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

60.02 and Kentucky 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 intended 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 disproportionate 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). 
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In July 2020, Walker filed an application to vacate and expunge his 

felony convictions 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 execution-style murder of his parents. The 

circuit court held a hearing via Zoom 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 requirements 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 disputed Walker’s argument that 

expungement was 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 Zoom hearing on October 13, 2021, during 

which the parties presented their respective legal arguments. Ultimately, the court 
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concluded expungement was in its sound discretion and, by order entered March 4, 

2022, the circuit court denied Walker’s application. This appeal now follows.

Our first consideration 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.

Commonwealth 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.
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(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 against 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 after 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 shall 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 
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or county attorney that 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 hundred 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 

Commonwealth’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 shall 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 prosecuted 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 crime victim’s address on file regarding 

any vehicle operator’s license issued to that person.

(4) (a) In an application pursuant to subsection
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(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 consequences he 

or she may be subject to if the application is 

denied. The court may hear testimony of 
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witnesses and any other matter the court 

deems proper and relevant to its 

determination regarding the application. 

The Commonwealth may present proof of 

any extraordinary 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 shall 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 with 

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 person had not in the five (5) years 

prior to the filing of the application to have 
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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; and

(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 applications filed under KRS 

431.073(1)(d). This Court addressed 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 expansive 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 

431.07[3](4) as guidelines in evaluating this request, 

even though their application is not mandated. It is 
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important to point out that nothing in KRS 431.073 

prohibits this Court from considering such factors when 

exercising its discretion in ruling on the 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 expungement 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 the 

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 word ‘shall’ usually connotes a requirement.”). The General 

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

process to be pro forma. 

As to the separation of powers argument, while the statute requires a 

court to consider the factors in applications filed under KRS 431.073(1)(d), 

addressing Class D felony convictions, nowhere does it prohibit a court from 
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considering those or any other factors when exercising its discretion under the 

other three subsections. The circuit court did 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 postconviction. 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 applications 

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 of 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.

The 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 
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public interest in the criminal history record information being publicly 

available”):

This Court is in agreement with Walker 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 safety 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 outweigh 

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, later, 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, the order of the Adair Circuit Court 

denying Walker’s application for expungement is affirmed.

ALL CONCUR.
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BRIEFS 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