J.S. V. COMMONWEALTH OF KENTUCKY — OPINION OF THE COURT BY JUSTICE THOMPSON REVERSING AND REMANDING

RENDERED: OCTOBER 22, 2026 TO BE PUBLISHED Supreme Court of Kentucky 2024-SC-0308-DG J. S. APPELLANT V. ON REVIEW FROM COURT OF APPEALS NO. 2023-CA-0830 FAYETTE CIRCUIT COURT NO. 06-CR-00834 COMMONWEALTH OF KENTUCKY APPELLEE OPINION OF THE COURT BY JUSTICE THOMPSON REVERSING AND REMANDING J.S.1 appeals from the denial of his petition for expungement. He argues that because the crime for which he was convicted, use or possession of drug paraphernalia, second, was reclassified after his conviction to a misdemeanor, he should be entitled to expungement for a misdemeanor. 1 We refer to J.S. by initials as it would defeat the purpose for which he seeks expungement if his name were to be disseminated in association with his past crimes. We disagree with the Court of Appeals’ interpretation in Wilkey v. Commonwealth, 737 S.W.3d 791, 792 (Ky. App. 2026), that the 2026 amendments to the Kentucky Rules of Appellate Procedure (RAP) 5(B)(2) require that we use the full name of the appellant when reviewing appeals arising from judgments denying expungement. RAP 5(B)(2) states in relevant part: “Initials or a descriptive term must be used instead of a name in cases involving . . . appeals arising from judgments granting expungements.” (emphasis added). This “must” does not deprive our courts of their discretion and independent judgment in whether to use initials to refer to a petitioner who sought expungement, was not granted expungement by the trial court, yet has a colorable claim of entitlement to expungement on appeal. It is especially important to use initials when referring to an appellant who received a previous expungement, and who may receive an expungement on remand.

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2 We reverse and remand because J.S. is eligible to be considered for a felony expungement as his request for an expungement was still pending on review when a statutory change took place which made him eligible, and the amended law is to be applied retroactively. I. FACTUAL AND LEGAL BACKGROUND As a young man, J.S. was addicted to drugs. Twenty years ago, in 2006, when J.S. was twenty-two years old, J.S. was charged with four drug-related crimes: (1) possession of a controlled substance in the first degree (a Class D felony); (2) use or possession of drug paraphernalia, second offense (a Class D felony); (3) possession of a controlled substance, second degree, first offense (a misdemeanor); and (4) controlled substance prescription, not in original container (a misdemeanor). The two misdemeanor charges were subsequently expunged in the proceedings below and are not at issue in this appeal. J.S. was convicted of the remaining two charges. His sentence was probated, and he successfully completed Drug Court and aftercare in 2008. J.S. has admitted that he received an expungement of a prior felony. It appears that he was granted an expungement on his conviction for possession of a controlled substance in the first degree, and this felony was not committed in the same transaction as his other felony. It is the remaining Class D felony, use or possession of drug paraphernalia, second offense, which we are concerned with today.

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3 J.S. also had prior drug-related convictions, at least one of which occurred in 2004. It appears he also may have received a misdemeanor expungement on use or possession of drug paraphernalia, first offense. J.S. has not been charged with committing any other crimes since 2006. He is one of our early Drug Court success stories. On February 9, 2023, J.S. filed an application for expungement, using the misdemeanor expungement form. He sought to expunge his conviction for use or possession of drug paraphernalia, second offense, pursuant to Kentucky Revised Statutes (KRS) 431.078, the misdemeanor expungement statute.2 He also filed a notice of consent pursuant to KRS 446.110, requesting that the trial court apply the current version of KRS 218A.500. When J.S. was convicted of use or possession of drug paraphernalia, second offense, this crime’s classification varied depending upon whether it was a first offense or subsequent offense. It was classified as a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses. 1992 Kentucky Laws Ch. 441 § 8(5) (HB 132). In 2010, the General Assembly reclassified use or possession of drug paraphernalia as a Class A misdemeanor for all offenses. KRS 218A.500(5); 2010 Kentucky Laws Ch. 149 § 14 (HB 265). J.S. indicated that he consented under KRS 446.110 to proceed under the new statute for possession of drug paraphernalia for purposes of expungement. 2 This statute also covers expungements for violations, traffic infractions, and dismissed or amended charges.

