Guide to Expungement in Kentucky - Department of Public ...

Guide to Expungement in Kentucky

By Julie Kaelin and Molly Rose Green July 19, 2016

Expungement can help Kentuckians with criminal records find housing and employment, among a host of other benefits. If expungement is granted, the person "shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application." KRS 431.073(6).

Table of Contents

Misdemeanor Convictions .......... Page 2 Felony Convictions ..........

Page 2 Fees ..........

Page 4 Non--convictions ..........

Pages 4--5 Diverted Charges ..........

Page 5 Possession Sealing ..........

Page 5 Pardons ..........

Page 5 Expungement Process .......... Page 6 Not Eligible? ..........

Page 6

Attachments:

Misdemeanor Eligibility Chart .......... Page 7 Felony Eligibility Chart ..........

Page 8 Eligible Class D Felonies ..........

Pages 9-10 Expungement Statute (KRS 431.073) ..........

Pages 11-12 Segregation of Criminal Records Statute (KRS 17.142) ..........

Page 13 Sample Segregation Motion and Order ..........

Pages 14-16 Possession Sealing Statute (KRS 218A.275) ..........

Pages 17-18 Request for Certificate of Eligibility (AOC RU 009) ..........

Page 19 Sample In Forma Pauperis Motion and Order .......... Pages 20-22 Affidavit of Indigency ..........

Pages 23-25 Motion and Order for Appointment of Counsel ..........

Pages 26-27 Petition for Misdemeanor Expungement (AOC 496.2) ..........

Pages 28-29 Application to Vacate and Expunge Felony (AOC 496.3) ..........

Pages 30-31 Petition for Expungement of Nonp Conviction (AOC 497.2) .........

Pages 32-33 Application for Pardon ..........

Pages 34-37 Application for Restoration of Rights .......... Pages 38-39

1

Misdemeanor Convictions

2016's House Bill 40 significantly alters misdemeanor expungement.

Before HB40, a person could only expunge a misdemeanor if he or she had no convictions at all after it, no convictions for the five years before it, and no felony convictions ever.

This generally meant that only a person with a single misdemeanor conviction was eligible for expungement.

The new law alters or removes those requirements.

Under the new law, a person may apply to expunge an unlimited number of misdemeanors, and they may seek misdemeanor expungement an unlimited number of times.

For a person with only a single misdemeanor or only one case of misdemeanors, expungement is mandatory.

KRS 431.073(4). However, expungement of multiple sets of misdemeanors is now discretionary. KRS 431.073(5).

Misdemeanor expungement costs $100 per case (not per charge), $50 of which is refundable if the expungement is denied. KRS 431.073(6).

Determining eligibility for misdemeanor expungement

A person can expunge misdemeanor(s), if the following circumstances are met: ? No criminal charges currently pending. KRS 431.073(4)(c), KRS 431.073(5)(c). ? Completion of 5 year waiting period. KRS 431.073(2). o If the person was only fined, their eligibility date will be 5 years from the date of sentencing/imposition of the fine. o If the person received a conditionally discharged sentence, their eligibility date will be 5 years from the date of their discharge. ? No misdemeanor or felony convictions in the five years prior to filing a petition for expungement. KRS 431.073(4)(b), KRS 431.073(5)(b). o Violations, traffic infractions, or non--convictions do not count. o The person no longer needs a "clean slate" ever since their last conviction. ? The offense was not a sex offense or an offense against a child. KRS 431.073(4)(a), KRS 431.073(5)(a). o These terms are not defined in the statute. ? The offense may not have been subject to enhancement for a second or subsequent offense or the time for the enhancement has expired. KRS 431.073(4)(d), KRS 431.073(5)(d). It is unclear how this will be interpreted. o Because the look--back period for DUI's was extended to 10 years, a person must now wait 10 years (from when they were charged) to expunge a misdemeanor DUI. KRS 189A.010.

