HARSCHER (FRANK) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: MAY 21, 2010; 10:00 A.M.
TO BE PUBLISHED
SUPREME COURT ORDERED PUBLISHED: DECEMBER 8, 2010
(FILE NO. 2010-SC-0407-D)
Commonwealth of Kentucky
Court of Appeals
FRANK HARSCHER, III
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 99-CR-01280
COMMONWEALTH OF KENTUCKY
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BEFORE: VANMETER, ACTING CHIEF JUDGE; COMBS AND KELLER,
KELLER, JUDGE: Frank Harscher, III (Harscher) appeals from an order of the
Fayette Circuit Court denying his motion to expunge his record. For the following
reasons, we affirm.
On March 27, 2000, a jury found Harscher guilty of making a false
statement as to identity or financial condition to obtain a credit card, a Class D
felony, and recommended that he be sentenced to one-year imprisonment. On
April 27, 2000, the trial court entered its final judgment sentencing Harscher to
one-year imprisonment probated for five years. Harscher successfully completed
his probationary period.
By executive order issued on December 10, 2007, Governor Ernie Fletcher
pardoned Harscher’s 2000 conviction. The order states in pertinent part the
NOW, THEREFORE, I, Ernie Fletcher, Governor of the
Commonwealth of Kentucky, in consideration of the
foregoing, and by the virtue of the authority vested in me
by Sections 77, 145, and 150 of the Constitution of the
Commonwealth of Kentucky, do hereby unconditionally
pardon Frank Harscher III and return to him all rights and
privileges of a citizen of this Commonwealth.
On March 13, 2009, Harscher filed a motion to expunge his record pursuant
to Kentucky Revised Statute (KRS) 431.076. A hearing was held on March 13,
2009, in the Fayette Circuit Court, and on March 16, 2009, the trial court denied
Harscher’s motion. In its order, the trial court noted that KRS 431.078 does not
permit expungement of felonies. The trial court further reasoned that while a
pardon forecloses punishment of the offense itself, it does not erase the fact that the
offense occurred. Thus, the trial court concluded that the pardon granted to
Harscher was not grounds for expungement of his conviction. This appeal
On appeal, Harscher makes two arguments. First, Harscher contends that
the trial court erred in denying his motion to expunge because a pardon
automatically entitles the pardoned individual to expungement of his court records.
Second, Harscher argues that the trial court incorrectly applied KRS 431.078
instead of KRS 431.076 when it denied his motion to expunge. Because both
issues raised by Harscher are purely matters of law, we review the circuit court’s
ruling de novo. Commonwealth v. Groves, 209 S.W.3d 492, 495 (Ky. App. 2006).
The power to issue pardons is granted to the Governor in Section 77 of the
Kentucky Constitution, which provides that the Governor “shall have power to
remit fines and forfeitures, commute sentences, grant reprieves and
pardons . . . .” While the Kentucky Constitution vests the Governor with the power
to grant pardons, it does not expressly address the effects of a pardon, including the
expungement of criminal records. The Legislature has addressed the expungement
of criminal records in KRS 431.076 and KRS 431.078. However, neither KRS
431.076 nor KRS 431.078 addresses the expungement of pardoned convictions.
Thus, we must look “to common law to determine the extent of the Governor’s
pardoning power contained in Section 77 of the Kentucky Constitution.”
Anderson v. Commonwealth, 107 S.W.3d 193, 196 (Ky. 2003) (citing
Commonwealth ex rel. Meredith v. Hall, 277 Ky. 612, 126 S.W.2d 1056, 1057
Harscher argues that a full pardon has the effect of eliminating guilt or the
fact of the conviction, and thus expunges the record of the pardoned individual. In
support of his argument, Harscher relies on Jackson v. Rose, 223 Ky. 285, 3
S.W.2d 641 (1928). In Jackson, the Governor of Kentucky pardoned Jackson of
his manslaughter conviction prior to his sentencing hearing. After realizing that he
misspelled Jackson’s name in the pardon, the Governor issued a second pardon
correcting his mistake. The prosecutor objected to the filing of the second pardon
arguing that the Governor’s power was exhausted by the first pardon and that he
was without authority to grant the second pardon. The trial court sustained the
prosecutor’s objection and refused to recognize the pardon. Thus, the trial court
sentenced Jackson and placed him into custody. Id. at 642-43.
