RENDERED: JANUARY 22, 2021; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0055-MR

COMMONWEALTH OF KENTUCKY APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE ERNESTO M. SCORSONE, JUDGE

ACTION NO. 09-CR-01663-002

REBECCA DAWN HAMPTON APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, 

JUDGES.

TAYLOR, JUDGE: Commonwealth of Kentucky brings this appeal from a 

December 12, 2019, order of the Fayette Circuit Court granting Rebecca Dawn 

Hampton’s application to vacate and expunge her prior felony conviction. We 

affirm.

On November 4, 2009, Hampton was indicted by a Fayette County 

Grand Jury of trafficking in controlled substance in or near school (within 1,000 
-2-

yards of a school - Kentucky Revised Statutes (KRS) 218A.1411).

1

 Pursuant to a

plea agreement with the Commonwealth, Hampton pleaded guilty to trafficking in 

controlled substance in or near school (within 1,000 yards of a school). There is no 

dispute this offense was a Class D felony. KRS 218A.1411. By Final Judgment 

entered March 1, 2010, Hampton was sentenced to one year of imprisonment, 

which was probated for three years.

On August 29, 2019, Hampton filed an Application to Vacate and 

Expunge Felony Conviction in the Fayette Circuit Court. Hampton argued that her 

felony conviction was eligible for expungement under KRS 431.073.

2

 The circuit 

court ultimately agreed. By a December 12, 2019, order, the circuit court granted 

Hampton’s application to vacate and expunge her felony conviction. This appeal 

follows.

The Commonwealth claims the circuit court erroneously granted 

Hampton’s motion to expunge her felony conviction by improperly interpreting 

KRS 431.073(1)(d). More particularly, the Commonwealth believes that a proper 

interpretation of KRS 431.073(1)(d) would exclude expungement of Hampton’s 

 

1 Kentucky Revised Statutes (KRS) 218A.1411 was amended in June 2011 to shrink the 

enhancement zone around schools and classrooms from 1,000 yards to 1,000 feet. 

2 KRS 431.073 was amended effective June 27, 2019.
-3-

Class D felony conviction. The Commonwealth argues that the circuit court’s 

interpretation of KRS 431.073(1)(d) was too broad. 

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.

KRS 431.073 sets forth statutory law relating to expungement of 

felony convictions. Resolution of this appeal is dependent upon a proper 

interpretation of KRS 431.073(1), which provides:

(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, 217.207, 217.208, 

218A.140, 218A.1415, 218A.1416, 

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-
-4-

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 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.

The Commonwealth urges this Court to narrowly interpret KRS 

431.073(1)(d) as applicable to only those persons convicted of a Class D felony 
-5-

prior to January 1, 1975. Under this narrow interpretation, Hampton’s Class D 

felony would not qualify for expungement. The Commonwealth’s proposed 

interpretation would necessarily require eliminating the conjunction “or” from the 

beginning of Section (1)(d) of the statute – “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[.]” KRS 431.073(1)(d) (emphasis added). Respectfully, we 

must reject the Commonwealth’s interpretation as contrary to the plain meaning of 

KRS 431.073(1)(d) and also as contrary to legislative intent. 

The pivotal language of KRS 431.073(1)(d) reads “[a]ny person who 

has been: 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 . . . may file 

. . . an application” for expungement of said offense. The common definition of 

“or” is a “word to indicate an alternative.” MERRIAM-WEBSTER DICTIONARY (10th

ed. 2002). Applying this common definition of the word “or” to the above pivotal 

language in KRS 431.073(1)(d), we interpret the statute as clearly creating two 

classes of persons eligible to apply for expungement: a person convicted of a 

Class D felony, or a person convicted of an offense prior to January 1, 1975, which 

was punishable by not more than five-years’ incarceration.

Additionally, our interpretation of KRS 431.073(1)(d) comports with 

legislative intent. Section (1)(d) and Section (4) of KRS 431.073 were 
-6-

concomitantly enacted by the General Assembly on June 27, 2019. KRS 

431.073(4) provides:

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

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.

As gleaned from above, KRS 431.073(4) sets forth additional 

requirements that an individual must meet to be entitled to expungement under 

KRS 431.073(1)(d). These additional requirements are stricter than the 

requirements for individuals seeking expungement under KRS 431.073(1)(a)-(c). 

In enacting these stricter requirements, the General Assembly recognized that a

more expansive class of individuals would be eligible to apply for expungement

under KRS 431.073(1)(d). Thus, our broader interpretation of KRS 431.073(1)(d) 

comports with the legislative intent as gleaned from the concomitant enactment of 

KRS 431.073(4).

We view any remaining contentions of error to be moot or without 

merit. In sum, we are of the opinion that the circuit court properly granted 

Hampton’s application to expunge her prior Class D felony conviction. 

For the foregoing reasons, the order of the Fayette Circuit Court is 

affirmed.
-8-

ALL CONCUR.

BRIEF FOR APPELLANT:

Daniel Cameron

Attorney General of Kentucky

Lindsay Bishop-Hore

Special Assistant Attorney General

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Ted Houlehan

Lexington, Kentucky