RENDERED: MARCH 22, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

MODIFIED: JULY 12, 2024; 10:00 A.M.

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0531-MR

COMMONWEALTH OF KENTUCKY APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NOS. 95-CR-00963 AND 95-F-05289

C.R. APPELLEE 

AND

NO. 2022-CA-0533-MR

COMMONWEALTH OF KENTUCKY APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 09-CR-00097

J.W. APPELLEE 
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OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: CALDWELL, A. JONES, AND TAYLOR, JUDGES.

JONES, A., JUDGE: The Commonwealth of Kentucky brings Appeal No. 2022-

CA-0531-MR from an April 14, 2022, order of the Fayette Circuit Court granting 

C.R.’s Application to Vacate and Expunge Felony Conviction. The 

Commonwealth of Kentucky also brings Appeal No. 2022-CA-0533-MR from an 

April 20, 2022, order granting J.W.’s Application to Vacate and Expunge Felony 

Conviction. We reverse and remand both Appeal No. 2022-CA-0531-MR and 

Appeal No. 2022-CA-0533-MR.1

MODIFICATION & RAP 5(B)(2)

Following rendition of our original Opinion on March 22, 2024, 

Appellees filed a petition for modification requesting us to withdraw the opinion, 

which used the Appellees’ real names, and enter a modified opinion using only

their initials. In support of their petitions, Appellees cited RAP 5(B)(2). Notably, 

the Commonwealth affirmatively stated in its response that it did “not object to 

[Appellees’] petition[s] for modification.” 

1 By Order entered February 9, 2023, the Court of Appeals ordered Appeal Nos. 2022-CA-0531-

MR and 2022-CA-0533-MR to be heard together per Kentucky Rules of Appellate Procedure

(RAP) 2(G).
-3-

RAP 5(B)(2) provides in relevant part that: “[i]nitials or a descriptive 

term must be used instead of a name in cases involving . . . expungements.” 

Below, Appellees sought to expunge two categories of charges: (1) charges they 

pleaded guilty to; and (2) charges that were dismissed. The trial court granted 

expungement as to both types of charges. On appeal, the Commonwealth 

challenged the expungements only as to the dismissed charges. While we are 

reversing the trial court as to the expungements of the dismissed charges, the 

expungements of the other charges, having not been challenged on appeal, remain 

intact. 

The finally expunged charges are inextricably interwoven with those 

challenged by the Commonwealth on appeal making it impossible to discuss and 

analyze the latter without mentioning the former. Since our Opinion discusses the 

finally expunged charges as well as the other charges, we believe both the spirit 

and the plain language of RAP 5(B)(2) dictate that we do not identify the parties by 

their real names. It is for this reason that the majority has concluded that 

modification of our prior Opinion is necessary to bring it into compliance with 

RAP 5(B)(2). 

The dissent categorizes our interpretation of RAP 5(B)(2) as “liberal.” 

To the contrary, in our view, we are simply applying the RAP as it is written after 

Appellees more explicitly called the RAP’s application to these appeals to our 
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attention in their petition for modification. The RAP does not state that initials 

shall only be used in cases in which the expungement is affirmed by the reviewing 

court. Rather, as Appellees point out in their petition, it states that initials must be 

used in cases involving expungements.2 These appeals irrefutably involve 

expungements. They require discussion of both the expungements being 

challenged by the Commonwealth on appeal and the finally expunged charges

which the Commonwealth did not challenge.

The dissent makes much out of the Kentucky Supreme Court’s use of 

the appellee’s full name in Commonwealth v. Davis, 686 S.W.3d 167 (Ky. 2024). 

