JOSEPH MONTGOMERY v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 25, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001261-MR
JOSEPH MONTGOMERY
v.
APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DOUGLAS M. GEORGE, JUDGE
ACTION NO. 89-CR-00008
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Joseph Montgomery (Montgomery) appeals from an
order of the Taylor Circuit Court entered April 30, 1998, denying
Montgomery’s motion for expungement of his criminal record.
We
affirm.
On June 29, 1988, Montgomery was indicted by a Taylor
County Grand Jury for:
1. Possession of a firearm by a convicted
felon;
2. Criminal attempt to commit capital
murder;
3. Wanton endangerment in the first degree;
and
4.
Persistent felony offender in the first degree.
Upon motion of the Commonwealth, the trial court amended the
indictment and severed the charge of possession of a firearm by a
convicted felon.
On October 17, 1989, Montgomery was convicted
on the remaining counts by a Taylor County jury.
Thereafter, on
October 18, 1990, on direct appeal, the Kentucky Supreme Court,
in an unpublished opinion (No. 89-SC-827-MR), vacated
Montgomery’s convictions for criminal attempt to commit murder
and persistent felony offender in the first degree.
On February 3, 1998, Montgomery filed a motion to
expunge his criminal record on the grounds that he “continues to
be haunted by these unfounded and illegitimate charges” that
still appear on his criminal record.
On April 30, 1998, the
trial court denied the motion for expungement.
This appeal
followed.
At the outset we should note that although Montgomery
filed this appeal pro se, he is still held to the “stringent
standards of law and rules of court” the same as an appellant who
is represented by counsel.
Having so stated, we note that
Montgomery’s brief did not comply with the appellate rules.
He
did not refer to the trial record at the beginning of his
argument and he did not attached to his brief a copy of the order
from which he was appealing as required by CR 76.12.
We would be
justified in dismissing this appeal without considering the
merits given Montgomery’s failure to comply with CR 76.12.
However, because we believe that the trial court properly
-2-
disposed of Montgomery’s motion for expungement, we will address
the merits of his appeal.
Pursuant to KRS 431.076(4), the trial court “may grant
the motion [for expungement] and order the sealing of all records
in custody of the court and any records in the custody of any
other agency or official, including law enforcement records.”
(emphasis added).
When presented with Montgomery’s motion, the
trial court chose to exercise the discretion given it by statute
and elected not to expunge Montgomery’s record.
Given the
serious nature of the offenses Montgomery sought to have
expunged, the lack of evidence presented by Montgomery to support
his motion and the circumstance before the trial court concerning
Montgomery’s lengthy criminal history, we cannot say the trial
court abused its discretion when it denied Montgomery’s motion
for expungement.
For the foregoing reasons, the decision of the trial
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Joseph Montgomery
Eddyville, KY
A. B. Chandler, III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, KY
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