Filed: Jun. 27, 2014
Latest Update: Jun. 27, 2014
Summary: NOT TO BE PUBLISHED OPINION MOORE, Judge. The Commonwealth appeals the order of the Fayette Circuit Court granting H. S.'s motion to set aside and void her conviction. After a careful review of the record, we reverse because the offense committed by H. S. does not fall within the purview of KRS 1 218A.275(8), and we remand for reinstatement of her conviction. I. FACTUAL AND PROCEDURAL BACKGROUND H. S. stole Percocet, a controlled substance, while she worked as a nurse for the University of
Summary: NOT TO BE PUBLISHED OPINION MOORE, Judge. The Commonwealth appeals the order of the Fayette Circuit Court granting H. S.'s motion to set aside and void her conviction. After a careful review of the record, we reverse because the offense committed by H. S. does not fall within the purview of KRS 1 218A.275(8), and we remand for reinstatement of her conviction. I. FACTUAL AND PROCEDURAL BACKGROUND H. S. stole Percocet, a controlled substance, while she worked as a nurse for the University of ..
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NOT TO BE PUBLISHED
OPINION
MOORE, Judge.
The Commonwealth appeals the order of the Fayette Circuit Court granting H. S.'s motion to set aside and void her conviction. After a careful review of the record, we reverse because the offense committed by H. S. does not fall within the purview of KRS1 218A.275(8), and we remand for reinstatement of her conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
H. S. stole Percocet, a controlled substance, while she worked as a nurse for the University of Kentucky Medical Center. H. S. was indicted on the charge of theft of a controlled substance under $300, pursuant to KRS 218A.1418. She entered a guilty plea and was sentenced to serve a maximum term of two years of imprisonment. However, imposition of the sentence was suspended, and she was placed on probation for five years, subject to certain specified conditions.
H. S. completed the sentence imposed against her. She then moved to set aside and void her conviction pursuant to KRS 218A.275. The Commonwealth opposed the motion, stating as follows:
Defendant was convicted of the felony offense of Theft of A Controlled Substance pursuant to KRS 218A.1418. The statute cited by Defendant, KRS 218A.275 does not allow for this offense to be set aside or voided. Further, there is no stated argument as to any other statu[t]e or exception which would allow for this felony conviction to be expunged.
The circuit court found that, although convictions for Theft of a Controlled Substance under KRS 218A.1418 were not listed in KRS 218A.275 as a conviction that could be set aside under that statute, convictions for Theft of a Controlled Substance under KRS 218A.1418 could nevertheless be set aside and voided under KRS 218A.275. Accordingly, the circuit court granted H. S.'s motion to set aside and void her conviction.
The Commonwealth appeals, contending that: (a) the plain language of KRS 218A.275 does not provide the court authority to set aside and void a conviction for theft of a controlled substance; (b) what the legislature intended "possession of a controlled substance" to encompass is evidenced by its uses elsewhere in KRS 218A.275; and (c) a violation of KRS 218A.1418, "Theft of a Controlled Substance," is not a possession charge.
II. ANALYSIS
The Commonwealth first alleges that the plain language of KRS 218A.275 does not provide the court authority to set aside and void a conviction for theft of a controlled substance. This claim requires us to engage in a statutory construction analysis. We review the circuit court's construction of a statute de novo. See Commonwealth v. Chestnut, 250 S.W.3d 655, 659 (Ky. 2008). Pursuant to KRS 446.080,
(1) All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state.
(2) There shall be no difference in the construction of civil, penal and criminal statutes.
(3) No statute shall be construed to be retroactive, unless expressly so declared.
(4) All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning.
Further, when there appears to be a conflict between two statutes, "the specific provision take[s] precedence over the general." Commonwealth v. Phon, 17 S.W.3d 106, 107 (Ky. 2000).
Pursuant to well-settled statutory interpretations rules, courts are limited in the interpretation of the statutory words and phrases to their plain and ordinary meaning, Baker v. White, 251 Ky. 691, 65 S.W.2d 1022 (1933), and we cannot add to or subtract from the statutory language adopted by the legislature. Alderman v. Bradley, 957 S.W.2d 264, 266 (Ky. App. 1997). Where a statute is intelligible on its face, the courts are not at liberty to supply words, insert phrases, or make additions to statutory language to cure a possible omission. Commonwealth v. Harrelson, 14 S.W.3d 541, 545-546 (Ky. 2000) (citations omitted). We are not at liberty to add or subtract from the legislative enactment or discover meanings not reasonably ascertainable from the language used. Beckham v. Board of Educ., 873 S.W.2d 575, 577 (Ky. 1994). Where a statute is plainly stated and unambiguous, we are required to give language the full effect as written. Mohammad v. Commonwealth, 202 S.W.3d 589, 590 (Ky. 2006).