The Davis opinion does not contain any discussion of RAP 5(B)(2) and we cannot 

see from the appellate record that the issue was ever briefed by the parties or

specifically addressed by the Court. Since Davis makes no explicit holding 

regarding RAP 5(B)(2), we respectfully disagree with the dissent’s characterization 

of it as binding precedent regarding the use of initials (or lack thereof) in 

expungement-related cases. Cawood v. Hensley, 247 S.W.2d 27, 29 (Ky. 1952) 

(“The question actually before the court is investigated with care, and considered 

in its full extent. Other principles which may serve to illustrate it are considered in 

2

In interpreting statutes, we adhere to the maxim that “the Legislature meant exactly what it 

said, and said exactly what it meant.” Blackaby v. Barnes, 614 S.W.3d 897, 901 (Ky. 2021) 

(quoting Commonwealth v. Moore, 545 S.W.3d 848, 851 (Ky. 2018)). We see no reason why the 

same should not hold true when interpreting judicial rules promulgated by our Supreme Court. 
-5-

their relation to the case decided, but their possible bearing on all other cases is 

seldom completely investigated.”) (quoting Cohens v. State of Virginia, 19 U.S. 

264, 339, 5 L. Ed. 257 (1821)). 

Finally, while the transparency concerns expressed by the dissent are 

significant, we cannot allow those concerns alone to override our interpretation of

RAP 5(B)(2)’s express language. The Kentucky Constitution undeniably delegates 

the authority to adopt rules of practice and procedure for the Court of Justice and 

rules governing appellate jurisdiction to the Kentucky Supreme Court. Ky. Const.

116. As a lower court, we are duty bound to follow those rules.3 To the extent the 

RAPs require clarification or revision, we are confident the Supreme Court will 

address the issue in due course after appropriate deliberation. Until such time, we 

must apply the RAPs as they currently stand. And, such application, in our view, 

requires use of initials in all cases involving expungements. These are such cases.4 

3 The current RAPs became effective January 1, 2023, and necessarily must supersede any 

Administrative Orders entered by this Court prior to that date. 

4 The dissent expresses some concern that our interpretation of the RAPs will allow litigants to 

trigger RAP 5(B)(2) by mere use of the word “expungement” in their briefs. We are confident 

the learned jurists of this Commonwealth are clever enough to ferret out meritless attempts to 

invoke the rule. In any event, such trickery is clearly not afoot in these cases. The only issues 

presented before the trial court concerned expungement, and the Commonwealth itself has noted 

no objection to the use of initials in these appeals in compliance with RAP 5(B)(2). 
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APPEAL NO. 2022-CA-0531-MR

On October 24, 1995, C.R. was indicted by the Fayette County Grand 

Jury upon seventeen counts of theft by unlawful taking over $300 (Class D felony) 

and one count of theft by unlawful taking under $300. The Commonwealth and 

C.R. ultimately reached a plea agreement. Thereunder, C.R. pleaded guilty to two 

counts of theft by unlawful taking over $300, and the Commonwealth

recommended a total of three-years’ imprisonment. In a December 19, 1995, 

Judgment on Guilty Plea, the circuit court accepted C.R.’s guilty plea to two 

counts of theft by unlawful taking over $300 and noted the Commonwealth’s 

recommendation to dismiss the remaining counts. By Final Judgment entered 

January 23, 1996, the circuit court sentenced C.R. to a total of three-years’ 

imprisonment upon her guilty plea to two counts of theft by unlawful taking over 

$300. The circuit court also dismissed the remaining charges “[u]pon motion of 

the Attorney of the Commonwealth.” Final Judgment at 3. 

On January 6, 2022, C.R. filed an Application to Vacate and Expunge 

Felony Conviction. Therein, C.R. sought expungement of the two counts of theft 

by unlawful taking over $300 to which she pleaded guilty and of the remaining 

fifteen counts of theft by unlawful taking over $300 and one count of theft by 

unlawful taking under $300 that were dismissed.
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The Commonwealth filed a response. The Commonwealth did not 

object to expungement of C.R.’s conviction upon the two counts of theft by 

unlawful taking. However, the Commonwealth argued that the dismissed sixteen

counts were ineligible for expungement pursuant to Kentucky Revised Statutes 

(KRS) 431.076(1)(b).

By order entered April 14, 2022, the circuit court granted C.R.’s 

motion and ordered expungement of the two counts of theft by unlawful taking and 

the sixteen dismissed charges. The court determined that expungement was proper 

per KRS 431.073. This appeal follows.

