327 S.W.3d 519
Ky. Ct. App.2010Background
- Harscher was convicted in 2000 for making a false statement to obtain a credit card (Class D felony) with a one-year sentence probated for five years.
- Governor Fletcher issued a full pardon for the 2000 conviction in December 2007 restoring civil rights.
- In March 2009 Harscher moved to expunge his record under KRS 431.076; the Fayette Circuit Court denied the motion in March 2009.
- The trial court held KRS 431.078 applies to misdemeanors and does not permit expungement of felonies; pardon does not erase the fact of conviction.
- Harscher appealed asserting (a) pardon automatically entitles expungement and (b) the wrong statute was applied (KRS 431.078 instead of KRS 431.076).
- The Kentucky Court of Appeals affirmed, holding a pardon does not erase guilt or the fact of conviction and does not automatically entitle expungement; expungement statutes’ limits apply regardless of pardon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a pardon entitle expungement of records automatically? | Harscher: pardon wipes guilt and erases conviction. | Harscher: record should be expunged post-pardon. | No automatic expungement effect from pardon. |
| Was expungement correctly denied under the proper statute? | Should apply KRS 431.076 due to dismissal with prejudice post-pardon. | Expungement barred for felonies; KRS 431.078 inapplicable to felonies; pardon does not erase conviction. | Court correctly denied expungement; either statute would apply to the denial. |
Key Cases Cited
- Anderson v. Commonwealth, 107 S.W.3d 193 (Ky. 2003) (defines pardon as nullifying punishment and restoring civil rights, but not erasing conviction facts)
- Fletcher v. Graham, 192 S.W.3d 350 (Ky. 2006) (pardon relieves punishment but collateral consequences may remain)
- Nelson v. Commonwealth, 109 S.W.337 (Ky. 1908) (pardon cannot erase the act; fact of offense remains)
- Jackson v. Rose, 3 S.W.2d 641 (Ky. 1928) (pardon is binding and may require dismissal; not controlling expungement)
- State v. Cope, 676 N.E.2d 141 (Ohio Ct. App. 1996) (different jurisdictions; expungement where pardoned offenses involved varies)