Opinion
NO. 2017-CA-000504-MR
05-25-2018
COMMONWEALTH OF KENTUCKY APPELLANT v. JESSE RUBLE; AND MICHELLE RUBLE APPELLEES
BRIEFS FOR APPELLANT: Andy Beshear Attorney General of Kentucky Andrew J. Gochenaur Special Assistant Attorney General Louisville, Kentucky BRIEF FOR APPELLEES: Bradley D. Clark Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 02-CR-001774-001 OPINION
REVERSING AND REMANDING
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BEFORE: DIXON, JOHNSON, AND TAYLOR, JUDGES. DIXON, JUDGE: The Commonwealth of Kentucky appeals two orders of the Jefferson Circuit Court granting the applications of Appellees, Jesse Ruble and Michelle Ruble, to expunge and vacate their felony convictions. Because we conclude the court erred as a matter of law, we reverse the orders and remand for further proceedings.
In August 2002, Appellees were jointly indicted on twenty-two felony counts and one misdemeanor count of theft by unlawful taking. The charges stemmed from Appellees' theft of funds from their employer on twenty-three separate occasions between October 1998 and July 2000, totaling $37,930.00. Appellees pled guilty to all charges; thereafter, they were sentenced to two years' imprisonment, which was probated for five years. Appellees paid the full amount of restitution at the time they were sentenced.
In August 2016, Appellees submitted applications to vacate and expunge their convictions pursuant to KRS 431.073. The statute enumerates specific Class D felonies and provides:
Any person who has been convicted of a Class D felony violation . . . or a series of Class D felony violations of one (1) or more statutes enumerated in this section arising from a single incident . . . may file with the court in which he or she was convicted an application to have the judgment vacated.KRS 431.073(1). The Commonwealth objected, contending Appellees' multiple felony convictions did not arise "from a single incident" as required by the statute. The court ultimately determined the convictions constituted a single event for the purposes of the statute and entered orders granting Appellees' applications. The Commonwealth now appeals.
The issue on appeal is whether the court erred by concluding Appellees' multiple felony convictions constituted a "single incident" under the expungement statute. This presents a question of statutory interpretation, and appellate review is de novo. Whitcomb v. Commonwealth, 424 S.W.3d 417, 419 (Ky. 2014). "As with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly. We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994).
KRS 431.073(1) allows persons convicted of "a series of Class D felony violations . . . arising from a single incident" to apply for expungement. Black's Law Dictionary defines "incident" as "[a] discrete occurrence or happening; an event." Black's Law Dictionary (10th ed. 2014). We are obligated "to accord statutory language its literal meaning unless to do so would lead to an absurd or wholly unreasonable result." Commonwealth v. Rhodes, 308 S.W.3d 720, 723 (Ky. App. 2010). The term "single," which commonly means "one," modifies the term "incident"; consequently, we find the language logically refers to felonies arising from one discrete criminal event.
It appears there are no published opinions interpreting the statutory language at issue here; however, in the context of double jeopardy, our courts have addressed multiple crimes arising from a "single course of conduct." Pursuant to KRS 505.020:
This Court recently rendered an opinion in Commonwealth v. Adams, 2016-CA-001739-MR, 2017 WL 4557600 (Ky. App. 2017), which directly addresses the issue presented here. Adams is not yet final, and a petition for discretionary review is pending before the Kentucky Supreme Court. 2017-SC-000599-D. --------
(1) When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when:
. . .
(c) The offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.
In Commonwealth v. Bass, 777 S.W.2d 916, 917 (Ky. 1989), the defendant was indicted on fifteen counts of submitting fraudulent monthly claim statements to the Kentucky Medical Assistance Program over a fifteen-month period. The Kentucky Supreme Court concluded the defendant was correctly charged with separate violations of the criminal statute corresponding to each individual fraudulent act. Id. at 918. The Court explained, "the test is whether individual acts are prohibited or the course of action and conduct which they constitute. We cannot find that the legislature intended the same punishment for one fraudulent claim of $100 as it did for 1,600 such claims amounting to $160,000." Id.
In Commonwealth v. Lewis, 903 S.W.2d 524, 525 (Ky. 1995), the defendant was convicted of two counts of fraudulent use of a credit card, which arose from two purchases made at a department store. On review, the Court determined the statutory elements of the offense did not prohibit a course of conduct; rather, the statute permitted separate offenses to be charged for each use of a stolen credit card. Id. at 526.
Finally, in Welborn v. Commonwealth, 157 S.W.3d 608, 611-12 (Ky. 2005), the defendant argued on appeal he was impermissibly convicted of three counts of first degree assault because the offenses arose from a continuing course of conduct. The Court noted the crime of assault was complete when the elements of the offense were met. Id. at 612. The Court found the defendant was properly convicted of three separate offenses, explaining:
The defendant shot the trooper three separate times and inflicted three separate wounds. The indictment specifically identifies each action by the location of the wound. Each shot was preceded by a sufficient period of time in which Welborn could reflect on his conduct and formulate intent to commit another act. . . . Evidence was introduced that the three shots resulted in three separate serious physical injuries. There was a sufficient break in the conduct and time so that the acts constituted separate and distinct offenses.Id. (emphasis added).
We believe the above-cited cases support the conclusion that "arising from a single incident" in KRS 431.073(1) refers to one discrete criminal event. Here, Appellees' multiple felony convictions did not arise from one, single occurrence of theft. Appellees committed twenty-two separate thefts over the course of a two-year period. After each theft, Appellees had ample time to reflect on their "conduct and formulate intent to commit another act." Id. The temporal break in Appellees' criminal conduct rendered each successive theft a separate and distinct offense. See id. Because Appellees' Class D felony convictions did not arise from a single incident as required by KRS 431.073(1), the circuit court erred as a matter of law by granting their applications for expungement.
For the reasons stated herein, we reverse the orders of the Jefferson Circuit Court and remand this matter for further proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Andy Beshear
Attorney General of Kentucky Andrew J. Gochenaur
Special Assistant Attorney General
Louisville, Kentucky BRIEF FOR APPELLEES: Bradley D. Clark
Lexington, Kentucky