Felony Convictions

Before HB40, felonies were not expungeable in Kentucky. The law creates a specific list of Class D felonies that are now eligible for expungement. KRS 431.073(1). The list of expungeable felonies covers between 60--70% of Class D felony charges. Some of the most commonly charged felonies that are expungeable include: Possession of a Controlled

2

Substance, Possession of a Forged Instrument, Theft by Unlawful Taking, Criminal Mischief, Tampering with Physical Evidence, Burglary in the Third Degree, and Flagrant Nonsupport. Some of the most commonly charged felonies that are not expungeable under HB40 include: Trafficking in a Controlled Substance, Wanton Endangerment, Promoting Contraband, and Fleeing or Evading Police.

A person may take advantage of Class D felony expungement under this statute only once.1 KRS 431.073(4)(a). AOC will preserve expungement records solely for this purpose. KRS 431.073(8). A person who has previously had a felony conviction voided and sealed is not prevented from receiving felony expungement.

A person may expunge multiple eligible Class D felonies if they are part of a series/arise from the same incident. KRS 431.073 (1). What this means exactly is yet to be determined.

HB40 also creates a new expungement process.

Under the law, a person applies (via AOC form) to have their conviction vacated.

If that petition is granted, the conviction will be vacated, dismissed with prejudice, then expunged. KRS 431.073(4). This helps with the interaction with federal law, etc. Felony expungement is discretionary, so a judge may deny the petition even if a person meets the statutory requirements. KRS 431.073(4).

If a person is otherwise eligible, an expungement under this section will automatically restore voting rights. KRS 431.073(6).

The felony expungement process costs $500, $450 of which is refundable if the expungement is denied. KRS 431.073(9). This fee covers all expungeable offenses in the case (misdemeanors included).

Determining eligibility for felony expungement

A person can expunge Class D felonies if the following circumstances are met: ? Their felony is on the eligibility felonies list. KRS 431.073(1). ? No criminal charges currently pending. KRS 431.073 (4)(c). ? Completion of 5 year waiting period. KRS 431.073(2). o If the person was only fined, their eligibility date will be 5 years from the date of sentencing/imposition of the fine. o If the person received a conditionally discharged sentence, their eligibility date will be 5 years from the date of their discharge. ? The person must not have been convicted of any misdemeanors or felonies in the five years prior to filing a petition for expungement. KRS 431.073(4)(b). o Violations and traffic infractions do not count. o The person no longer needs a "clean slate" ever since conviction. ? The person has not already had a Class D felony expunged under KRS 431.073. KRS 431.073(4)(a).

The mere presence of ineligible felonies on a person's record (such as ineligible Class D felonies, or Class A/B/C felonies), do not prevent the expungement of an eligible felony.

1 The law does not prevent someone from applying again if they were denied.

3

Immigration consequences: Non--U.S. citizens should speak with an immigration attorney before filing for expungement. Expungement can complicate the ability to prove "good moral character" on a naturalization application.

Fees

Misdemeanor case: $100; Felony case: $500; Acquittal/dismissal: no charge

This cost of felony expungement is very high compared to the national average.2

However, the law does not say the fee is not waivable. Attorneys working on behalf of low--income and indigent clients who cannot afford the fee should attempt to waive the fee with an in forma pauperis motion. See KRS 453.190 ("A court shall allow a poor person residing in this state to file or defend any action or appeal therein without paying costs.")

Non--convictions

Acquittals:

If a person was acquitted, charges may be expunged 60 days from the date of acquittal. KRS 431.076(1), (2).

Dismissals:

If charges were dismissed with prejudice and not in exchange for a plea on another charge or case (also called "dismissed/merged"), they may be expunged 60 days from the date of dismissal. KRS 431.076(1), (2).

If charges were dismissed without prejudice or in exchange for a plea on another charge or case (also called "dismissed/merged"), the person is not technically eligible for expungement. KRS 431.076(1). However, sometimes the KSP record report will show the charge as eligible. Therefore, you could go ahead and request the KSP report for these.

Grand Jury Indictments:

Under HB40, a person against whom felony charges were originally filed in District Court and was not indicted by the grant jury will be eligible to expunge those charges after 12 months.