The Commonwealth contends that the circuit court committed 

reversible error by expunging the sixteen counts that were dismissed pursuant to 

the plea agreement. The Commonwealth argues that the circuit court is not 

statutorily authorized to expunge criminal charges that were dismissed in exchange 

for a guilty plea to other charges. The Commonwealth believes that expungement 

of charges dismissed in exchange for a guilty plea is explicitly prohibited by KRS 

431.076 and, thus, is unavailable under the plain terms of KRS 431.073.

The relevant statutory provisions are contained in KRS 431.073 and 

KRS 431.076. KRS 431.073 reads, in pertinent part:

(1) Any person who has been:

(a) Convicted of a Class D felony violation of KRS 

17.175, 186.990, 194A.505, 194B.505, 217.181,
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217.207, 217.208, 218A.140, 218A.1415, 218A.14

16, 218A.1417, 218A.1418, 218A.1423,

218A.1439, 218A.282, 218A.284, 218A.286,

218A.320, 218A.322,

218A.324, 218A.500,244.165, 286.11-057,

304.47-025, 324.990, 365.241, 434.155, 434.675,

434.850, 434.872, 511.040, 512.020, 514.030,

514.040, 514.050, 514.060, 514.065, 514.070,

514.080, 514.090, 514.100, 514.110, 514.120,

514.140, 514.150, 514.160, 516.030, 516.060,

516.090, 516.108, 517.120, 518.040, 522.040,

524.100, 525.113, 526.020, 526.030, 528.020, 528.

040, 528.050, 530.010, or 530.050;

(b) Convicted of a series of Class D felony 

violations of one (1) or more statutes enumerated 

in paragraph (a) of this subsection arising from a 

single incident;

(c) Granted a full pardon; or

(d) Convicted of a Class D felony, or an offense 

prior to January 1, 1975 which was punishable by 

not more than five (5) years’ incarceration, which 

was not a violation of KRS 189A.010, 508.032, 

or 519.055, abuse of public office, a sex offense, 

or an offense committed against a child, and did 

not result in serious bodily injury or death; or of 

multiple felony offenses eligible under this 

paragraph; may file with the court in which he or 

she was convicted an application to have the 

judgment vacated. The application shall be filed as 

a motion in the original criminal case. The person 

shall be informed of the right at the time of 

adjudication.

. . . .

(5) The court may order the judgment vacated, and if the 

judgment is vacated the court shall dismiss with 
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prejudice any charges which are eligible for 

expungement under subsection (1) of this section or KRS 

431.076 or 431.078, and, upon full payment of the fee in 

subsection (11) of this section, order expunged all 

records in the custody of the court and any records in the 

custody of any other agency or official, including law 

enforcement records[.]

And, KRS 431.076 provides, in relevant part:

(1)(a) On or after July 15, 2020, if a court enters an order 

of acquittal of criminal charges against a person, or 

enters an order dismissing with prejudice all criminal 

charges in a case against a person and not in exchange 

for a guilty plea to another charge, the court shall 

order the record expunged upon the expiration of 

thirty (30) days, unless the person objects to the 

expungement. As used in this paragraph, “criminal 

charges” shall not include a traffic infraction not 

otherwise classified as a misdemeanor. The order 

expunging the records shall not require any action by 

the person.

(b) A person who has been charged with a criminal 

offense and who has been acquitted of the charges, or 

against whom charges have been dismissed and not in 

exchange for a guilty plea to another charge, and 

whose records have not been expunged pursuant to 

paragraph (a) of this subsection, may petition the 

court in which the disposition of the charges was 

made to expunge all charges.

When a statute is clear and unambiguous and expresses legislative intent, the court 

is bound to give effect and apply that statute as written. Commonwealth v. Letner, 

678 S.W.3d 101, 103 (Ky. App. 2023). 
-10-

KRS 431.073(1) is plain and unambiguous. By its clear terms, KRS 

431.073(1) only applies to a person convicted of a certain Class D felony or a 

person granted a pardon of a Class D felony. Here, C.R. was not convicted of the 

dismissed sixteen charges and thus, may not expunge the dismissed charges under 

KRS 431.073(1). C.R., however, argues that KRS 431.073(5) permits 

expungement of the sixteen dismissed charges.

