Wallace G. Cook v. Commonwealth of Kentucky ( 2021 )

RENDERED: AUGUST 13, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1271-MR
WALLACE G. COOK APPELLANT
APPEAL FROM BRACKEN CIRCUIT COURT
v. HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 05-CR-00026
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
COMBS, JUDGE: Appellant, Wallace G. Cook (Cook), appeals from an order of
the Bracken Circuit Court denying his application for the expungement of a felony.
After our review, we affirm.
On December 17, 2005, Cook was indicted by a Bracken County
Grand Jury on three counts of reckless homicide. Cook entered a plea of guilty.
On June 19, 2006, the trial court entered its judgment, sentencing Cook to an
aggregate of five years, probated for a period of five years.
On November 21, 2019, then-Governor Matthew G. Bevin
unconditionally pardoned Cook. On February 26, 2020, Cook filed an application
to vacate and to expunge his felony record. On May 28, 2020, the Commonwealth
filed a response stating that it had no objection to the expungement.
By an order entered on September 3, 2020, the Bracken Circuit Court
denied Cook’s application, explaining as follows:
Although these felonies are eligible for expungement
pursuant to KRS[1] 431.073(1)(c)[2], this Court believes
the seriousness of the offenses would not justify
expungement from the Defendant’s record. Expungement
is not warranted by the interests of justice in this case.
Although pardoned, the Defendant was convicted of
three very serious offenses. Any harm to the applicant by
having this conviction on his record does not outweigh
the public interest in the criminal history record being
publicly available.
Cook, pro se, appeals. Although his brief fails to conform to the
requirements of CR3 76.12(4)(c), we have elected to proceed with our review.
Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
1
Kentucky Revised Statutes.
2
KRS 431.073(1)(c) provides in relevant part that: “[a]ny person who has been . . . [g]ranted a
full pardon . . . may file with the court in which he or she was convicted an application to have
the judgment vacated. . . .”
3
Kentucky Rules of Civil Procedure.
-2-
KRS 431.073(6) provides in relevant part as follows:
If the court has received a response from the office of the
Commonwealth’s attorney or county attorney that
prosecuted the case stating no objection to the application
to have the judgment vacated . . . the court may, without
a hearing, vacate the judgment in the manner established
in subsection (5) of this section.
(Emphasis added.) The statutory language is permissive. Thus, the matter lies
wholly within the sound discretion of the circuit court.
The standard governing our review is abuse of discretion -- “whether
the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999). We agree with the Commonwealth that Cook has failed to demonstrate any
abuse of discretion.
Accordingly, we AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Wallace G. Cook, pro se Daniel Cameron
St. James City, Florida Attorney General of Kentucky
Frankfort, Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
-3-