Commonwealth v. Jones , 2013 Ky. LEXIS 377 ( 2013 )

Opinion of the Court by

Justice CUNNINGHAM.

This appeal concerns the voided felony conviction of Appellee, Charlotte M. Jones. In 1992, in the Jefferson Circuit Court, Jones pled guilty to illegal possession of a controlled substance in the first degree, a Class D felony. The trial court sentenced Jones to three years imprisonment, probated for five years. Jones remained free from any further criminal charges and successfully completed probation.

In 2010, Jones moved for the trial court to expunge the record of her felony conviction. The Commonwealth objected and a hearing on the matter was conducted. The trial court acknowledged that it lacked statutory authority under either KRS 431.076 or KRS 431.078 to expunge the felony conviction. Jones then moved for the trial court to void her conviction pursuant to KRS 218A.275, which the Commonwealth did not oppose. An Order Voiding Conviction was entered in the Jefferson Circuit Court on June 14, 2010.

Thereafter, Jones moved for the trial court to expunge the newly voided felony conviction. The Commonwealth opposed the motion on the grounds that neither KRS 431.076 nor KRS 431.078 provide for expungement of voided felony convictions. The Commonwealth also argued that it was necessary to maintain records of voided convictions in order to ensure that voiding of convictions was available only to first-time offenders. However, the trial court believed Jones was exceptionally deserving and utilized CR 60.02(f), which permits a court to relieve a party from its final judgment for any reason of an extraordinary nature that justifies such relief, to expunge her record.

The Court of Appeals disagreed with the trial court’s use of CR 60.02(f), but nevertheless affirmed the trial court’s order of expungement. The Court of Appeals noted that KRS 431.076 does not expressly allow for the expungement of avoided felony conviction. Even so, the Court of Appeals reasoned that Jones’s voided conviction amounted to the underlying charge being dismissed with prejudice, thereby qualifying for expungement pursuant to KRS 431.076. We granted discretionary review.

Whether a felony conviction voided under KRS 218A.275 qualifies for ex-pungement pursuant to KRS 431.076 is an issue of first impression. When faced with issues of statutory interpretation, we “must interpret the statute according to the plain meaning of the act and in accordance with the legislative intent.” Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky.2002) (citing Commonwealth v. Montague, 23 S.W.3d 629 (Ky.2000)). “The most logical and effective manner by which to determine the intent of the legislature is simply to analyze the plain meaning of the statutory language: ‘[r]esort must be had first to the words, which are decisive if they are clear.’ ” Stephenson v. Woodward, 182 S.W.3d 162, 169-170 (Ky.2005) (quoting Gateway Construction Company v. Wallbaum, 356 S.W.2d 247, 249 (Ky.1962)).

KRS 218A.275 (amended 2011) allows for the voiding of first-time possesso-ry drug convictions. The pertinent part of the statute in effect at the time of the trial court’s order states as follows:

(9) In the case of any person who has been convicted for the first time of possession of controlled substances, the court may set aside and void the conviction upon satisfactory completion of treatment, probation, or other sentence, and issue to the person a certificate to that effect. A conviction voided under this subsection shall not be deemed a first offense for purposes of this chapter or deemed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime. Voiding of a conviction under the subsection and dismissal may occur only once with respect to any person.

In addition, the applicable expungement statute, KRS 431.076 (amended 2013), states the following:

(1) 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 including, but not limited to, arrest records, fingerprints, photographs, index references, or other data, whether in documentary or electronic form, relating to the arrest, charge, or other matters arising out of. the arrest or charge.

As the statutory language of KRS 431.076 clearly details, Jones’s possession charge qualifies for expungement if the following two requirements are satisfied: (1) Jones is “[a] person who has been charged with a criminal offense”; and (2) those charges were subsequently “dismissed with prejudice, and not in exchange for a guilty plea to another offense.”

