RENDERED: MARCH 1, 2024; 10:00 A.M. TO BE PUBLISHED 

# Commonwealth of Kentucky
Court of Appeals

NO. 2022

- CA

- 0368

- MR

BLAKE P. WALKER APPELLANT

v. APPEAL FROM ADAIR CIRCUIT COURT

HONORABLE DAVID L. WILLIAMS, SPECIAL JUDGE

ACTION NO. 03

- CR

- 00008

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

**   **  **

BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Blake Walker has appealed from the order of the Adair

Circuit Court denying his application to vacate and expunge his felony conviction

for the murder of his parents after he received a commutation and full

gubernatorial pardon of his life sentence in 2019 . We affirm.

For the factual and procedural background of the underlying criminal

action , we shall rely upon this Court’s 2008 opinion in Walker’s post

- conviction- 2

-

appeals affirming the orders denying his Kentucky Rules of Civil Procedure (CR)

60.02 and K entucky Rules of Criminal Procedure (RCr) 11.42 motions:

When Walker was sixteen years old he shot and killed his mother and father. His case was transferred from juvenile court and he was indicted as an adult. The Commonwealth gave notice that it inten ded to seek the death penalty. Walker ’ s counsel then filed numerous motions to preclude the death penalty due to his age, as being in violation of the Kentucky and United States Constitution, as being in violation of international law, and as being dispro portionate based upon the specific facts of this case.

. . . Following a hearing the trial court denied Walker ’ s motions relative to the death penalty. Within weeks of this hearing the Commonwealth made a plea offer to Walker which he accepted. On July 10, 2003, Walker, based on the advice of counsel and following a thorough Boykin [ 1 ] colloquy, pleaded guilty
to two counts of murder. He was formally sentenced on August 26, 2003, to life without the possibility of parole for twenty

- five years.

Walker v. Commonwealth

, Nos. 2006

- CA

- 001247

- MR and 2006

- CA

- 002074

- MR

, 2008 WL 1991612, at *1 (Ky. App. May 9, 2008).

On December 6, 2019, then

- Governor Bevin commuted Walker’s life

sentence and , without a request to do so, granted him a full and unconditional

pardon, thereby returning to him all rights and privileges of a citizen of the

Commonwealth.

1 Boykin v. Alabama , 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).- 3

- In July 2020, Walke r filed an application to vacate and expunge his

felony conviction s pursuant to Kentucky Revised Statutes ( KRS ) 431.073 based

upon the full pardon. The Commonwealth objected due to the serious nature of the

charges, which, it stated, involved the executio n

- style murder of his parents. The

circuit court held a hearing via Z oom on December 18, 2020, where it heard

testimony from Walker, his uncle, his employer, his therapist, and law enforcement

officers involved with the murder investigation. Thereafter, the court ordered the

parties to brief the issue of the statutory requirement for granting expungement

when a full pardon has been granted. In his filing, Walker argued that

expungement was mandatory as long as he met the eligibility requirement s and his

application was not grossly incomplete (KRS 431.073(2)) and that the circuit court

was not permitted to apply a balancing test because his felony conviction had been

fully pardoned. In response, the Commonwealth dispute d Walker’s argument that

expungement wa s mandatory, noting the use of the permissive word “may” in KRS

431.073(5) (“ The court may order the judgment vacated [.]”) . And it pointed out

that while the court was not required to consider the various factors found in KRS

431.073(4)(a), the court was not prohibited from doing so when exercising its

discretion.

The court held a second Z oom hearing on October 13, 2021, during

which the parties presented their respective legal arguments

. Ultimately

, the court- 4

-

concluded expungement was in its sound discretion and, b y order entered March 4,

2022, the circuit court denied Walker’s application

. This appeal now follows.

Our first considerat ion is whether the circuit court properly interpreted

KRS 431.073 in concluding that whether to grant the application based on a full

pardon was within its discretion and in using the statutory factors for applications

filed under KRS 431.073(1)(d) :

It is well

- established that interpretation of a statute presents an issue of law for the Court, and our review proceeds de novo

. Spencer Cty. Pres., Inc. v. Beacon Hill, LLC , 214 S.W.3d 327, 329 (Ky. App. 2007). When interpreting an ambiguous statute, “[o]ur duty

. . . is to ascertain and give effect to the intent of the general assembly.” Id . at 329. In so doing, words are to be afforded their ordinary or plain meaning unless same would lead to an absurd result. Cosby v. Commonwealth

, 147 S.W.3d 56, 59 (Ky . 2004); Ky. Occupational Safety and Health Review Comm ’ n v. Estill Cty. Fiscal Court

, 503 S.W.3d 924, 929 (Ky. 2016). And, a statute is to be interpreted by considering it as a whole. Cosby , 147 S.W.3d at 58. Our review proceeds accordingly.

