Moore v. Commonwealth
Decision Date | 03 January 2020 |
Docket Number | NO. 2018-CA-001090-MR,2018-CA-001090-MR |
Parties | TIMOTHY G. MOORE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM BRACKEN CIRCUIT COURT
Moore is the former superintendent of Mason County Schools. In 2014, he was indicted for abuse of public trust over $10,000.00 but under $100,000.00 (Kentucky Revised Statute (KRS) 522.050(3)(b)), a Class C felony, after a state auditor's report found a significant number of irregularities in his travel reimbursement and other expenditures over several years. A superseding indictment added two counts of theft by deception over $10,000.00 (KRS 514.040(8)(b)), Class C felonies. Upon motion by defense counsel the matter was moved from Mason County to Bracken County. Just prior to trial, Moore accepted a plea bargain wherein, in exchange for dismissal with prejudice of two charges, and upon lowering the degree of the third charge, he entered a plea of guilty to the amended charge of theft by deception over $500.00 (KRS 514.040(8)(a)), a Class D felony.
Moore then completed a pretrial diversion program (which included payment of restitution of $25,000.00) over the next two years, after which he commenced this action for expungement by petition filed on December 22, 2017. The parties briefed the issues, and a hearing was held on June 6, 2018. The Bracken Circuit Court entered its order denying the petition on June 28, 2018, and Moore filed his notice of appeal on July 18 of that year.
We begin our discussion by stating the applicable standard of review:
Commonwealth v. Davis, 400 S.W.3d 286, 287-88 (Ky. App. 2013).
We dispatch with the easier issue, i.e., whether the circuit court correctly found that the two dismissed charges were ineligible for expungement, by finding no error. KRS 431.076(1) specifically excludes, for expungement eligibility, charges which have been dismissed "in exchange for a guilty plea to another offense[.]" (Emphasis ours.) Thus, no further discussion is necessary regarding circuit court's ruling that the dismissed charges were ineligible for expungement. "We cannot circumvent the plain language of KRS 431.076[.]" Commonwealth v. Jones, 406 S.W.3d 857, 861 (Ky. 2013).
More problematic is Moore's argument that the circuit court erred in denying expungement for the conviction which was ultimately dismissed after Moore completed the felony diversion program. Moore cites Commonwealth v. Shouse, 183 S.W.3d 204 (Ky. App. 2006), in support of his position that the legislature intended "that . . . a successful participant in a pretrial diversion program [be allowed] to expunge the record of his participation in that program[.]" Id. at 206. Accordingly, at first blush it appears that the circuit court erred in denying Moore's expungement eligibility of his diverted/dismissed charge.
However, nowhere does either Shouse or KRS 431.076 mandate expungement of a diverted/dismissed charge. Jones, supra, considered a similar argument (although the allegedly conflicting statute there involved a diverted/dismissed drug conviction under KRS 218A.275, rather than Moore's diversion/dismissal pursuant to KRS 533.258). The Jones court analyzed the dispute in this manner:
Jones, 406 S.W.3d at 860 (emphases ours). Likewise, Moore's completion of...
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