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4 The expungement eligibility certification notice indicated that J.S. was not eligible to have this conviction expunged pursuant to KRS 431.073, the felony expungement statute, because he already had a felony conviction expunged, making him ineligible pursuant to KRS 431.073(5)(a). The Commonwealth opposed J.S.’s petition for expungement for use or possession of drug paraphernalia, second offense, because he was convicted of a Class D felony, and KRS 336.110 limited retroactivity to changes in statutes that occurred prior to the pronouncement of judgment, with J.S.’s judgment having become final many years previously. J.S. clarified in his reply that he was not seeking to reopen his judgment but was only seeking to expunge his conviction based on the more lenient classification. On May 8, 2023, J.S. filed an amended application for expungement, this time using the felony expungement form. He checked the box that “the offense is one of the eligible offenses listed in KRS 431.073(1)(a)” but did not check either box for eligibility: The Defendant has not had a felony conviction vacated and expunged under KRS 431.073 OR The Defendant has had a felony conviction expunged under KRS 431.073 but it was prior to June 18th, 2019[.] On June 8, 2023, the trial court denied J.S.’s petition to expunge his conviction. The trial court disagreed that KRS 446.110 provided relief, explaining that the reclassification of his offense to a misdemeanor did not

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5 amend his final judgment for a felony. The trial court also indicated that J.S. failed to establish that he was entitled to a felony expungement because he had a prior felony conviction expunged, and the trial court could not determine when this expungement occurred. On June 29, 2023, a new version of the felony expungement statute, KRS 431.073, came into effect. It was to be applied retroactively. KRS 431.073(12). J.S. appealed on July 7, 2023, arguing that an expungement is a new and separate proceeding, and it is appropriate to apply the amended version of KRS 218A.500 and expunge his conviction as a misdemeanor. On May 31, 2024, the Court of Appeals affirmed, ruling that KRS 446.110 only allowed mitigation by a new law to be applied to “any judgment pronounced after the new law takes effect” and J.S.’s judgment had occurred prior to the change in the statute. We accepted discretionary review and heard oral argument in this case. II. ANALYSIS Punishment through the criminal justice system is generally justified by one or more of three principal rationales: rehabilitation, deterrence, and retribution.3 Expungement “simultaneously encourages and allows for rehabilitation.”4 It also advances the newer goal of “reintegration.”5 3 24 C.J.S. Criminal Procedure and Rights of Accused § 2187. 4 Brian M. Murray, Unstitching Scarlet Letters?: Prosecutorial Discretion and Expungement, 86 Fordham L. Rev. 2821, 2842 (2018). 5 Joy Radice The Reintegrative State, 66 Emory L.J. 1315, 1321 (2017).

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6 Criminal records foreclose opportunities even after people obtain sobriety and turn their lives around. Their criminal records “shadow” them, resulting in the denial of employment opportunities and denying them hope of a better future. A former felon explained: “Every single time I went for an interview, they would basically tell me I had the job . . . . Then my background would come back, and all of a sudden, they would have a problem with HR and couldn’t hire me. It was like a ghost that haunted me for 13 years.”6 But after an expungement, she noted: “I get to hold my head high and know that I made it . . . . I no longer have to live under the embarrassing title of a felon anymore.” Expungement provides a powerful “second chance,” a reward for “getting clean” and living a law-abiding life. Expungement “has a large impact” by opening up housing, job, and higher education opportunities.7 As another former felon explained: “People go through that expungement process and now no longer have to disclose embarrassing mistakes that they made during a rough time in their life, and they’re able to get the dream job and go to school and not have people look at you like, what’s on that piece of paper[.]”8 6 Mycca Decker, Johnson County Woman Pardoned by Kentucky Gov. Andy Beshear, Record Expunged, The Paintsville Herald (Jan 28, 2026), https://www.paintsvilleherald.com/news/johnson-county-woman-pardoned-by- kentucky-gov-andy-beshear-record-expunged/article_1cf209ea-09f9-4461-a743- c74391f82d1b.html 7 David Williams, Breaking the Cycle: Goodwill Kentucky Restores Hope Through Expungement, Spectrum News 1 (Nov. 26, 2025) https://spectrumnews1.com/ky /louisville/news/2025/11/22/goodwill-kentucky-s-expungement-clinics-are- changing-people-s-lives. 8 Daegiona Wilson, Kentucky Mother Embraces Life After Expungement, Helps Others Get Second Chance, Fox 56 (Apr. 13, 2026), https://fox56news.com/news/