KRS 431.073(5) is also plain and unambiguous. It merely provides 

for expungement of charges “eligible for expungement under subsection (1) of this 

section or KRS 431.076 or 431.078.” We have previously concluded that C.R. is 

not eligible for expungement under subsection (1) of KRS 431.073 as she was not 

convicted of the dismissed sixteen charges. And, KRS 431.078 is inapplicable as it 

encompasses only expungement of misdemeanor charges. Therefore, our analysis 

turns to KRS 431.076. 

The terms of KRS 431.076(1)(a) and (b) are clear and unambiguous. 

Thereunder, dismissed charges are only eligible for expungement if said charges 

were not dismissed “in exchange for a guilty plea to another charge.” KRS 

431.076(1)(a) and (b). In this case, the record clearly established that C.R.’s 

dismissed charges were dismissed in exchange for C.R.’s guilty plea to two counts 

of theft by unlawful taking over $300 and in conformity with the plea agreement. 

Davis, 686 S.W.3d at 167. In a December 19, 1995, Judgment on Guilty Plea, the 
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circuit court accepted C.R.’s guilty plea to two counts of theft by unlawful taking 

over $300 and noted the Commonwealth’s recommendation to dismiss the 

remaining sixteen counts. See id. Additionally, in the Final Judgment entered 

January 23, 1996, the circuit court specifically dismissed the sixteen charges upon 

motion of the Commonwealth. See id. Based upon the clear and unambiguous 

language of KRS 431.076, we conclude that C.R.’s dismissed charges are

ineligible for expungement.

In her appellee’s brief, C.R. argues that KRS 431.073 and KRS 

431.076 are unconstitutional as violative of equal protection and the prohibition 

against arbitrary power as set forth in Kentucky Constitution Sections 2 and 3 and 

the United States Constitution Amendment 14. In particular, C.R. maintains.

An interpretation of [KRS] 431.073 that forbids 

expunging charges dismissed in exchange for a guilty 

plea violates equal protection guarantees because it 

discriminates – without a substantial or justifiable reason 

– between (i) defendants whose charges were dismissed 

as part of a guilty plea, and (ii) defendants who were 

acquitted of the same charges. For purposes of this 

comparison, we must also assume that the two defendants 

were convicted of the same series of Class D felonies 

(either through a plea or through a jury verdict). 

Expungement statutes concern matters of social or 

economic policy and must, therefore, be judged 

according to the rational basis test. Parker [v. Webster 

Co. Coal, LLC, 529 S.W.3d 759, 465 (Ky. 2017)]. 

[KRS] 431.076 explicitly permits defendants who were 

acquitted to file for expungement: “A person who has 

been charged with a criminal offense and who has been 

acquitted of the charges . . . may petition the court in 
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which the disposition of the charges was made to 

expunge all charges.” [KRS] 431.076(l)(b). Therefore, if 

a jury had acquitted [C.R.] of Counts 3-18 the

Commonwealth would have no argument that those 

charges were ineligible for expungement. However, 

“neither the federal nor state constitutions forbid . . . 

classification per se.” Vision Mining[, Inc. v. Gardner, 

364 S.W.3d 455, 465 (Ky. 2011)]. So the question 

becomes whether the distinction between acquittals and 

dismissals in exchange for a guilty plea has a reasonable 

basis.

The acquittal of a defendant does not imply that 

there was no evidence of his guilt. Rather, “it is the 

jury’s civic duty to acquit the defendant if the evidence 

does not establish his guilt beyond a reasonable doubt.” 

Barnes v. Commonwealth, 91 S.W. 3d 564, 568 (Ky 

2002). Because of the mandatory high standard at jury 

trials – beyond a reasonable doubt – there is no reason to 

assume there is less evidence of guilt on acquitted 

charges than for the defendant whose charges were 

dismissed in exchange for a guilty plea.

Because an acquittal on a charge does not equate 

to a lack of all evidence of guilt, drawing this distinction 

for purposes of expungement does not rationally relate to 

any legitimate state interest . . . .

C.R.’s brief at 11-12.

