RENDERED: DECEMBER 22, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-0322-MR
JAMES MAXIE APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE JOSEPH ROARK, JUDGE ACTION NO. 00-CR-00256
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND KAREM, JUDGES.
KAREM, JUDGE: James Maxie, pro se, appeals from the McCracken Circuit
Court’s order vacating its previous order expunging several of Maxie’s prior
criminal convictions pursuant to Kentucky Revised Statutes (KRS) 431.073.
Maxie contends that the circuit court was without jurisdiction to enter the order and
improperly relied on ex parte communications from the Department of Corrections (DOC) in vacating the order of expungement. Because the circuit court retained
jurisdiction to vacate its prior order and its decision to do so was based upon
evidence already in the record, we affirm.
BACKGROUND
On November 11, 2022, Maxie filed an application and a petition to
expunge his past convictions for tampering with physical evidence and first-degree
trafficking in a controlled substance (cocaine). He attached an expungement
eligibility certification notice compiled by the Administrative Office of the Courts
and the Kentucky State Police, which contains a list of Maxie’s charges, their
disposition, and whether they were eligible for expungement. On January 23, the
Commonwealth filed a response stating it had no objection to the expungement.
A brief hearing on Maxie’s application was conducted on February 3,
2023. The circuit court noted that there was no objection to the expungement from
the Commonwealth and told Maxie it would grant his petition. At Maxie’s request,
the court stated that it would sign the expungement order that day. The actual
written order granting the application to vacate and expunge the convictions was
entered on February 13, 2023.1
1 In addition to expunging Maxie’s convictions for tampering with physical evidence and first- degree trafficking in a controlled substance, the order also expunged a persistent felony offender charge.
-2- On February 22, 2023, the circuit court on its own motion vacated the
order, upon notice from the DOC that Maxie had incurred new charges within the
past five years and was consequently disqualified from expungement under the
terms of the statute. Maxie filed a motion to reconsider, and the circuit court
conducted a hearing at which Maxie’s wife appeared on his behalf. The circuit
judge explained that he had not been aware at the time he granted the expungement
that Maxie was incarcerated for a probation violation related to the underlying
charges he was seeking to expunge. The court held that the charges could not be
expunged as a matter of law and denied the motion to reconsider. This appeal by
Maxie followed.
ANALYSIS
KRS 431.073 provides that a person may have certain Class D felony
convictions vacated and the records expunged upon application to the court in
which he or she was convicted. KRS 431.073(1). The application to have the
judgment vacated “shall be filed no sooner than five (5) years after the completion
of the person’s sentence, or five (5) years after the successful completion of the
person’s probation or parole, whichever occurs later.” KRS 431.073(2)(a). The
court may order the expungement only upon finding that: “[t]he person had not in
the five (5) years prior to the filing of the application to have the judgment vacated
been convicted of a felony or a misdemeanor; [and] [n]o proceeding concerning a
-3- felony or misdemeanor is pending or being instituted against the person[.]” KRS
431.073(5)(a) and (b).
Maxie argues that because more than ten days passed after the hearing
at which the circuit court informed him it would grant the expungement, the court
was without jurisdiction to enter the order vacating the expungement.
A circuit court retains jurisdiction over its judgments for ten days after
their entry.
Not later than 10 days after entry of judgment the court of its own initiative, or on the motion of a party made not later than 10 days after entry of judgment, may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59.
Kentucky Rules of Civil Procedure (CR) 52.02.
Within that ten-day period, “a court has unlimited power to amend
and alter its own judgments.” Henry Clay Mining Co., Inc. v. V & V Mining Co.,
Inc., 742 S.W.2d 566, 567 (Ky. 1987) (citation omitted). “Generally speaking, a
trial court lacks power to amend a judgment ten days after the entry of that
judgment.” Winstead v. Commonwealth, 327 S.W.3d 479, 485-86 (Ky. 2010).
The circuit court’s statement to Maxie at the hearing, that the
expungement order would be signed that day, did not constitute the “entry of a
judgment” because “the circuit court . . . speaks only through written orders
-4- entered upon the official record.” Kindred Nursing Centers Ltd. Partnership v.
Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010) (citations omitted).
Entry of a judgment occurs when the court clerk notes the written
order in the docket. CR 58(1). “The notation shall constitute the entry of the
judgment or order, which shall become effective at the time of such notation[.]”