Jackson filed a petition for a writ of mandamus to compel the trial court to
give effect to the post-conviction pardon and to discharge him from custody. In
granting the petition, the former Kentucky Court of Appeals opined that:
A pardon is binding on everyone, including the courts. It
is not necessary that the pardon be supported by a formal
plea. All that is necessary is that the pardon be called to
the attention of the court. . . . When a pardon . . . is
brought to the attention of the court, it is the duty of the
court to discharge the defendant and dismiss the
proceeding against him, since the pardon is itself an
absolute exemption from any further legal proceedings
which would tend to harass the defendant on account of
Id. at 643 (internal citations omitted). Harscher argues that because a pardon
requires the court to “dismiss the proceeding against [a defendant]” a pardon
eliminates or wipes out the conviction as if it were never committed. Id.
Therefore, he argues that a pardoned conviction must be expunged. We disagree.
As stated in Anderson, a pardon is the “act or an instance of officially
nullifying punishment or other legal consequences of a crime.” 107 S.W.3d at 196
(quoting Black’s Law Dictionary (7th ed. 1999)). A full and complete pardon also
restores all civil rights to the pardoned felon. Id. In Fletcher v. Graham, 192
S.W.3d 350, 362 (Ky. 2006), the Supreme Court of Kentucky emphasized that a
pardon relieves the offender from “all the consequences which the law has annexed
to the commission of the public offense of which he has been pardoned, and attains
new credit and capacity, as if he had never committed that public offense” (quoting
Nelson v. Commonwealth, 128 Ky. 779, 109 S.W. 337, 338 (1908)). However, the
Court went on to state that:
A pardon does not prevent any and all consequences of
the pardoned offense: collateral consequences of the
offense may still follow. For example, an attorney who
has been pardoned for the offense of forgery may not be
punished for that crime, but may be disbarred as a result
of that offense. Our predecessor court also recognized
that a gubernatorial pardon does not restore the character
of the witness/pardonee, so that he or she could still be
impeached as a felon. Thus, while a pardon will
foreclose punishment of the offense itself, it does not
erase the fact that the offense occurred, and that fact
may later be used to the pardonee’s detriment.
Id. at 362-63 (internal citations omitted) (emphasis added).
Thus, while a full pardon has the effect of removing all legal
punishment for the offense and restoring one’s civil rights, it does not wipe out
either guilt or the fact of the conviction. See Nelson, 109 S.W. at 338 (concluding
that a pardon “cannot wipe out the act that he did, which was adjudged an offense.
It was done, and will remain a fact for all time.”) Because a pardon does not erase
the fact that the individual was convicted, we conclude that a pardon does not
entitle an individual to expungement of his criminal record.
We note that some of our sister jurisdictions have concluded that a pardoned
individual is entitled to have his criminal record expunged. See State v. Cope, 676
N.E.2d 141 (Ohio Ct. App. 1996): State v. Bergman, 558 N.E.2d 1111 (Ind. Ct.
App. 1990); Commonwealth v. C.S., 534 A.2d 1053 (Pa. 1987). However, this
Court “is bound by and shall follow applicable precedents established in the
opinions of the Supreme Court and its predecessor court.” Kentucky Supreme
Court Rule (SCR) 1.030(8)(a). Thus, as set forth above and based on our
jurisprudence, we are constrained to conclude that a pardon does not automatically
entitle the pardoned individual to expungement of his court records.
Harscher also argues that the trial court erred in applying KRS 431.078
instead of KRS 431.076 when it denied his motion to expunge. Although Harscher
moved the court to expunge his record pursuant to KRS 431.076, the trial court
applied KRS 431.078. As correctly noted by the trial court, KRS 431.078 only
applies to the expungement of certain misdemeanor convictions and does not
permit the expungement of felonies. However, KRS 431.076(1) does permit the
following individuals to make a motion for expungement of a criminal record:
A person who has been charged with a criminal offense
and who has been found not guilty of the offense, or
against whom charges have been dismissed with
prejudice, and not in exchange for a guilty plea to another
offense . . . .
Harscher argues that the trial court should have applied KRS 431.076
because the pardon of his conviction resulted in his felony charge being dismissed
with prejudice. We disagree. Because a pardon does not have the effect of
eliminating guilt or the fact of conviction, Harscher cannot maintain that he “has
been found not guilty of the offense” or that his “charges have been dismissed with
prejudice.” KRS 431.076(1). Thus, Harscher cannot satisfy the requirements of
KRS 431.076. Accordingly, the trial court correctly denied Harscher’s motion to
expunge, regardless of whether it applied KRS 431.076(1) or KRS 431.078.
For the foregoing reasons, we affirm the order of the Fayette Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
G. Scott Hayworth
Perry T. Ryan
Assistant Attorney General