MICHAEL DALE HENNING V. COMMONWEALTH OF KENTUCKY
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RENDERED: February 12, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000208-MR
MICHAEL DALE HENNING
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KEN G. COREY, JUDGE
ACTION NO. 94-CR-508
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; GUIDUGLI and MILLER, Judges.
GUDGEL, CHIEF JUDGE:
This is an appeal from an order entered by
the Jefferson Circuit Court which denied appellant Michael Dale
Henning’s motion to expunge his criminal record relating to a
murder prosecution.
On appeal, appellant contends that the trial
court abused its discretion by denying his motion.
reasons stated hereafter, we disagree.
For the
Hence, we affirm.
On March 2, 1994, appellant was indicted for murder and
Warren Baker was indicted for criminal facilitation to murder in
connection with the February 26, 1994, death of Kevin S. Walker.
Separate trials were conducted and Baker agreed to testify
against appellant. The Commonwealth adduced evidence by which it
attempted to prove that during an argument outside a bar,
appellant acquired a gun from Baker and immediately thereafter
shot Mr. Walker in the head at close range.
Appellant, however,
claimed that he observed Baker pointing a gun at Walker’s head,
that he grabbed for the gun, and that the gun discharged.
The
jury returned a not guilty verdict as to the murder charge and as
to all lesser included homicide charges.
On October 25, 1994,
the circuit court entered an order dismissing the murder charge
against appellant.
Baker subsequently pled guilty to
first-degree wanton endangerment and was sentenced to five years’
imprisonment.
In April 1997, appellant filed a motion requesting the
court to “expunge all records in state government control,”
maintaining that a recently enacted statute, KRS 431.076, and his
acquittal entitled him to such relief.
The circuit court denied
the motion by an order entered on April 17, 1997.
The court
stated in its order that appellant “was found not guilty in
October, 1994.
The motion [to expunge] was filed April 14, 1997.
Based upon the evidence presented at the trial of the defendant’s
past criminal history, coupled with the fact that he is now in
the penitentiary, and the expungement being discretionary with
the Court, the motion is denied.”
April 17, 1997, order.
Appellant did not appeal the
Instead, he filed a subsequent motion in
January 1998 “to expunge all records in governmental control in
regards to Indictment number 94-CR-0508.”
Appellant reiterated
in his second motion that he was acquitted of the charges
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relating to the murder indictment, that the records regarding the
charge were in the custody of the correctional system, and that
the records will have “an adverse effect on [his] possibility of
Parole, Community Custody, Furlough and even more so on his
possibility of obtaining gainful employment upon his eventual
release from incarceration . . . .”
Once again, the court denied
appellant’s motion, stating as follows:
The defendant was in fact acquitted;
however, the evidence was clear that his
culpability herein was significantly more
than minimal. It would in fact be apparent
that Henning was not the “trigger man,” but
his actions both before, during and after the
murder are not those of the type of
individual envisioned by the legislature
under the above cited statute. The fact that
the motion comes from the penitentiary in
regard to other sentences now being served is
further evidence in favor of denial.
This appeal followed.
Based upon our review of the record, we are of the
opinion that the court’s order must be affirmed, but for reasons
different from those set forth in the order.
See Jarvis v.
Commonwealth, Ky., 960 S.W.2d 466 (1998).
It is settled that “a fact or matter distinctly put in
issue and directly determined by a court of competent
jurisdiction cannot afterwards be disputed between the same
parties.”
(1961).
Barnett v. Commonwealth, Ky., 348 S.W.2d 834, 835
This rule of res judicata is applicable to criminal
cases and serves two purposes: “the one, public policy and
necessity, which makes it to the interest of the state that there
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should be an end to litigation; the other, the hardship on the
individual that he should be vexed twice for the same cause.”
Id.
Further, the doctrine of res judicata applies to final
judgments rendered on the merits.
Davis v. Powell’s Valley Water
Dist., Ky. App., 920 S.W.2d 75 (1995).
CR 54.01, which is applicable to criminal proceedings
pursuant to RCr 13.04, defines a final order as a “final order
adjudicating all the rights of all parties in an action or
proceeding.”
In Commonwealth v. Taylor, Ky., 945 S.W.2d 420, 422
(1997), our supreme court stated that “the fundamental rule is
that for an order to be final and appealable, it must adjudicate
all claims of the parties at the time the order was entered.”
Here, at the time appellant filed his first motion to
expunge in April 1997, there was no pending claim in the
proceeding because the court had entered an order dismissing the
murder charge.
Thus, the court’s order of April 17, 1997,
denying appellant’s first motion to expunge his record, clearly
served to finally dispose of all claims pending before the court
at that time.
It follows, therefore, that the April 17, 1997,
order was a final and appealable order.
Indeed, our conclusion
is consistent with the supreme court’s decision in Gilliam v.
Commonwealth, Ky., 652 S.W.2d 856 (1983), in which it held that
an order denying a criminal defendant’s motion for a trial
transcript was a final order because the order disposed of all
the claims pending before the trial court at the time of its
entry.
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Appellant was entitled to appeal from the April 17,
1997, order, but failed to do so.
Instead, appellant attempted
to get a second bite of the apple by filing a second motion to
expunge by which he sought to have the court determine the
identical claim previously adjudicated by the April 17, 1997,
order.
Moreover, appellant set forth no grounds in his second
motion which were not, or could not have been, asserted in his
first motion.
Further, the court’s reasons for denying both of
appellant’s motions were essentially identical.
The April 17,
1997, order was a final adjudication on the merits of appellant’s
statutory claim for expungement of his records.
Appellant failed
to appeal from that order and he was precluded from again
litigating the identical issue by filing a second motion to
expunge.
See Commonwealth v. Hicks, Ky., 869 S.W.2d 35 (1994).
In light of our conclusion to this point we need not address
appellant’s remaining arguments.
The court’s order is affirmed.
GUIDUGLI, J., CONCURS.
MILLER, J., CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Dale Henning
Beattyville, KY
A.B. Chandler III
Attorney General
Janet M. Graham
Assistant Attorney General
Frankfort, KY
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