CR 58(1). “It has long been established that, regardless of when a judgment or
order is rendered, it is the notation of the judgment or order in the docket by the
clerk which constitutes ‘entry’ of the document, and the document is not effective
until after it has been entered by being noted in the docket.” Staton v. Poly Weave
Bag Co., Incorporated/Poly Weave Packaging, Inc., 930 S.W.2d 397, 398 (Ky.
1996) (citations omitted).
The circuit court’s order vacating the expungement was entered by the
clerk on February 22, 2023, nine days after the entry of the written order of
expungement on February 13, 2023. The circuit court vacated its prior order
within ten days of its entry and therefore had jurisdiction to alter and amend the
judgment.
Maxie further argues that the trial court improperly relied on ex parte
communications from the DOC in determining that he had incurred new charges in
the past five years.
An “ex parte communication” is defined as “[a] generally prohibited communication between counsel and the court
-5- when opposing counsel is not present.” BLACK’S LAW DICTIONARY 597 (7th ed.). When used as an adjective, the phrase “ex parte” is defined as being “[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested[.]” Id.
Commonwealth v.
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RENDERED: DECEMBER 22, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-0322-MR
JAMES MAXIE APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE JOSEPH ROARK, JUDGE ACTION NO. 00-CR-00256
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND KAREM, JUDGES.
KAREM, JUDGE: James Maxie, pro se, appeals from the McCracken Circuit
Court’s order vacating its previous order expunging several of Maxie’s prior
criminal convictions pursuant to Kentucky Revised Statutes (KRS) 431.073.
Maxie contends that the circuit court was without jurisdiction to enter the order and
improperly relied on ex parte communications from the Department of Corrections (DOC) in vacating the order of expungement. Because the circuit court retained
jurisdiction to vacate its prior order and its decision to do so was based upon
evidence already in the record, we affirm.
BACKGROUND
On November 11, 2022, Maxie filed an application and a petition to
expunge his past convictions for tampering with physical evidence and first-degree
trafficking in a controlled substance (cocaine). He attached an expungement
eligibility certification notice compiled by the Administrative Office of the Courts
and the Kentucky State Police, which contains a list of Maxie’s charges, their
disposition, and whether they were eligible for expungement. On January 23, the
Commonwealth filed a response stating it had no objection to the expungement.
A brief hearing on Maxie’s application was conducted on February 3,
2023. The circuit court noted that there was no objection to the expungement from
the Commonwealth and told Maxie it would grant his petition. At Maxie’s request,
the court stated that it would sign the expungement order that day. The actual
written order granting the application to vacate and expunge the convictions was
entered on February 13, 2023.1
1 In addition to expunging Maxie’s convictions for tampering with physical evidence and first- degree trafficking in a controlled substance, the order also expunged a persistent felony offender charge.
-2- On February 22, 2023, the circuit court on its own motion vacated the
order, upon notice from the DOC that Maxie had incurred new charges within the
past five years and was consequently disqualified from expungement under the
terms of the statute. Maxie filed a motion to reconsider, and the circuit court
conducted a hearing at which Maxie’s wife appeared on his behalf. The circuit
judge explained that he had not been aware at the time he granted the expungement
that Maxie was incarcerated for a probation violation related to the underlying
charges he was seeking to expunge. The court held that the charges could not be
expunged as a matter of law and denied the motion to reconsider. This appeal by
Maxie followed.
ANALYSIS
KRS 431.073 provides that a person may have certain Class D felony
convictions vacated and the records expunged upon application to the court in
which he or she was convicted. KRS 431.073(1). The application to have the
judgment vacated “shall be filed no sooner than five (5) years after the completion
of the person’s sentence, or five (5) years after the successful completion of the
person’s probation or parole, whichever occurs later.” KRS 431.073(2)(a). The
court may order the expungement only upon finding that: “[t]he person had not in
the five (5) years prior to the filing of the application to have the judgment vacated
been convicted of a felony or a misdemeanor; [and] [n]o proceeding concerning a
-3- felony or misdemeanor is pending or being instituted against the person[.]” KRS
431.073(5)(a) and (b).
Maxie argues that because more than ten days passed after the hearing
at which the circuit court informed him it would grant the expungement, the court
was without jurisdiction to enter the order vacating the expungement.
A circuit court retains jurisdiction over its judgments for ten days after
their entry.
Not later than 10 days after entry of judgment the court of its own initiative, or on the motion of a party made not later than 10 days after entry of judgment, may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59.