At the time the circuit court rendered its decision granting H. S.'s motion to set aside and void her conviction, KRS 218A.275 provided as follows:
(1) A court may request the Division of Probation and Parole to perform a risk and needs assessment for any person found guilty of possession of a controlled substance pursuant to KRS 218A.1415, 218A.1416, or 218A.1417. The assessor shall make a recommendation to the court as to whether treatment is indicated by the assessment, and, if so, the most appropriate treatment or recovery program environment. If treatment is indicated for the person, the court may order him or her to the appropriate treatment or recovery program that will effectively respond to the person's level of risk, criminal risk factors, and individual characteristics as designated by the secretary of the Cabinet for Health and Family Services where a program of treatment or recovery not to exceed one (1) year in duration may be prescribed. The person ordered to the designated treatment or recovery program shall present himself or herself for registration and initiation of the treatment or recovery program within five (5) days of the date of sentencing. If, without good cause, the person fails to appear at the designated treatment or recovery program within the specified time, or if at any time during the program of treatment or recovery prescribed, the authorized director of the treatment or recovery program finds that the person is unwilling to participate in his or her treatment, the director shall notify the sentencing court. Upon receipt of notification, the court shall cause the person to be brought before it and may continue the order of treatment, or may rescind the treatment order and impose a sentence for the possession offense. Upon discharge of the person from the treatment or recovery program by the secretary of the Cabinet for Health and Family Services, or his or her designee, prior to the expiration of the one (1) year period or upon satisfactory completion of one (1) year of treatment, the person shall be deemed finally discharged from sentence. The secretary, or his or her designee, shall notify the sentencing court of the date of such discharge from the treatment or recovery program.
(2) The secretary of the Cabinet for Health and Family Services, or his or her designee, shall inform each court of the identity and location of the treatment or recovery program to which the person is sentenced.
(3) Transportation to an inpatient facility shall be provided by order of the court when the court finds the person unable to convey himself or herself to the facility within five (5) days of sentencing by reason of physical infirmity or financial incapability.
(4) The sentencing court shall immediately notify the designated treatment or recovery program of the sentence and its effective date.
(5) The secretary for health and family services, or his or her designee, may authorize transfer of the person from the initially designated treatment or recovery program to another treatment or recovery program for therapeutic purposes. The sentencing court shall be notified of termination of treatment by the terminating treatment or recovery program and shall be notified by the secretary of the new treatment or recovery program to which the person was transferred.
(6) Responsibility for payment for treatment services rendered to persons pursuant to this section shall be as under the statutes pertaining to payment of patients and others for services rendered by the Cabinet for Health and Family Services, unless the person and the treatment or recovery program shall arrange otherwise.
(7) None of the provisions of this section shall be deemed to preclude the court from exercising its usual discretion with regard to ordering probation or conditional discharge.
(8) Except as provided in subsection (12) of this section, in the case of any person who has been convicted for the first time of possession of controlled substances, the court may set aside and void the conviction upon satisfactory completion of treatment, probation, or other sentence, and issue to the person a certificate to that effect. A conviction voided under this subsection shall not be deemed a first offense for purposes of this chapter or deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Voiding of a conviction under this subsection and dismissal may occur only once with respect to any person.
(9) If the court voids a conviction under this section, the court shall order the sealing of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, except as provided in KRS 27A.099. The court shall order the sealing on a form provided by the Administrative Office of the Courts. Every agency with records relating to the arrest, charge, or other matters arising out of the arrest or charge that is ordered to seal records, shall certify to the court within sixty (60) days of the entry of the order that the required sealing action has been completed.
(10) After the sealing of the record, the proceedings in the matter shall not be used against the defendant except for the purposes of determining the person's eligibility to have his or her conviction voided under subsection (8) of this section. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record has been sealed shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
(11) Inspection of the sealed records may thereafter be permitted by the court pursuant to KRS 27A.099 or upon a motion by the person who is the subject of the records and only to those persons named in the motion or upon a motion of the prosecutor to verify a defendant's eligibility to have his or her conviction voided under subsection (8) of this section.
(12) A person who has previously had a charge of possession of controlled substances dismissed after completion of a deferred prosecution under KRS 218A.14151 shall not be eligible for voiding of conviction under this section.
In granting H. S.'s motion to void her conviction, the circuit court found as follows:
KRS 218A.275 allows for the setting aside and voiding of a first time conviction of possession of a controlled substance. KRS 218A.275(1) includes language that references KRS 218A.1415, 218A.1416, and 218A.1417. However, the Court finds that the language does not limit procedures for voiding a conviction which is found in KRS 218A.275. Specifically, the Court finds that a conviction under KRS 218A.1418, Theft of a Controlled Substance, may be set aside and voided under KRS 218A.275.
The circuit court reasoned that "KRS 218A.275(8) states plainly that a court may set aside and void a first time conviction of possession of a controlled substance. It does not point to any specific statute upon which the conviction must be predicated." The court also noted that "[t]he omission in KRS 218A.275(8) of the limitation found in KRS 218A.275(1) leads to the conclusion that the legislature did so intentionally. Therefore, it cannot be read into the statute that KRS 218A.275(8)-(12) can only be applied to convictions pursuant to KRS 218A.1415, 218A.1416, and 218A.1417."
However, pursuant to KRS 218A.275(8), a court may only set aside and void a conviction of a "person who has been convicted for the first time of possession of controlled substances." H. S. was not convicted of possession of controlled substances — she was convicted of theft of a controlled substance. Thus, KRS 218A.275(8) does not apply to her conviction, and the circuit court improperly interpreted KRS 218A.275(8) and applied it to H. S.'s case when the court failed to give the words and phrases in that statute their plain, ordinary meaning. Consequently, the Fayette Circuit Court erred in granting H. S.'s motion to set aside and void her conviction for theft of a controlled substance.2
III. CONCLUSION
We pause to note that H. S. is to be applauded for turning her life around and desiring to return to her profession. Nonetheless, it will be up to the General Assembly to pass legislation which allows for her expungement. The Court's role is to interpret statutes, based on the plain language enacted by the General Assembly. Accordingly, we cannot grant her the relief she seeks.
Therefore, the order of the Fayette Circuit Court is reversed, and this case is remanded for reinstatement of H. S.'s conviction.
VANMETER, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS.