The first requirement of KRS 431.076 is arguably met. Jones was charged with possession eighteen years prior to her motion for expungement. Therefore, Jones is technically “[a] person who has been charged with a criminal offense.” However, this language can also be interpreted to mean that KRS 431.076 only applies to pre-conviction situations. Case law dealing with KRS 431.076 certainly distinguishes between those charged with a crime and those actually convicted of a crime. With the exception of a conviction that was ultimately overturned on appeal, we cannot find any Kentucky decisions that interpret KRS 431.076 to apply to actual convictions. See Hermansen v. Commonwealth, 2008-CA-001038-MR, 2009 WL 723056 (Ky.App. Mar. 20, 2009). Rather, the vast majority of cases interpreting KRS 431.076 have dealt with the expungement of charges that were successfully diverted. See, e.g., Commonwealth v. Shouse, 183 S.W.3d 204 (Ky.App.2006) (holding that charges that are “dismissed-diverted” under KRS 533.258(1) qualify for expungement under KRS 431.076). Nonetheless, we believe Jones meets the literal definition of “[a] person who has been charged with a criminal offense.”

The true inquiry is whether the voiding of Jones’s conviction is the same as her “charges [being] dismissed with prejudice.” There is' one notable similarity between a felony charge that is dismissed with prejudice and a conviction that is voided pursuant to KRS 218A.275. Neither avoided conviction nor a charge dismissed with prejudice may be used to render a subsequent charge a second offense. See KRS 218A.275(8). We also note that the bar against double jeopardy would prohibit further prosecution of Jones’s conviction if it was voided pursuant to KRS 218A.275. See U.S. Const. Amend. X, XIV; Ky. Const. § 18.

Despite this similarity, we must still focus on the plain language of the statute, giving words their ordinary meaning. Plowman, 86 S.W.3d at 49. The term “void” is defined as that which has “no legal force or binding effect.” Black’s Law Dictionary, 1578 (9th ed.2009). It follows, therefore, that Jones’s conviction is legally null upon the voiding of her conviction. 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.

Furthermore, we find no indication that the legislature intended thát 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, 356 S.W.2d at 249). Consequently, we do not believe the language of either statute equates voiding a conviction to dismissing the charge with prejudice.

We also notice that the legislature used the following language in its formulation of KRS 218A.275: “Voiding of a conviction under the subsection and dismissal may occur once with respect to any'person.” Implicit in the purpose of these words is the need for a permanent record of the conviction voided so as to safeguard this restriction. Expungement would run counter to this purpose and was not intended by the legislature. See KRS 218A.275 (9)-(ll) (voided convictions may be sealed, which still allows for the Commonwealth to inspect the records upon its motion); compare KRS 431.076(7) (Inspection of the expunged records is “permitted by the court only upon petition by the person who is the subject of the records and only to those persons named in the petition.”).

We acknowledge that the legislature intended to treat first-time possessory drug convictions differently than other felony convictions. While it is unfortunate that Jones, a woman who has -clearly turned her life around, cannot obtain an expungement of her record, we are bound by the words of the legislature. We cannot circumvent the plain language of KRS 431.076 and grant Jones legislative leniency where none is provided.

Since we have determined that the trial court lacked statutory authority to expunge Jones’s conviction, we also find that its use of the catch-all provision found in CR 60.02(f), over the Commonwealth’s objection, was error. Absent extraordinary circumstances, which are proven or agreed to by the Commonwealth, the courts of this Commonwealth do not have authority to expunge criminal records absent statutory authority. See Commonwealth v. Holloway, 225 S.W.3d 404, 406-07 (Ky.App.2007) (“[A] court can use its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights.” (citing U.S. v. Gillock, 771 F.Supp. 904, 908 (WJD.Tenn.1991))). Such a provision might be utilized if the Commonwealth concedes that “extraordinary circumstances” exist. Here, the Commonwealth objected.

In the case before us, the trial court derived its power to expunge Jones’s record by statute. To allow trial courts to use CR 60.02(f) as a vehicle to expunge the records of criminals, where the statute does not allow expungement and the Commonwealth objects, would indubitably run afoul of the separation of powers doctrine. See Ky. Const. § 27, 28.

For the aforementioned reasons, we hold that the trial court lacked authority under KRS 481.076 to expunge Jones’s conviction which was previously voided pursuant to KRS 218A.275. Therefore, we reverse the opinion of the Court of Appeals and the Jefferson Circuit Court’s order of expungement.

MINTON, C.J., ABRARRISON, SCOTT and VENTERS, JJ., concur. NOBLE, J., dissents by separate opinion. KELLER, J., not sitting.