Kentucky Rules of Civil Procedure (CR) 52.02.
Within that ten-day period, “a court has unlimited power to amend
and alter its own judgments.” Henry Clay Mining Co., Inc. v. V & V Mining Co.,
Inc., 742 S.W.2d 566, 567 (Ky. 1987) (citation omitted). “Generally speaking, a
trial court lacks power to amend a judgment ten days after the entry of that
judgment.” Winstead v. Commonwealth, 327 S.W.3d 479, 485-86 (Ky. 2010).
The circuit court’s statement to Maxie at the hearing, that the
expungement order would be signed that day, did not constitute the “entry of a
judgment” because “the circuit court . . . speaks only through written orders
-4- entered upon the official record.” Kindred Nursing Centers Ltd. Partnership v.
Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010) (citations omitted).
Entry of a judgment occurs when the court clerk notes the written
order in the docket. CR 58(1). “The notation shall constitute the entry of the
judgment or order, which shall become effective at the time of such notation[.]”
CR 58(1). “It has long been established that, regardless of when a judgment or
order is rendered, it is the notation of the judgment or order in the docket by the
clerk which constitutes ‘entry’ of the document, and the document is not effective
until after it has been entered by being noted in the docket.” Staton v. Poly Weave
Bag Co., Incorporated/Poly Weave Packaging, Inc., 930 S.W.2d 397, 398 (Ky.
1996) (citations omitted).
The circuit court’s order vacating the expungement was entered by the
clerk on February 22, 2023, nine days after the entry of the written order of
expungement on February 13, 2023. The circuit court vacated its prior order
within ten days of its entry and therefore had jurisdiction to alter and amend the
judgment.
Maxie further argues that the trial court improperly relied on ex parte
communications from the DOC in determining that he had incurred new charges in
the past five years.
An “ex parte communication” is defined as “[a] generally prohibited communication between counsel and the court
-5- when opposing counsel is not present.” BLACK’S LAW DICTIONARY 597 (7th ed.). When used as an adjective, the phrase “ex parte” is defined as being “[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested[.]” Id.
Commonwealth v. Cambron, 546 S.W.3d 556, 560 (Ky. App. 2018).
As noted above, the statute specifically prohibits the expungement of
a charge if the applicant has been convicted of a felony or a misdemeanor in the
five years preceding the filing of the application or if a felony or misdemeanor is
pending or being instituted against the person. KRS 431.073(5)(a) and (b). The
expungement eligibility certification notice Maxie filed with his petition showed
he had been convicted of charges in the five years preceding the filing of his
application. Therefore, the information the DOC drew to the circuit court’s
attention was already in the court record, placed there by Maxie himself. Maxie
had notice of the information and consequently it does not meet the definition of an
ex parte communication.
Furthermore, as the Commonwealth points out and the circuit court
stated at the hearing on the motion to reconsider, Maxie was incarcerated at the
time of the evidentiary hearing under the same indictment number as the felonies
he was seeking to expunge, which rendered him ineligible for expungement under
KRS 431.073(2)(a), which permits an application for expungement no sooner than
five years after the successful completion of the person’s probation or parole.
-6- “Like parole, expungement is not a right but a statutory privilege – a
privilege the General Assembly has no obligation to provide at all and which it
may therefore provide subject to conditions that our Courts are not at liberty to
ignore.” Fisher v. Commonwealth, 599 S.W.3d 890, 893 (Ky. App. 2020).
“Expungement is a privilege granted by statute, the express limits of which cannot
be extended by judicial fiat.” Id. (quoting Alexander v. Commonwealth, 556
S.W.3d 6, 9 (Ky. App. 2018)).
The circuit court was simply not at liberty to ignore the fact that
Maxie’s record did not meet the statutory conditions for expungement. The circuit
court’s decision to vacate its judgment is reviewed for an abuse of discretion.
Emberton v. GMRI, Inc., 299 S.W.3d 565, 579 (Ky. 2009). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999). The circuit court did not abuse its discretion in vacating its
prior order upon discovering that Maxie’s record was ineligible for expungement.
As a matter of law, it could not extend the privilege of expungement to Maxie by
judicial fiat.
-7- CONCLUSION
For the foregoing reasons, the McCracken Circuit Court’s order
vacating expungement is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
James Maxie, pro se Daniel Cameron West Liberty, Kentucky Attorney General of Kentucky
Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
-8-