Commonwea lth v. Hampton , 618 S.W.3d 511, 512 (Ky. App. 2021).

We shall first set out the applicable portions of the 2019 version of

KRS 431.073 in effect when Walker filed his petition : 2

(1) Any person who has been:

(a) Convicted of a Class D felony violation of [ list of statutes omitted ];

2 The latest version went into effect on June 29, 2023.- 5

- (b) Convicted of a series of Class D felony violations of one (1) or more statutes enumerated in subsection (1) (a) of this section 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 again st a child, and did not result in serious bodily injury or death; or of a series of 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.

(2) (a) A verified application to have the judgment vacated under this section shall be filed no sooner than five (5) years af ter the completion of the person ’ s sentence, or five (5) years after the successful completion of the person ’ s probation or parole, whichever occurs later.

(b) Upon the payment of the filing fee and the filing of the application, the Circuit Court clerk s hall serve a notice of filing upon the office of the Commonwealth ’ s attorney or county attorney that prosecuted the case and the county attorney of the county where the judgment was entered. The office of the Commonwealth ’ s attorney- 6

- or county attorney tha t prosecuted the case shall file a response within sixty (60) days after being served with the notice of filing. That time period may be extended for good cause, but the hearing on the application to vacate the judgment shall occur no later than one hundr ed twenty (120) days following the filing of the application. The inability to determine the location of the crime victim shall constitute good cause for an extension of time. No hearing upon the merits of the application shall be scheduled until the Com monwealth ’ s response has been filed, or if no response is received, no later than one hundred twenty (120) days after the filing of the application.

(c) In any case in which the Commonwealth objects that the application is grossly incomplete, the court sh all order the person or agency originating the application to supplement the application.

(3) Upon the filing of the Commonwealth ’ s response to an application, or if no response is received, no later than one hundred twenty (120) days after the filing of the application, the court shall set a date for a hearing and the Circuit Court clerk shall notify the office of the Commonwealth ’ s attorney or county attorney that prosecuted the case. The office of the Commonwealth ’ s attorney or county attorney that pro secuted the case shall notify the victim of the crime, if there was an identified victim. The Commonwealth ’ s attorney or county attorney shall be authorized to obtain without payment of any fee information from the Transportation Cabinet regarding the cri me victim ’ s address on file regarding any vehicle operator ’ s license issued to that person.

(4) (a) In an application pursuant to subsection- 7

- (1)(d) of this section, upon the filing of the Commonwealth ’ s response objecting to the vacating of a judgment and expungement of a record, the court shall schedule a hearing within one hundred twenty (120) days of the Commonwealth ’ s response. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. At the hearing at which the applicant or his or her attorney must be present, the applicant must prove by clear and convincing evidence that:

1. Vacating the judgment and expunging the record is consistent with the welfare and safety of the public;

2. The action is supported by his or her behavior since the conviction or convictions, as evidenced that he or she has been active in rehabilitative activities in prison and is living a law

- abiding life since release;

3. The vacation and expungement is warranted by the interests of justice; and

4. Any other matter deemed appropriate or necessary by the court to make a determination regarding the petition for expungement is met.

(b) At the hearing, the applicant may testify as to the specific adverse consequence s he or she may be subject to if the application is denied. The court may hear testimony of- 8

- witnesses and any other matter the court deems proper and relevant to its determination regarding the application. The Commonwealth may present proof of any extra ordinary circumstances that exist to deny the application. A victim of any offense listed in the application shall have an opportunity to be heard at any hearing held under this section.

(c) If the court determines that circumstances warrant vacation and expungement and that the harm otherwise resulting to the applicant clearly outweighs the public interest in the criminal history record information being publicly available, then the original conviction or convictions shall be vacated and the records shal l be expunged. The order of expungement shall not preclude a prosecutor ’ s office from retaining a nonpublic record for law enforcement purposes only.

(5) The court may order the judgment vacated, and if the judgment is vacated the court shall dismiss wit h 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, if the court finds that:

(a) The person had not, after [ June 27, 2019 ] , had a felony conviction vacated and the record expunged pursuant to this section;

(b) The p erson had not in the five (5) years prior to the filing of the application to have- 9

- the judgment vacated been convicted of a felony or a misdemeanor;

(c) No proceeding concerning a felony or misdemeanor is pending or being instituted against the person; a nd

(d) For an application pursuant to subsection (1)(d) of this section, the person has been rehabilitated and poses no significant threat of recidivism.