KRS 431.076(1), (2).

Segregation as last resort option:

If you have a client who had a felony charge dismissed without prejudice, and you cannot get the Commonwealth to agree to change it to a dismissal with prejudice, or get creative in another way, you can ask for the records related to the dismissed charge(s) to be

2 Kentucky's felony expungement fee is the second highest in the country. Many states' fees are between $150 and $250. See also "Here's why many Americans don't clear their criminal records," newshour/rundown/heres--why--many--americans--dont-- clear--their--criminal--records/; "Want to Clear Your Record? It'll Cost You $450," 2016/05/31/want--to--clear--your--record--it--ll--cost--you-- 450#.vEZvPwHPK.

4

segregated. Make sure you get a similar order in district court if there was an accompanying district court case. KRS 17.142.

Diverted Charges

If a charge was diverted, it should be dismissed, but the Court must enter the dismissal, which usually requires an attorney or the defendant moving for the dismissal to be entered. Occasionally you will find a case where the defendant agreed to do diversion (i.e., defendant to stay out of trouble for 6 months, dismiss if no new offenses), but then no one ever went back to court for them to secure the dismissal. In these cases, you will need to redocket the case to request that the charge(s) be officially dismissed. You can also ask the prosecutor to do this nunc pro tunc, which can backdate the effective date of dismissal, which could mean a much sooner expungement eligibility date. KRS 431.076.

Possession sealing

Certain first time drug possession convictions under KRS 218A.1415, 218A.1416, or 218A.1417 may be voided and sealed, using a different process. KRS 218A.275(9). A court may void these convictions upon successful completion of the sentence, and the records can then be sealed. A person does not need to disclose a sealed conviction, but it is not as complete as expungement because it is still available to the court.

To seal one of these convictions, file a motion pursuant to KRS 218A.275(9).

HB40 does not prevent a person from receiving both expungement and a void and seal.

If you have a client with an possession conviction and an expungement--eligible felony in a separate case, you could consider pursuing both to clear their record.

Pardons

Before HB40, a person who received a pardon from the governor was unable to expunge their pardoned conviction(s). Under HB40, a person who has received a pardon may now apply for expungement. KRS 431.073 (1).

Anyone requesting expungement of their pardoned record should note that they have been pardoned when requesting their Certificate of Eligibility and submit a copy of their letter of pardon when filing their expungement request in court. This also means that a pardon is a route to expungement for those who are otherwise ineligible under the law.

Expungement Process

STEP 1: Get a Certificate of Eligibility.

Any person seeking expungement must first request a Certificate of Eligibility.

This costs $40, and you can request it online here: courts.expungement/Pages/default.aspx.

You can also order the certificate by mail. Send the Certification Form with a $40 money order to: Records Unit, Administrative Office of the Courts, 1001 Vandalay Drive, Frankfort, KY 40601.

5

AOC and KSP prepare these documents, and they are working under a significant backlog. KSP processes these requests on a first come, first serve basis. If the packet says that your client is ineligible, its possible there was a mistake. You may still file for expungement.

STEP 2: File the certification packet and expungement petition with the court within 30 days.

You have 30 days to file your documents with the court in the county where the charges originated. After 30 days, the certification packet will expire. There is a different form for acquittals/dismissals, misdemeanors, or felonies.

The form asks where the expungement request should be sent. Benjamin Pugh (prlaw.legal) submitted this suggested list: "All federal databases, including Dept. of Homeland Security & Immigration (ICE), Courtnet, County Detention Center/Jail, FBI database a.k.a NCIC, Cabinet for Health and Family Services, any KY educational database, County Board of Education, Jailtracker, City Police Department, County Sheriff's office, County or local Expungement & Information Processing Dept. (EIP), County Police, AOC."

Not Eligible?

Sometimes you will have a client who is technically ineligible because of some failure to meet every requirement laid out in the statutes. In these cases, it may be worth your while to ask for a meeting with a prosecutor and ask if they are willing to get creative to ensure the person gets an expungement.

