Criminal: COM. V. SHOUSE (1/13/2006; COA)

COM. V. SHOUSE
CRIMINAL – Expungement (pretrial diversion)

2005-CA-000071
PUBLISHED  AFFIRMING
POTTER
DATE:  1/13/2006

A defendant who has successfully completed a felony diversion program may have the records of his case expunged under KRS 431.076.

Note:  I guess the Commonwealth did not read the plea agreement permitting expungement when the offer was made.  In any event, this decision should not be interpreted as guaranteeing expungement in every diverted case.  As the offer of diversion is completely discretionary with the government, they simply have to preclude the possibility of expungement at the time of the offer in order to avoid the above result.

TC properly emphasized the fact that both the diversion agreement and the order approving the diversion program directly addressed the matter, advising the defendant "that upon successful completion of the diversion he may petition the court for expungement of the record." 

CA rejected the Commonwealth’s argument that "dismissed as diverted" does not equate to "dismissed with prejudice".  Further, CA found the legislative goal would be thwarted to a significant degree if a successful participant’s record were readily available to the public through court records.