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7 “[E]xpungement is not a right but a statutory privilege—a privilege the General Assembly has no obligation to provide at all[.]” Fisher v. Commonwealth, 599 S.W.3d 890, 893 (Ky. App. 2020). The General Assembly, since it first enacted our misdemeanor expungement statute in 1992, has evinced a desire to continue to support rehabilitation of people convicted of low-level offenses once they have proven to have become law-abiding citizens. In 2016, the felony expungement statute was enacted. 2016 Kentucky Laws Ch. 94 § 1 (HB 40). Like the misdemeanor expungement statute, the ultimate decision to vacate the petitioner’s judgment is left to the discretion of the trial court. KRS 431.073(5). The felony expungement statute itself declares it “shall be retroactive.” KRS 431.073(12). This language has been present since the statute’s original enactment. HB 40 § 1(10). Therefore, each time the General Assembly has widened the scope of which felonies and how many felony convictions qualify for expungement,9 all felons may benefit from these new changes. When J.S. filed his petition to expunge his Class D felony conviction on February 9, 2023, he was not eligible to receive another felony expungement. local/lexington/kentucky-mother-embraces-life-after-expungement-helps-others-get- second-chance/. 9 As first enacted, the felony expungement statute only allowed felons to expunge a single felony conviction, from an enumerated list of Class D felonies. HB 40 § 1(1), (4)(a). The 2019 amendments to the felony expungement statute broadened eligibility for expungement by allowing a second expungement if the petitioner had received an expungement under the previous version of the statute and added expanded eligibility for a broader array of Class D felonies. See 2019 Kentucky Laws Ch. 188 (SB 57) § 1(1)(d), (5)(a); Commonwealth v. Hampton, 618 S.W.3d 511, 513-14 (Ky. App. 2021) (interpreting that all Class D felonies can be considered for expungement under the provisions of KRS 431.073(1)(d)).

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8 House Bill 369—which would amend KRS 431.073 to eliminate the statutory language that limited the number of Class D felonies that could be expunged— had not yet been introduced in the House. See 2023 Kentucky Laws Ch. 87 (HB 369) § 1(5). House Bill 369 passed the House on March 3, 2023, and the Senate on March 16, 2023, and was signed by the governor on March 24, 2023. See House Bill 369, Kentucky General Assembly, https://apps.legislature.ky.gov/record/23rs/hb369.html (providing legislative history). At the time the circuit court ruled on J.S.’s petition to expunge his felony conviction, on June 8, 2023, House Bill 369 had not yet become effective. It would not take effect until June 29, 2023, a few days before J.S. filed his notice of appeal, on July 7, 2023. In requesting that the Court of Appeals and later our Court reverse the trial court’s order denying his expungement (which determined that J.S. did not qualify for expungement under either expungement statute), J.S. focused his argument on why KRS 431.078, the misdemeanor expungement statute, should apply to allow for the expungement of his conviction. However, we are not bound by his legal arguments to limit our review as to whether he is entitled to an expungement solely to the applicability of KRS 431.078. We have previously held that a party’s failure to provide the correct legal citation did not bar consideration of that legal authority, as “judges and justices are presumed to know the law and are charged with its proper application.” Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 930 (Ky. 2002). We explained that “applicable legal authority is not evidence and can be resorted to at any stage of the proceedings whether cited by the litigants or

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9 simply applied, sua sponte, by the adjudicator(s). Nor is legal research a matter of judicial notice, for the issue is one of law, not evidence.” Id. (citation omitted); see also Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991) (“When the facts reveal a fundamental basis for decision not presented by the parties, it is our duty to address the issue to avoid a misleading application of the law.”). Cmty. Fin. Services Bank v. Stamper, 586 S.W.3d 737, 740–41 (Ky. 2019). [M]uch bad law will go into the books (more, that is, than is there already) if courts confine their analyses of cases to the theories presented in the briefs . . . . For the sake of the litigants, who have some right, it seems to us, to expect the courts to assume a full share of responsibility for seeing that the controversy is correctly determined, we are of the opinion that insofar as the pleadings, the evidence, the rules of procedure and the principles of law permit, an appellate court should resolve cases on their merits, aided by but not necessarily restricted to the arguments of counsel. First Nat’l Bank of Louisville v. Progressive Cas. Ins. Co., 517 S.W.2d 226, 230 (Ky. 1974). Therefore, “the courts may sua sponte resort to the applicable legal authority at any stage of the proceedings.” Stamper, 586 S.W.3d at 741. While a case is pending on appeal, it is not final; thus, the enactment of a new law which is made retroactive can be applied to such a pending case. For example, in Dowell v. Matthews Contracting, 627 S.W.3d 890, 892-93 (Ky. 2021), a workers’ compensation case, when the workers were injured, the duration of their benefits was governed by one version of KRS 342.730(4), but while their cases were pending on appeal, the General Assembly enacted a new version of KRS 342.730(4) and specified that it was to be retroactively applied. The question was whether the new version of the statute could properly be applied to them. We concluded that their right to some benefits became vested as of the date of their injuries. Dowell, 627 S.W.3d at 897.