It is essential in these types of cases to really go to bat for your client ? to show the prosecutor why he or she is deserving of this "creative legal maneuvering." For example, has the client completed rehab, volunteered, changed their life around, etc.? Did they not have an attorney when they agreed to be convicted of the offenses, and thus didn't understand how it might affect their future? Think of all the reasons they deserve a clean record, and be ready to present them succinctly, along with information about why the offenses sought to be expunged were not of such a grave nature that expunging them would undermine our system of laws.

Authors

Julie Kaelin is a partner at Faulkner Kaelin Law, , 514 S. 5th Street, Suite 102, Louisville, KY 40202, (502) 584--0969.

Molly Rose Green is the founder of Clean Slate Kentucky and was the 2015--2016 Expungement Fellow at the Department of Public Advocacy.

Additional resources are available at .

6

Expungement Process

STEP 1: Get a Certificate of Eligibility.

Any person seeking expungement must first request a Certificate of Eligibility.

This costs $40, and you can request it online here: courts.expungement/Pages/default.aspx You can also order it by mail. Send the Certification Form with a $40 money order to: Records Unit, AOC, 1001 Vandalay Drive, Frankfort, KY 40601.

AOC and KSP prepare these documents, and they are working under a significant backlog. KSP processes these requests on a first come, first serve basis. If the packet says that your client is ineligible, it is possible there was a mistake. You may still file for expungement.

STEP 2: File the packet and expungement petition with the court within 30 days.

You have 30 days to file your documents with the court in the county where the charges originated before the certification packet will expire. There is a different form for acquittals/dismissals, misdemeanors, or felonies.

The form asks where the request should be sent. Benjamin Pugh submitted this suggested list: "All federal databases, including Dept. of Homeland Security & Immigration (ICE), any and all Kentucky court, agency, database of same, along with any federal counterpart, Courtnet, County Detention Center/Jail, FBI database a.k.a. NCIC, Cabinet for Health and Family Services, any educational database affiliated with Kentucky or the County Board of Education, Jailtracker, City Police Department, County Sheriff's office, County or local Expungement & Information Processing Department (EIP), County Police, AOC."

Not Eligible?

Sometimes you will have a client who is technically ineligible under the law. In these cases, it may be worth your while to ask for a meeting with a prosecutor and ask if they are willing to get creative to ensure the person gets an expungement.

It is essential in these types of cases to really go to bat for your client ? to show the prosecutor why he or she is deserving of this "creative legal maneuvering." For example, has the client completed rehab, volunteered, turn their life around? Did they not have an attorney when they pled guilty, and thus didn't understand how it might affect their future? Think of all the reasons they deserve a clean record, and be ready to present them succinctly, along with information about why the offenses sought to be expunged were not of such a grave nature that expunging them would undermine our system of laws.

Authors

Julie Kaelin is a partner at Faulkner Kaelin Law, , 514 S. 5th Street, Suite 102, Louisville, KY 40202, (502) 584--0969.

Molly Rose Green is the founder of Clean Slate Kentucky and was the 2015-2016 Expungement Fellow at the Department of Public Advocacy. Additional resources are available at .

6

Use this chart if you were convicted of misdemeanors.

You can apply to expunge an unlimited number of misdemeanors, even if they were in different cases or counties.

Are there any criminal charges currently pending against you?

YES You are not currently eligible.

NO

Have you been convicted of any misdemeanors or felonies in the past

five years? YES You are not yet eligible. NO

You cannot have any misdemeanor or felony convictions on your record for the five years before you apply for expungement.

Have five years passed since the completion of your sentence (including

payment of fines and probation)? NO You are not yet eligible. YES

You must wait five years after you complete your sentence, pay any fines/ fees, or complete probation - whichever was later.

Do you have a conviction for a sex offense or an offense against a child?

YES You are not eligible to expunge that misdemeanor.

NO

Was your offense subject to enhancement for a second or subsequent

offense?

YES You may be eligible. Contact an attorney.

NO You are eligible for expungement.



Disclaimer of Liability: This information is provided as a public service. The information is not legal advice or legal representation.

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download