In the present case, the circuit court recognized that Walker filed his

motion under KRS 431.073(1)(c), meaning that KRS 431.073(4)(a) did not apply

to him as that subsection only pertained to application s filed under KRS

431.073(1)(d). This Court address ed the interplay of these subsections in

Hampton , 618 S.W.3d at 514 , noting that the additional requirements found in

KRS 431.073(4) “ are stricter than the requirements for individuals seeking

expungement under KRS 431.073(1)(a)

- (c) ” and that “ a more expan sive class of

individuals would be eligible to apply for expungement under KRS

431.073(1)(d). ” Here, despite being stricter requirements , the circuit court opted to

consider these factors, stating:

None of these findings are required, however, according to the plain language of the statute, when the person applying for expungement has been granted an unconditional pardon. Because there is no explicit statutory standard other than what is stated above, this Court has elected to use the provisions of KRS 4 31.07[3](4) as guidelines in evaluating this request, even though their application is not mandated. It is- 10

- important to point out that nothing in KRS 431.073 prohibits this Court from considering such factors when exercising its discretion in ruling on th e expungement. Such factors would seem to be important to the Court in considering a petition for expungement and in exercising the Court’s discretion in issuing a ruling on an expungement petition.

Walker argues that the General Assembly intended expun gement to be

a pro forma process for applications made under KRS 431.073(1)(a)

- (c) and that

the circuit court violated the separation of powers doctrine by considering the

factors in KRS 431.073(4). We disagree with both arguments

. KRS 431.073(5)

provides that the circuit court “may order the judgment vacated,” indicating the

permissive nature of the decision rather than a mandatory one based upon the

general statutory definitions set forth in KRS 446.010. Subsection (26) defines th e
word “may” as permissive while subsection (39) defines “shall” as mandatory. See

also Kingdomware Techs., Inc. v. United States , 579 U.S. 162, 171, 136 S. Ct.

1969, 1977, 195 L. Ed. 2d 334 (2016) (“Unlike the word ‘may,’ which implies

discretion, the wo rd ‘shall’ usually connotes a requirement.”). The General

Assembly would not have used discretionary language if it had intended the

process to be pro forma

.

A s to the separation of powers argument, w hile the statute require s a

court to consider the fa ctors in applications filed under KRS 431.073(1)(d)

, addressing Class D felony convictions

, nowhere does it prohibit a court from- 11

-

considering those or any other factors when exercising its discretion under the

other three subsections . The circuit court di d not amend or rewrite the statute in

choosing to consider these factors , and it did so solely to provide a basis for its

decision. And, in our view, these are exactly the type of factors a court would

want to consider in exercising its discretion as they broadly address the protection

of the general public, the interests of justice, and the applicant’s behavior post

conviction

. Therefore, we hold that the circuit court did not commit any error in its

interpretation of KRS 431.073 or in its consideration of the criteria for application s

filed under KRS 431.073(1)(d).

For our second consideration

, and based upon our holding above, we

must now determine whether the circuit court abused its discretion in denying

Walker’s application. “The test for abuse o f discretion is whether the trial judge ’ s

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.” Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999). We find

no abuse of discretion in the circuit court’s decision.

T he circuit court weighed the evidence presented in the application

and at the hearing

, and it appropriately considered the KRS 431.073(4)(a) factors

in exercising its discretion as well as the balancing test set forth in KRS

431.073(4)(c) (“ the harm otherwise resulting to the applicant clearly outweighs the- 12

-

public interest in the criminal history record information being publicly

available ”) :

This Court is in agreement with Walk er that his

behavior since the convictions [has] shown him to be nothing other than a law

- abiding citizen. However, this Court has more serious concerns regarding whether vacating the judgment and expunging the record is consistent with the welfare and sa fety of the public and the interests of justice. Walker was convicted of felony Murder of both of his parents. Although these [] felonies are eligible for expungement pursuant to KRS 431.073(1)(c), this Court believes the seriousness of the offenses would not justify expungement from [] Walker’s record. Expungement is not warranted by the interests of justice in this case. Although pardoned, Walker was convicted of very serious crimes. Any harm to him by having these convictions on his record does not o utweigh the public interest in the criminal history record being publicly available.

We recognize that the circuit court could very well have reached the opposite

conclusion and given greater weight to Walker’s good behavior since his

conviction and, late r, his pardon . However, it chose to give greater weight to the

seriousness of Walker’s crime

, and it determined that the public had a greater

interest in having access to his criminal record. We find no abuse of discretion.

For the foregoing reasons, th e order of the Adair Circuit Court

denying Walker’s application for expungement is affirmed.

ALL CONCUR.- 13

-

BRIEF S FOR APPELLANT:

J. Vincent Aprile II Louisville, Kentucky BRIEF FOR APPELLEE:

Daniel Cameron Attorney General of Kentucky

Kristin L. Conder Assistant Attorney General Frankfort, Kentucky