To survive C.R.’s constitutional attack upon equal protection and 

arbitrariness grounds, the classification C.R. identifies (a defendant whose charges 

were dismissed in exchange for a guilty plea and a defendant whose charges were 

dismissed due to acquittal) must be rationally related to a legitimate governmental

interest. See Ballard v. Commonwealth, 320 S.W.3d 69, 72 (Ky. 2010); 
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Commonwealth v. Meyers, 8 S.W.3d 58, 61 (Ky. App. 1999). We believe the 

classification rationally furthers a legitimate state interest. It is reasonably 

conceivable that the Kentucky legislature viewed defendants whose charges were 

dismissed in exchange for plea agreements as presenting more of a threat to public 

safety than those defendants whose charges were dismissed as a result of 

acquittals. To further public safety, records relating to charges dismissed in 

exchange for a plea agreement are preserved and not subject to expungement. In 

view of such legitimate state interest, we hold that the classification does not 

offend equal protection or the prohibition against arbitrary power.

In summary, we are of the opinion that the circuit court erroneously 

ordered expungement of C.R.’s sixteen dismissed charges. We, therefore, reverse 

the April 14, 2022, order of the Fayette Circuit Court granting C.R.’s Application 

to Vacate and Expunge Felony Conviction as to the sixteen dismissed charges. 

APPEAL NO. 2022-CA-0533-MR

On January 14, 2009, J.W. was indicted by the Fayette County Grand 

Jury upon first-degree trafficking in a controlled substance, second-degree

trafficking in a controlled substance, tampering with physical evidence, illegal 

possession of legend drug, failure of nonowner operator to maintain insurance, rear 

license not illuminated, and obstructed vision and/or windshield. The 

Commonwealth and J.W. reached a plea agreement. Under its plain terms, J.W.
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pleaded guilty to the amended charge of first-degree possession of controlled 

substance, and the Commonwealth recommended a sentence of one-year 

imprisonment. In the October 28, 2009, Judgment on Guilty Plea, the circuit court 

accepted J.W.’s guilty plea and ordered:

[T]hat [Wright] is guilty of the crime(s) of Ct. 1 Am: 

Possession of Controlled Substance 1st Degree, and notes 

of record the Commonwealth’s recommendation of a 

sentence of Ct. 1 one (1) year, Cts. 2-7 Dismissed, but 

reserves ruling on said recommendation until the 

Sentencing Hearing.

October 28, 2009, Judgment on Guilty Plea at 2. By final judgment entered 

December 16, 2009, the circuit court sentenced J.W. to one-year imprisonment and 

dismissed counts 2-7 of the indictment.

On January 14, 2022, J.W. filed an Application to Vacate and 

Expunge Felony Conviction seeking expungement of his conviction of first-degree 

possession of a controlled substance and of the dismissed charges. The 

Commonwealth filed a response. Therein, the Commonwealth did not oppose 

J.W.’s application to expunge his conviction of first-degree possession of a 

controlled substance but did oppose expungement of the dismissed charges. The 

Commonwealth argued that the charges dismissed in exchange for a guilty plea to 

another charge may not be expunged.

By order entered April 20, 2022, the circuit court granted J.W.’s 

application for expungement and expunged Wright’s conviction of first-degree 
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possession of a controlled substance and J.W.’s dismissed charges. This appeal 

follows.

Consistent with our analysis in Appeal No. 2022-CA-0531-MR, 

J.W.’s dismissed charges are ineligible for expungement under KRS 431.073(1), as 

only charges that resulted in conviction or have been pardoned may be expunged 

thereunder. KRS 431.073(5) does provide for expungement of charges “eligible 

for expungement under . . . KRS 431.076 or KRS 431.078.” To be eligible for 

expungement under KRS 431.076,

5

the charges must not have been dismissed “in 

exchange for a guilty plea to another charge.” KRS 431.076(1)(a) and (b). The 

record clearly demonstrates that J.W.’s dismissed charges were, in fact, dismissed 

in exchange for J.W.’s guilty plea to first-degree possession of a controlled 

substance. Davis, 686 S.W.3d at 167. 

