Opinion
NO. 2011-CA-001688-MR
07-27-2012
SHAWN ANN HOWEL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Mark J. Stanziano Somerset, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 92-CR-00181
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MOORE AND THOMPSON, JUDGES. THOMPSON, JUDGE: Appellant, Shawn Ann Howel, appeals from an order of the Pulaski Circuit Court's summary denial of her motion to expunge a twenty-year old felony conviction. The issue presented is whether the circuit court had inherent powers to expunge appellant's felony conviction. We hold that it did not and, therefore, the circuit court properly denied her motion without conducting an evidentiary hearing.
In 1993, appellant entered a guilty plea to felony cultivating marijuana and related misdemeanors and was sentenced to one-year imprisonment, probated for two years. She served her period of probation without incident. In 2011, appellant filed a motion to expunge her felony conviction alleging that she had recently lost her employment and has been unable to find employment because of her felony conviction. The circuit court denied her motion without an evidentiary hearing and this appeal followed.
Two Kentucky statutes permit trial courts to expunge criminal records. Unfortunately for appellant, neither applies to her circumstances. KRS 431.076 confers authority on the courts to expunge criminal records of those who have been acquitted of the charged crimes or where the charges have been dismissed with prejudice. KRS 431.078 grants courts the authority to expunge criminal records of misdemeanor and violation records. There is no statutory provision giving the courts authority to expunge the criminal record where a person has entered a plea of guilty to a felony.
In Clements v. Commonwealth, 203 S.W.3d 710 (Ky.App. 2006), Clements argued that his felony conviction should be expunged because it prevented him from obtaining a higher-paying job. Although he recognized that the court had no statutory authority to expunge his conviction, he contended that it would be fair and equitable. Under facts materially indistinguishable from the present, this Court rejected the argument that circuit courts have inherent authority to expunge criminal records. Nevertheless, citing Commonwealth v. Holloway, 225 S.W.3d 404 (Ky.App. 2007), appellant argues that the circuit court had the inherent authority to expunge her felony conviction because it is an obstacle to obtaining employment. We disagree.
In U.S. v. Doe, 556 F.2d 391 (6th Cir. 1977), the Court stated that "it is within the inherent equitable powers of a [court] to order the expungement of a record in an appropriate case." Id. at 393. However, in Holloway, this Court recognized that the court's inherent authority to expunge records is extremely limited to "instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights." Holloway, 225 S.W.3d at 406.
Holloway did not involve a criminal conviction. The grand jury returned a "No True Bill" and the charges against Holloway were dismissed. Although this Court indicated that there may be a narrow exception to the rule stated in Clements, ultimately the Court held that Holloway did not allege constitutional infractions or extraordinary circumstances to justify expungement of his arrest records. Id. at 407.
Appellant's allegation that her felony conviction has made it difficult to obtain employment is insufficient to warrant an evidentiary hearing. Particularly in a competitive job market, a felony conviction increases the difficulty in obtaining employment. However, appellant's situation is not an extraordinary circumstance but is one faced by any job-seeker who has a felony conviction. Because appellant failed to set forth sufficient grounds warranting relief, the circuit court properly denied her motion without a hearing.
Based on the foregoing, the order of the Pulaski Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Mark J. Stanziano
Somerset, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky