AN ACT relating to criminal procedure.

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AN ACT relating to criminal procedure. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 431.073 is amended to read as follows: 3
(1) Any person who has been: 4
(a) Convicted of a Class D felony violation of KRS 17.175, 186.990, 194A.505, 5
194B.505, 217.181, 217.207, 217.208, 218A.140, 218A.1415, 218A.1416, 6
218A.1417, 218A.1418, 218A.1423, 218A.1439, 218A.282, 218A.284, 7
218A.286, 218A.320, 218A.322, 218A.324, 218A.500, 244.165, 286.11 -057, 8
304.47-025, 324.990, 365.241, 434.155, 434.675, 434.850, 434.872, 511.040, 9
512.020, 514.030, 514.040, 514.050, 514.060, 514.065, 514.070, 514.080, 10
514.090, 514.100, 514.110, 514.120, 514.140, 514.150, 514.160, 516.030, 11
516.060, 516.090, 516.108, 517.120, 518.040, 522.040, 524.100, 525.113, 12
526.020, 526.030, 528.020, 528.040, 528.050, 530.010, or 530.050; 13
(b) Convicted of a series of Class D felony violation s of one (1) or more statutes 14
enumerated in paragraph (a) of this subsection arising from a single incident; 15
(c) Granted a full pardon; or 16
(d) Convicted of a Class D felony, or an offense prior to January 1, 1975 , which 17
was punishable by not more than five (5) years' incarceration, which was not a 18
violation of KRS 189A.010, 508.032, or 519.055, abuse of public office, a sex 19
offense, or an offense committed against a child, and did not result in serious 20
bodily injury or death; or of multiple felony offenses eligible under this 21
paragraph; 22
may file with the court in which he or she was convicted an application to have the 23
judgment vacated. The application shall be filed as a motion in the original criminal 24
case. The person shall be informed of the right at the time of adjudication. 25
(2) (a) A verified application to have the judgment vacated under this section shall be 26
filed no sooner than five (5) ye ars after the completion of the person's 27
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sentence, or five (5) years after the successful completion of the person's 1
probation or parole, whichever occurs later. 2
(b) Upon the payment of the filing fee and the filing of the application, the Circuit 3
Court cl erk shall serve a notice of filing upon the office of the 4
Commonwealth's attorney or county attorney that prosecuted the case and the 5
county attorney of the county where the judgment was entered. The office of 6
the Commonwealth's attorney or county attorney that prosecuted the case 7
shall file a response within sixty (60) days after being served with the notice 8
of filing. That time period may be extended for good cause, but the hearing on 9
the application to vacate the judgment shall occur no later than one hu ndred 10
twenty (120) days following the filing of the application. The inability to 11
determine the location of the crime victim shall constitute good cause for an 12
extension of time. A[No] hearing upon the merits of the application shall not 13
be scheduled until the Commonwealth's response has been filed, or if no 14
response is received, no later than one hundred twenty (120) days after the 15
filing of the application. 16
(c) In any case in which the Commonwealth objects that the application is grossly 17
incomplete, the c ourt shall order the person or agency originating the 18
application to supplement the application. 19
(3) Upon the filing of the Commonwealth's response to an application, or if no 20
response is received, no later than one hundred twenty (120) days after the fili ng of 21
the application, the court shall set a date for a hearing and the Circuit Court clerk 22
shall notify the office of the Commonwealth's attorney or county attorney that 23
prosecuted the case. The office of the Commonwealth's attorney or county attorney 24
that prosecuted the case shall notify the victim of the crime, if there was an 25
identified victim. The Commonwealth's attorney or county attorney shall be 26
authorized to obtain without payment of any fee information from the 27
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Transportation Cabinet regarding the crime victim's address on file regarding any 1
vehicle operator's license issued to that person. 2
(4) (a) In an application pursuant to subsection (1)(d) of this section, upon the filing 3
of the Commonwealth's response objecting to the vacating of a judgment and 4
expungement of a record, the court shall schedule a hearing within one 5
hundred twenty (120) days of the Commonwealth's response. The prosecutor 6
shall specify in the objection the reasons for believing a denial of the 7
application is justified. At the he aring at which the applicant or his or her 8
attorney must be present, the applicant must prove by clear and convincing 9
evidence that: 10
1. Vacating the judgment and expunging the record is consistent with the 11
welfare and safety of the public; 12
2. The action is supported by his or her behavior since the conviction or 13
convictions, as evidenced that he or she has been active in rehabilitative 14
activities in prison and is living a law-abiding life since release; 15
3. The vacation and expungement is warranted by the in terests of justice; 16
and 17
4. Any other matter deemed appropriate or necessary by the court to make 18
a determination regarding the petition for expungement is met. 19
(b) At the hearing, the applicant may testify as to the specific adverse 20
consequences he or she may be subject to if the application is denied. The 21
court may hear testimony of witnesses and any other matter the court deems 22
proper and relevant to its determination regarding the application. The 23
Commonwealth may present proof of any extraordinary circu mstances that 24
exist to deny the application. A victim of any offense listed in the application 25
shall have an opportunity to be heard at any hearing held under this section. 26
(c) If the court determines that circumstances warrant vacation and expungement 27
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and that the harm otherwise resulting to the applicant clearly outweighs the 1
public interest in the criminal history record information being publicly 2
available, then the original conviction or convictions shall be vacated and the 3
records shall be expunged. T he order of expungement shall not preclude a 4
prosecutor's office from retaining a nonpublic record for law enforcement 5
purposes only. 6
(5) The court may order the judgment vacated, and if the judgment is vacated the court 7
shall: 8
(a) Dismiss with prejudice any charges which are eligible for expungement under 9
subsection (1) of this section or KRS 431.076 or 431.078 and any charges for 10
felonies, misdemeanors, violations, or traffic infractions that were dismissed 11
or amended in the criminal action;[,] and[,] 12
(b) Upon full payment of the fee in subsection (11) of this section, order 13
expunged all records in the custody of the court and any records in the 14
custody of any other agency or official, including law enforcement records, if 15
the court finds that: 16
1.[(a)] The person had not in the five (5) years prior to the filing of the 17
application to have the judgment vacated been convicted of a felony or a 18
misdemeanor; 19
2.[(b)] No proceeding concerning a felony or misdemeanor is pending [or 20
being instituted ]against the person; and 21
3.[(c)] For an application pursuant to subsection (1)(d) of this section, the 22
person has been rehabilitated and poses no significant threat of 23
recidivism. 24
(6) If the court has received a response from the office of the Commonwealth's attorney 25
or county attorney that prosecuted the case stating no objection to the application to 26
have the judgment vacated, or if one hundred twenty (120) days have elapsed since 27
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the filing of the application and no response has been received from the victim or 1
the offi ce of the Commonwealth's attorney or county attorney that prosecuted the 2
case, the court may, without a hearing, vacate the judgment in the manner 3
established in subsection (5) of this section. 4
(7) Upon entry of an order vacating and expunging a conviction, the original conviction 5
shall be vacated and, upon full payment of the fee in subsection (11) of this section, 6
the record shall be expunged. The court and other agencies shall cause records to be 7
deleted or removed from their computer systems so that the matter shall not appear 8
on official state -performed background checks. The court and other agencies shall 9
reply to any inquiry that no record exists on the matter. The person whose record is 10
expunged shall not have to disclose the fact of the record or an y matter relating 11
thereto on an application for employment, credit, or other type of application. If the 12
person is not prohibited from voting for any other reason, the person's ability to 13
vote shall be restored and the person may register to vote. 14
(8) An o rder vacating a conviction under this section shall not extend or revive an 15
expired statute of limitations, shall not constitute a finding of legal error regarding 16
the proceedings leading to or resulting in the conviction, shall not nullify any 17
findings of fact or conclusions of law made by the trial court or any appellate court 18
regarding the conviction, and shall not constitute a finding of innocence regarding 19
the conviction. 20
(9) The Administrative Office of the Courts shall establish a form application to be 21
used in filing an application to have judgment vacated and records expunged. 22
(10) The filing fee for an application to have judgment vacated and records expunged 23
shall be fifty dollars ($50), which shall be deposited into a trust and agency account 24
for deputy clerks and shall not be refundable. 25
(11) (a) Upon the issuance of an order vacating and expunging a conviction pursuant 26
to this section, the applicant shall be charged an expungement fee of two 27
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hundred fifty dollars ($250), which may be payable by an installment plan in 1
accordance with KRS 534.020. 2
(b) When the order is issued, the court shall set a date, no sooner than eighteen 3
(18) months after the date of the order, by which the defendant must comply 4
with the installment payment plan. The applicant shall be given notice of the 5
total amount due, the pa yment frequency, and the date by which all payments 6
must be made. The notice shall state that the expungement cannot be 7
completed until full payment is received, and that if the applicant has not 8
completed the installment payment plan by the scheduled date , he or she shall 9
appear on that date to show good cause as to why he or she is unable to satisfy 10
the obligations. Notwithstanding [provisions of ]KRS 534.020 to the contrary, 11
an[no] applicant shall not be ordered to jail for failure to complete an 12
installment plan ordered pursuant to this section. 13
(c) The revenues and interest from the expungement fee shall be deposited in the 14
expungement fund created in KRS 431.0795. 15
(12) This section shall be retroactive. 16
Section 2. KRS 431.078 is amended to read as follows: 17
(1) Any person who has been convicted of: 18
(a) A misdemeanor, a violation, or a traffic infraction not otherwise classified as a 19
misdemeanor or violation, or a series of misdemeanors, violations, or traffic 20
infractions arising from a single incident; or 21
(b) A series of misdemeanors, violations, or traffic infractions not arising from a 22
single incident; 23
may petition the court in which he or she was convicted for expungement of his or 24
her misdemeanor or violation record within that judicial district, including a record 25
of any charges for felonies, misdemeanors, violations, or traffic infractions that 26
were dismissed or amended in the criminal action. The person shall be informed of 27
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the right at the time of adjudication. 1
(2) Except as provided in KRS 218A.275(8) and 218A.276(8), the petition shall be 2
filed no sooner than five (5) years after the completion of the person's sentence or 3
five (5) years after the successful completion of the person's probation, whichever 4
occurs later. 5
(3) Upon the filing of a petition, the court shall set a date for a hearing, no sooner than 6
thirty (30) days after the filing of the petition, and shall notify the county attorney; 7
the victim of the crime, if there was an identified victim; and any other person 8
whom the person filing the petition has reason to believe may have relevant 9
information related to the expungement of the record. Inability to locate the victim 10
shall not delay the proceedings in the case or preclude the holding of a hearing or 11
the issuance of an order of expungement. 12
(4) For a petition brought under subsection (1)(a) of this section, the court shall order 13
expunged all records in the custody of the court and any records in the custody of 14
any other agency or official, including law enforcement records, if at the hearing 15
the court finds that: 16
(a) The offense was not a sex offense or an offense committed against a child; 17
(b) The person had not in the five (5) years prior to the filing of the petition for 18
expungement been convicted of a felony or a misdemeanor; 19
(c) No proceeding concerning a felony or misdemeanor is pending [or being 20
instituted ]against the person; and 21
(d) The offense is not one subject to enhancement for a second or subsequent 22
offense or , if the law specifies a per iod for enhancement for a second or 23
subsequent offense, the time for such an enhancement has expired. 24
(5) For a petition brought under subsection (1)(b) of this section, the court may order 25
expunged all records in the custody of the court and any records i n the custody of 26
any other agency or official, including law enforcement records, if at the hearing 27
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the court finds that: 1
(a) The offense was not a sex offense or an offense committed against a child; 2
(b) The person had not in the five (5) years prior to t he filing of the petition for 3
expungement been convicted of a felony or a misdemeanor; 4
(c) No proceeding concerning a felony or misdemeanor is pending [or being 5
instituted ]against the person; and 6
(d) The offense is not one subject to enhancement for a sec ond or subsequent 7
offense or , if the law specifies a period for enhancement for a second or 8
subsequent offense, the time for such an enhancement has expired. 9
(6) Upon the entry of an order to expunge the records, the proceedings in the case shall 10
be deemed never to have occurred; the court and other agencies shall cause records 11
to be deleted or removed from their computer systems so that the matter shall not 12
appear on official state -performed background checks; the persons and the court 13
may properly reply t hat no record exists with respect to the persons upon any 14
inquiry in the matter; and the person whose record is expunged shall not have to 15
disclose the fact of the record or any matter relating thereto on an application for 16
employment, credit, or other type of application. 17
(7) The filing fee for a petition under this section shall be one hundred dollars ($100). 18
The first fifty dollars ($50) of each fee collected pursuant to this subsection shall be 19
deposited into a trust and agency account for deputy clerks and shall not be 20
refundable. 21
(8) Copies of the order shall be sent to each agency or official named therein. 22
(9) Inspection of the records included in the order may thereafter be permitted by the 23
court only upon petition by the person who is the subject o f the records and only to 24
those persons named in the petition. 25
(10) This section shall be [deemed to be ] retroactive[, and any person who has been 26
convicted of a misdemeanor prior to July 14, 1992, may petition the court in which 27
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he was convicted, or if he was convicted prior to the inception of the District Court 1
to the District Court in the county where he now resides, for expungement of the 2
record of one (1) misdemeanor offense or violation or a series of misdemeanor 3
offenses or violations arising from a single incident, provided that the offense was 4
not one specified in subsection (4) and that the offense was not the precursor 5
offense of a felony offense for which he was subsequently convicted. This section 6
shall apply only to offenses against the Commonwealth of Kentucky]. 7
(11) As used in this section, "violation" has the same meaning as in KRS 500.080. 8
(12) Any person denied an expungement prior to June 25, 2013, due to the presence of a 9
traffic infraction on his or her record may file a new petition for expungement of 10
the previously petitioned offenses, which the court shall hear and decide under the 11
terms o f this section. [No ] Court costs or other fees, from the court or any other 12
agency, shall not be required of a person filing a new petition under this subsection. 13
Section 3. KRS 532.080 is amended to read as follows: 14
(1) When a defendant is found to be a persistent felony offender, the jury, in lieu of the 15
sentence of imprisonment assessed under KRS 532.060 for the crime of which such 16
person presently stands convicted, sha ll fix a sentence of imprisonment as 17
authorized by subsection (5) or (6) of this section. When a defendant is charged 18
with being a persistent felony offender, the determination of whether or not he or 19
she is such an offender and the punishment to be impose d pursuant to subsection 20
(5) or (6) of this section shall be determined in a separate proceeding from that 21
proceeding which resulted in his or her last conviction. Such proceeding shall be 22
conducted before the court sitting with the jury that found the def endant guilty of 23
his or her most recent offense unless the court for good cause discharges that jury 24
and impanels a new jury for that purpose. 25
(2) A persistent felony offender in the second degree is a person who is more than 26
twenty-one (21) years of age a nd who stands convicted of a felony after having 27
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been convicted of one (1) previous felony. As used in this provision, a previous 1
felony conviction is a conviction of a felony in this state or conviction of a crime in 2
any other jurisdiction provided: 3
(a) That a sentence to a term of imprisonment of one (1) year or more or a 4
sentence to death was imposed therefor; and 5
(b) That the offender was over the age of eighteen (18) years at the time the 6
offense was committed; and 7
(c) That the offender: 8
1. Completed s ervice of the sentence imposed on the previous felony 9
conviction within five (5) years prior to the date of commission of the 10
felony for which he or she now stands convicted; or 11
2. Was on probation, parole, postincarceration supervision, conditional 12
discharge, conditional release, furlough, appeal bond, or any other form 13
of legal release from any of the previous felony convictions at the time 14
of commission of the felony for which he or she now stands convicted; 15
or 16
3. Was discharged from probation, parole, p ostincarceration supervision, 17
conditional discharge, conditional release, or any other form of legal 18
release on any of the previous felony convictions within five (5) years 19
prior to the date of commission of the felony for which he or she now 20
stands convicted; or 21
4. Was in custody from the previous felony conviction at the time of 22
commission of the felony for which he or she now stands convicted; or 23
5. Had escaped from custody while serving any of the previous felony 24
convictions at the time of commission of the felony for which he or she 25
now stands convicted. 26
(3) A persistent felony offender in the first degree is a person who is more than twenty -27
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one (21) years of age and who stands convicted of a felony after having been 1
convicted of two (2) or more felonie s, or one (1) or more felony sex crimes against 2
a minor as defined in KRS 17.500, and now stands convicted of any one (1) or more 3
felonies. As used in this provision, a previous felony conviction is a conviction of a 4
felony in this state or conviction of a crime in any other jurisdiction provided: 5
(a) That a sentence to a term of imprisonment of one (1) year or more or a 6
sentence to death was imposed therefor; and 7
(b) That the offender was over the age of eighteen (18) years at the time the 8
offense was committed; and 9
(c) That the offender: 10
1. Completed service of the sentence imposed on any of the previous 11
felony convictions within five (5) years prior to the date of the 12
commission of the felony for which he or she now stands convicted; or 13
2. Was on probatio n, parole, postincarceration supervision, conditional 14
discharge, conditional release, furlough, appeal bond, or any other form 15
of legal release from any of the previous felony convictions at the time 16
of commission of the felony for which he or she now stands convicted; 17
or 18
3. Was discharged from probation, parole, postincarceration supervision, 19