In the October 28, 2009, Judgment on Guilty Plea, the circuit court 

specifically noted the Commonwealth’s recommendation that Counts 2-7 be 

dismissed, which was consistent with the terms of the plea agreement. And, in the 

December 16, 2009, final judgment, the circuit court again noted the 

Commonwealth’s recommendation to dismiss Counts 2-7 and ordered these 

charges dismissed. The record clearly demonstrates that J.W.’s dismissed charges 

5 Due to the divergent language utilized in KRS 431.078, J.W.’s dismissed misdemeanor charges 

may be eligible for expungement. However, J.W. has made no such argument in this appeal.
-16-

were dismissed in exchange for his guilty plea to first-degree possession of a 

controlled substance. See id. Therefore, we hold that J.W.’s dismissed charges 

were ineligible for expungement under KRS 431.076.

As in Appeal No. 2022-CA-0531-MR, J.W. has made an identical 

argument challenging the constitutionality of KRS 431.073 and KRS 431.076 upon 

equal protection and arbitrariness grounds. And for the reasons previously set 

forth in that appeal, we, likewise, reject J.W.’s claim that KRS 431.073 and KRS 

431.076 are unconstitutional.

In summary, we are of the opinion that the circuit court erroneously 

ordered expungement of J.W.’s dismissed charges. We, therefore, reverse the 

April 20, 2022, order granting J.W.’s Application to Vacate and Expunge Felony 

Conviction as to the dismissed charges. 

For the foregoing, we reverse and remand Appeal No. 2022-CA-0531-

MR and Appeal No. 2022-CA-0533-MR for proceedings consistent with this 

Opinion.

CALDWELL, JUDGE, CONCURS.

TAYLOR, JUDGE, CONCURS IN PART AND DISSENTS IN 

PART AND WRITES SEPARATE OPINION.

TAYLOR, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: 

As the original author of the opinion in this case, rendered on March 22, 2024, I 

concur with the majority opinion. However, I must respectfully dissent to the 
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granting of the petitions to modify this opinion, filed by appellees, Cassandra 

Richardson and Justin Wright, that substitutes initials for appellees’ respective 

names in the caption and throughout the majority opinion.

In both cases, which were considered together by this Court, appellees 

were seeking to expunge multiple counts of criminal charges that were dismissed 

by the Fayette Circuit Court in exchange for guilty pleas to other charges. In the 

case of Cassandra Richardson, fifteen felony charges of theft by unlawful taking 

over $300 and one misdemeanor charge of theft by unlawful taking under $300 

were dismissed in exchange for her guilty plea. In Justin Wright’s case, two felony 

charges including second-degree trafficking in a controlled substance and 

tampering with physical evidence, along with one misdemeanor charge and three 

motor vehicle related charges were dismissed in exchange for his guilty plea.

As noted in the majority Opinion, pursuant to KRS 431.076(1)(b) 

criminal charges dismissed in exchange for guilty pleas are not eligible for 

expungement. In other words, the criminal charges at issue in both appeals were 

not eligible for expungement and thus were not expunged based on our opinion.

Notwithstanding, the majority granted the petition to modify, 

modifying the opinion by the substitution of initials for names in both 

Richardson’s and Wright’s appeal based upon a liberal interpretation of the Rules 

of Appellate Procedure (RAP) 5(B)(2). The premise being that the opinion briefly 
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referenced the criminal charges pleaded to by both Richardson and Wright that 

were rightfully expunged under the statute.1 Those charges were not the subject 

matter of the appeal. However, reference was necessary in the opinion because 

those charges were referenced in the orders below on appeal and were briefly 

discussed by both Richardson and Wright in their respective briefs. Since those 

charges were not at issue nor addressed on appeal, the provisions of RAP 5(B)(2) 

are not applicable to this appeal, in my opinion.

The new appellate rules in Kentucky went into effect on January 1, 

2023. There were no predecessor rules in the former appellate civil rules that 

mandated the use of initials in any case by this Court. However, since 2006, by 

administrative order, the judges of this Court agreed to the use of initials in cases 

involving victims of sexual crimes and for identifying children and parents in cases 

involving the termination of parental rights. Adm. Order 2006-10. Expungement 

is not referenced in this Court’s administrative orders, nor is there any other rule or 

statute that mandates the use of initials in any Kentucky court where the 

expungement of the underlying criminal charges are prohibited by law.