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10 But in contrast, their right to a certain duration or amount of benefits has not vested and will not do so until they receive a final decision of their claims. So, the 2018 amendment to KRS 342.730(4) “[does] not create new or take away vested rights” of plaintiffs like Adams and Dowell, and its retroactive application is constitutional. Because Adams's and Dowell's benefits have not been completely litigated, their potential awards must conform with the changes in the applicable law effective during the litigation process. Id. Similarly, in Hoy v. Ky. Indus. Revitalization Auth., 907 S.W.2d 766, 767 (Ky. 1995), while an open records request was pending before the Franklin Circuit Court, the General Assembly amended the Open Records Act retroactively to two years earlier and exempted disclosure of records being sought. We concluded that it was appropriate to apply the amendments to Hoy’s unresolved request. Id. at 768. Expungement is a statutory creation, like the workers’ compensation system and the Open Records Act; therefore, it is appropriate to apply statutory changes that are explicitly made retroactive to the denial of J.S.’s request for expungement, which was pending on appeal and not final when the statutory change came into effect.10 It is evident that J.S. at all times on appeal was seeking to have the trial court consider his entitlement to an expungement on the merits. The Court of Appeals did not address the applicability of the current felony expungement statute. 10 We note that non-statutory changes in interpretation are sometimes applied retroactively to matters pending on appeal as well. See, e.g., Osborne v. Keeney, 399 S.W.3d 1, 18, 24 (Ky. 2012).

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11 It is evident that J.S. was seeking to gain an expungement by any possible means. This is why he filed two different petitions for expungement forms before the circuit court, first pursuant to KRS 431.078 and then KRS 431.073. Under these circumstances, because the denial of J.S.’s petition for expungement is not yet final, and the intervening amendment by House Bill 369 applies to him, it is appropriate to reverse and remand for the circuit court to apply the current version of KRS 431.073 and determine whether to grant his petition. The prior deficits in J.S.’s petition which the trial court pointed out are no longer applicable to disqualify his petition from consideration. We applaud the General Assembly’s efforts to provide second chances to low-level, non-violent Kentucky offenders who have diligently engaged in rehabilitation and become productive citizens. We leave for another day the resolution of the interesting issue as to whether a petitioner for expungement whose Class D felony conviction resulted from conviction to a crime that has since been reclassified as a misdemeanor, could be considered eligible for expungement under the misdemeanor expungement statute. We acknowledge that the downgrading of such offenses is powerful evidence that the General Assembly has recognized that such offenders need rehabilitation rather than the additional punishment of the stigma of their convictions. III. CONCLUSION We reverse the Court of Appeals’ decision because we conclude as a matter of law that J.S. has demonstrated his eligibility to be considered for an

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12 expungement pursuant to KRS 431.073 as amended by House Bill 369. We vacate the Fayette Circuit Court’s order summarily denying J.S.’s petition to expunge his conviction for use or possession of drug paraphernalia second, and remand for the trial court to exercise its discretion in considering whether to expunge this conviction. All sitting. Lambert, C.J.; Conley, Goodwine, and Keller, JJ., concur. Nickell, J., concurs in result only. Bisig, J., dissents by separate opinion. BISIG, J., DISSENTING: While I agree with the result reached by the majority, I write separately to note that based on the parties’ arguments below, I would not have found that expungement was warranted. J.S. focused his argument on KRS 431.078, the misdemeanor expungement statute, and asserted it should apply to allow for the expungement of his felony conviction. KRS 446.110 explicitly provides that if a penalty provision is mitigated by a statutory amendment, that amendment may be applied to a “judgment pronounced after the new law takes effect.” (Emphasis added). Because J.S.’s judgment predated the statutory amendment converting possession of drug paraphernalia from a Class D felony to a Class A misdemeanor, the change in classification cannot apply. While I recognize this Court is not bound by J.S.’s legal arguments, the intervening amendment under which the Majority finds applicable relief was not yet in effect. Therefore, the lower courts appropriately ruled based on the available remedies. As such, I would affirm the Court of Appeals’ opinion upholding the Fayette Circuit Court’s denial of the expungement petition.

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13 COUNSEL FOR APPELLANT: Fred E. Peters Rhey Mills Fred Peters Law Office COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General

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