conditional discharge, conditional release, or any other form of legal 20
release on any of the previous felony convictions within five (5) years 21
prior to the date of co mmission of the felony for which he or she now 22
stands convicted; or 23
4. Was in custody from the previous felony conviction at the time of 24
commission of the felony for which he or she now stands convicted; or 25
5. Had escaped from custody while serving any of the previous felony 26
convictions at the time of commission of the felony for which he or she 27
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now stands convicted. 1
(4) For the purpose of determining whether a person has two (2) or more previous 2
felony convictions, two (2) or more convictions of crime for which that person 3
served concurrent or uninterrupted consecutive terms of imprisonment shall be 4
deemed to be only one (1) conviction, unless one (1) of the convictions was for an 5
offense committed while that person was imprisoned. 6
(5) A person who is found to be a persistent felony offender in the second degree shall 7
be sentenced to an indeterminate term of imprisonment pursuant to the sentencing 8
provisions of KRS 532.060(2) for the next highest degree than the offense for 9
which convicted. A person who is f ound to be a persistent felony offender in the 10
second degree shall not be eligible for probation, shock probation, or conditional 11
discharge, unless all offenses for which the person stands convicted are Class D 12
felony offenses which do not involve a violen t act against a person, in which case 13
probation, shock probation, or conditional discharge may be granted. A violent 14
offender who is found to be a persistent felony offender in the second degree shall 15
not be eligible for parole except as provided in KRS 439.3401. 16
(6) A person who is found to be a persistent felony offender in the first degree shall be 17
sentenced to imprisonment as follows: 18
(a) If the offense for which he or she presently stands convicted is a Class A or 19
Class B felony, or if the person was p reviously convicted of one (1) or more 20
sex crimes committed against a minor as defined in KRS 17.500 and presently 21
stands convicted of a subsequent sex crime, a persistent felony offender in the 22
first degree shall be sentenced to an indeterminate term of i mprisonment, the 23
maximum of which shall not be less than twenty (20) years nor more than 24
fifty (50) years, or life imprisonment, or life imprisonment without parole for 25
twenty-five (25) years for a sex crime committed against a minor; 26
(b) If the offense fo r which he or she presently stands convicted is a Class C or 27
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Class D felony, a persistent felony offender in the first degree shall be 1
sentenced to an indeterminate term of imprisonment, the maximum of which 2
shall not be less than ten (10) years nor more than twenty (20) years. 3
(7) A person who is found to be a persistent felony offender in the first degree shall not 4
be eligible for probation, shock probation, or conditional discharge, unless all 5
offenses for which the person stands convicted are Class D felony offenses which 6
do not involve a violent act against a person or a sex crime as that term is defined in 7
KRS 17.500, in which case, probation, shock probation, or conditional discharge 8
may be granted. If the offense the person presently stands convicted of is a Class A, 9
B, or C felony, the person shall not be eligible for parole until the person has served 10
a minimum term of incarceration of not less than ten (10) years, unless another 11
sentencing scheme applies. A violent offender who is found to be a persistent 12
felony offender in the first degree shall not be eligible for parole except as provided 13
in KRS 439.3401. 14
(8) A conviction, plea of guilty, or Alford plea under KRS 218A.1415 shall not trigger 15
the application of this section, regardless of the number or type of prior felony 16
convictions that may have been entered against the defendant. A conviction, plea of 17
guilty, or Alford plea under KRS 218A.1415 may be used as a prior felony offense 18
allowing this section to be applied if he or she is subsequently convicted of a 19
different felony offense. 20
(9) The provisions of this section amended by 1994 Ky. Acts ch. 396, sec. 11, shall be 21
retroactive. 22
(10) (a) Except as provided in paragraph (b) of this subsection, this section shall not 23
apply to a person convicted of a criminal offense if the penalty for that offense 24
was increased from a misdemeanor to a felony, or from a lower felony 25
classification to a higher felony classification, because the conviction 26
constituted a second or subsequent violation of that offense. 27
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(b) This subsection shal l not prohibit the application of this section to a person 1
convicted of: 2
1. A felony offense arising out of KRS 189A.010, 189A.090, 506.140, 3
508.032, 508.140, or 510.015; or 4
2. Any other felony offense if the penalty was not enhanced to a higher 5
level beca use the Commonwealth elected to prosecute the person as a 6
first-time violator of that offense. 7
(11) The enhancement of a sentence pursuant to this section shall not alter the felony 8
classification of the conviction. 9