satisfy the criteria of KRS 431.073(4) by clear and convincing evidence due to the absence of a written objection from the Commonwealth, I find no error in the Trial Court utilizing KRS 431.073(4) factors to make additional findings supporting its determination to deny Reese's application.
Our recent holding in Walker v. Commonwealth, 696 S.W.3d 51 (Ky. App 2024), is analogous and instructive. In Walker, the applicant sought expungement of his murder conviction pursuant to KRS 431.073(1)(c) following his full and unconditional pardon. Id. at 52-53. Similar to the case sub judice, the Trial Court denied the application and utilized the statutory criteria for applications filed under KRS 431.073(1)(d), including the stricter requirements listed in subsection (4)(a). Id. at 53. On appeal, this Court upheld the Trial Court's denial, stating that "nowhere does [KRS 431.073(1)(d)] prohibit a court from considering those or any other factors when exercising its discretion . . . . [T]hese are exactly the type of factors a court would want to consider in exercising its discretion as they broadly address the protection of the general public, the interests of justice, and the applicant's behavior post-conviction." Id. at 56.
With Walker in mind, I find it important to underscore that the Trial Court's non-form, written findings state that Reese's application is denied due to the "seriousness of [his] offense" and "potential danger to the community." I can find no legal basis to preclude a Trial Court from considering these factors, and Walker is clear that the Trial Court may utilize "any other factors" in considering whether to grant or deny an application to vacate and expunge a felony conviction. 696 S.W.3d at 56. This Court upheld the Walker Trial Court's decision to "give greater weight to the seriousness of [the] crime . . . [and] determined that the public had a greater interest in having access to his criminal record." Id. at 57.
In viewing the completed AOC Form 496.4 in its entirety, I find that the Trial Court properly conducted its analysis pursuant to KRS 431.073(1)(d) eligibility and KRS 431.073(5) criteria. The ultimate decision was within the discretion of the Trial Court, which utilized other factors to find vacation and expungement was unwarranted. Having applied the correct legal analysis to the facts before it, the Trial Court did not abuse its discretion in denying Reese's application.
Finally, I disagree with the Panel majority's statement that the Trial Court's "findings that denial of Reese's application was justified because of potential danger to the community and the seriousness of the offense are unsupported by the record." Opinion, p. 6. The expungement of criminal records can create a danger to the community, which then cannot learn of such crimes. KRS 431.073(4)(c) even acknowledges "the public interest in the criminal history record information being publicly available." Reese's trafficking conviction also provides factual support that there is a potential danger to the community. Trafficking in a controlled substance is a serious felony offense and can - and has - resulted in the dealing of death and injury to scores of others. If an applicant fails to provide evidence sufficient to rebut the seriousness of the offense and danger to the community, it is within the bounds of the law for the Trial Court to utilize its discretion to deny vacation and expungement. See Walker, 696 S.W.3d at 56-57. Expungement is a privilege, not a right. Fisher v. Commonwealth, 599 S.W.3d 890, 893 (Ky. App. 2020). And it is certainly not automatic or required. Otherwise, there would be no reason to allow a Judge to have any discretion, and then there would be no reason for a Judge to be required to fill out the form in the first place. For all of the reasons stated in this dissent, I would not grant any relief in this particular case.