1 Cassandra Richardson’s two expunged charges are briefly referenced two times on page three 

and four of the Opinion (page six and seven of the Modified Opinion) and Justin Wright’s one 

expunged charge is briefly mentioned twice on page eleven of the Opinion (page fourteen of the 

Modified Opinion).
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My position on this issue is bolstered by the recent Supreme Court 

case cited in this opinion, Commonwealth v. Davis, 686 S.W.3d 167 (Ky. 2024). 

In Davis, as in this case, the Fayette Circuit Court granted a petition to expunge 

charges that the circuit court had dismissed in exchange for a guilty plea to a 

Medicaid fraud charge. Id. at 169. Upon appeal to the Court of Appeals, the 

circuit court was affirmed by another panel of this Court. Upon discretionary 

review by the Supreme Court, the Court of Appeals was reversed based upon the 

controlling language set forth in KRS 431.076(1)(b), which was the same result 

reached in this case. In Davis, the motion for discretionary review was filed in 

April of 2023 and the opinion was rendered on February 15, 2024, both after the 

implementation of RAP. Id. The Supreme Court opinion identifies Davis by 

name, not initials, in the caption and throughout the opinion. The Supreme Court 

makes no reference to RAP 5(B)(2) in Davis, as clearly, RAP is not applicable to 

cases where the expungement of criminal charges is not permitted by applicable 

law. Id. Given that RAP 5(B)(2) is a Supreme Court Rule, I believe this Court is 

bound by Davis, by inference, that the use of initials under RAP is not applicable 

for expungement involving criminal charges dismissed in exchange for a guilty 

plea. Id.; see Supreme Court Rule 1.030(8)(a). Otherwise, any party who wants to 

trigger the rule can merely recite the word “expunge” in their pleadings on appeal 
-20-

and effectively circumvent the law to obtain expungement treatment (identifying 

parties by initials) for charges not otherwise expungable. 

In this regard the legislative intent of KRS 431.076(1)(b) is also being 

subverted by the use of initials in this case. The Supreme Court has held that 

Kentucky courts must give effect to the intent of the General Assembly. Maynes v. 

Commonwealth, 361 S.W.3d 922, 924 (Ky. 2012). That intent is derived from the 

language of the statute or in the context of the subject matter at issue. Shawnee 

Telecom Res. Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). The statute clearly 

reflects that the General Assembly did not intend for criminal charges dismissed in 

exchange for a guilty plea to be expunged, nor should a defendant receive any 

expungement benefit for said charges which has now occurred in this case.

And, under this scenario, I believe the transparency of our Court is 

jeopardized as legal participants as well as ordinary citizens are effectively denied 

the right to review accurate public court records that in this case are being 

modified to hide the identity of parties for which no compelling reason exists to 

warrant such action. This erodes public trust in the judiciary and undermines the 

integrity of the court system, in my opinion.

I recognize that the Commonwealth, the prevailing party in this 

appeal, did not object to Richardson’s or Wright’s petitions to modify this opinion. 

Notwithstanding, I would encourage the Commonwealth to seek discretionary 
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review by the Kentucky Supreme Court of this decision for the reasons stated, 

especially given the Supreme Court’s position taken in its recent decision in Davis. 

Upon granting discretionary review, I would also encourage the Supreme Court to 

revisit RAP 5(B)(2) regarding the use of initials in expungements, and frankly 

encourage its deletion from the rule. The use of initials in expungement cases by 

the Court of Appeals has no substantive basis or precedent in other rules or law, 

and there exists no compelling reason or justification for initials to be used in 

expungement appeals, in my opinion. At this time, no other Court in Kentucky is 

using initials for identification in expungement cases other than the Court of 

Appeals. Absent legislative intent, the Supreme Court should amend RAP 5(B)(2) 

accordingly. 

BRIEFS FOR APPELLANT:

Daniel J. Cameron

Attorney General

Frankfort, Kentucky

Bryan D. Morrow

Assistant Attorney General

Frankfort, Kentucky

BRIEF FOR APPELLEES:

Jennifer M. Casey

W. Preston Bell

Lexington, Kentucky