Attorney General Beshear Appeals Expungement Made Under New State Law

May 2, 2017

Credit Thinkstock

Attorney General Andy Beshear’s office has appealed a judge’s ruling that wiped decades-old convictions from a Kentuckian’s criminal record, arguing they aren’t eligible under the state’s new felony expungement law.

The case hinges on whether crimes committed over a series of days are considered to be part of the same “incident” and are thus all eligible for expungement.

The new law allows people to have certain class D felonies cleared if — after completing their sentences — they stay out of trouble for five years and pay a $500 fee.

After the law took effect last July, Lexington resident Dennis Vowels applied for an expungement of five theft and burglary convictions, all felonies, that took place over four days in 1978 when he was a 19-year-old in Owensboro.

Daviess Circuit Court Judge Joe Castlen granted the request in October, recognizing that the ruling would likely be appealed and a higher court would give a “more definitive answer.”

“I’d rather construe the provisions more liberally than conservatively to effect the purpose of the statute,” Castlen said during his ruling from the bench last year.

But in a brief filed with the Kentucky Court of Appeals, Beshear’s office argued the convictions aren’t eligible because they took place over a series of days.

“Vowels’ five charges were based on five different incidents,” assistant attorney general Emily Bedelle Lucas wrote. “They occurred on different days, they were against different victims, and they involved different property.”The legislature passed the felony expungement bill during last year’s legislative session and it was signed into law by Gov. Matt Bevin, who was a vocal advocate for the policy.

The Kentucky Chamber of Commerce and ACLU of Kentucky both supported the bill as a way to get people with criminal records back to work and reintegrate them into society.

Vowels pleaded guilty to the three auto thefts and two third-degree burglaries, which he committed with two friends 39 years ago.

“I just got in with the wrong group of people as a young, stupid teenager — not that I’m shunning any responsibility, I’m not,” Vowels said in an interview on Monday.

He spent 54 days in jail, got shock probation and reimbursed for damages to one of the stolen cars after a civil suit. He applied and Gov. Martha Layne Collins restored his voting rights in 1986.

Now 57, a long-haul truck driver with four adult children, Vowels said he’s been turned away from several jobs and promotions over the years because of his record, but hasn’t had more than a traffic violation since the 1978 convictions.

He said the system is unforgiving to young people in similar situations.

“You don’t get the good jobs, you’re lucky to get a job at all,” he said. “I understand how they wind up back in the system. Because it’s like the system’s stacked against them. And they don’t have the opportunities that everybody else does because they have made a mistake.”

‘I don’t want this on my record when I die’

Kentucky’s new law allows judges to clear a series of Class D felony violations if they arise “from a single incident,” but doesn’t define what counts as an incident.

Vowels’ attorney, public defender Robert Yang, called the issue a “case of first impression,” and argued the trial judge’s ruling is within the bounds of the new law.

“At least in Daviess County, the circuit court believes that, as we do, that if there are multiple crimes they ought to be eligible for expungement,” Yang said.

Yang argues that an “incident” can include related events that occur over the course of four days and that Vowels’ case counts as a “continuing course of conduct.”

Because Beshear’s office appealed Vowels’ expungement, the case now heads to the Kentucky Court of Appeals.

Vowels said he would rest easier if the ruling is upheld.

“I don’t want this on my record when I die,” he said.