Commonwealth v. Jackson

• Decision Date: 28 September 2017
• Docket Number: 2016-SC-000530-TG (2016-CA-001399-MR) 2016-SC-000531-TG (2016-CA-001400-MR).
• Citation: 529 S.W.3d 739
• Parties: COMMONWEALTH of Kentucky, Appellant v. Joshua Deante JACKSON, Appellee and Commonwealth of Kentucky, Appellant v. Telly Savalas Denson, Appellee
• Court: United States State Supreme Court — District of Kentucky

529 S.W.3d 739

COMMONWEALTH of Kentucky, Appellant
v.
Joshua Deante JACKSON, Appellee
and
Commonwealth of Kentucky, Appellant
v.
Telly Savalas Denson, Appellee

2016-SC-000530-TG (2016-CA-001399-MR) 2016-SC-000531-TG (2016-CA-001400-MR).

Supreme Court of Kentucky.

SEPTEMBER 28, 2017

COUNSEL FOR APPELLANT: Andy Beshear, Attorney General, Perry Thomas Ryan, Assistant Attorney General.

COUNSEL FOR APPELLEES: Steven Jared Buck, Assistant Public Advocate, Department of Public Advocacy.

COUNSEL FOR AMICUS CURIAE KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS: James David Niehaus, Professional Arts Building, 4th Floor, 730 W. Market Street, Louisville, KY 40202, Amy Irene Hannah, President, KACDL, P.O. Box 326, Hebron, KY 41048, Joshua Michael Reho, Advocacy Plaza, 719 West Jefferson Street, Louisville, KY 40202.

OPINION OF THE COURT BY JUSTICE VENTERS

In April 2016, the Governor signed into law SB 56, which amended KRS 189A.010, Kentucky's principal driving under the influence of alcohol (DUI) statute. Subsection (5) of KRS 189A.010 provides substantially enhanced penalties for subsequent DUI offenses committed within a specified

529 S.W.3d 742

time frame, which we refer to as the "look-back" period. Subsequent offenses committed after the look-back period are not subject to enhancement.

The 2016 amendment increased the look-back period from five years to ten years. By the terms of the bill, the new ten-year look-back period went into effect immediately. Obviously, the expanded ten-year look-back period will capture more prior DUI offenses than the former five-year period. Correspondingly, the additional five years during which DUI offenses can serve as penalty-enhancing prior offenses means that more DUI offenders with prior DUI convictions will be subject to enhanced sentences.

A unique issue, created by the 2016 amendment of the look-back period, arises in the cases now before this Court. In separate prosecutions in the Warren Circuit Court, Joshua Deante Jackson and Telly Sayalas Denson were charged with DUI, Fourth Offense, for offenses that occurred after the newly-amended version of KRS 189A.010 became effective. Both defendants had prior convictions for DUI offenses including one committed more than five years but less than ten years prior to his current, and thus beyond the five-year look-back period of the former law, but within the ten-year look-back period of the current law.

The circuit court held that the convictions exceeding the former five-year look-back period could not be used to elevate the current DUI charges to DUI, Fourth Offense. The Commonwealth appealed to the Court of Appeals. Recognizing the matter as one of "great and immediate public importance," pursuant to CR 74.02, we accepted transfer of the appeal.

For the reasons explained below, we conclude that the trial court erred by excluding Jackson's 2009 and Denson's 2011 offenses from use as enhancing prior DUI convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

As noted above, the Commonwealth charged each defendant with DUI, Fourth Offense, and the offense was committed after the 2016 revision of KRS 189A.010. As predicates for the DUI, Fourth Offense, charges, Jackson and Denson each had at least three prior DUI convictions, two of which were committed within five years of the current charge, but one of which preceded the current offense by more than five years, but less than ten years. Jackson's applicable charge was incurred October 9, 2008, in Warren County and he entered his guilty plea on March 3, 2009; Denson's applicable charge was incurred August 26, 2010, in Bullitt County and he pled guilty to the charge on March 2, 2011.

As pertinent here, Jackson's 2009 DUI conviction and Denson's 2011 DUI conviction were each based upon a written plea agreement that included the following standardized language:

5. ... Should I be convicted of additional DUI offenses or operating on a suspended license offenses, penalties will be increased with each conviction.

6. I understand if I plead GUILTY, the Court may impose any punishment within the range provided by law.... The legal DUI penalty ranges are: (a) First Offense Within 5 Years [penalties stated].... (b) Second Offense Within 5 Years [penalties stated].... (c) Third Offense Within 5 Years [penalties stated].... (d) Fourth or Subsequent Offense Within 5 Years [penalties stated].¹

529 S.W.3d 743

The plea agreements correctly stated the sentencing scheme applicable when each DUI charge was incurred, including the then-current five-year look-back period provided in the pre-2016 version of KRS 189A.010.

Just after the effective change of the look-back period, Jackson and Denson were each charged with DUI, Fourth Offense, based in part upon their respective 2009 and 2011 convictions. Under the former version of KRS 189A.010, these offenses could not be used to enhance a DUI committed in 2016 because the five-year look-back limitation had expired. But, under the 2016 version of KRS 189A.010, they each fit easily within the ten-year look-back period.

Jackson and Denson, represented by the same attorney, each filed a motion in the circuit court challenging their prosecutions as fourth-time offenders. They presented three grounds for relief: 1) the application of the 2016 amendment to their pre-2016 conviction violates ex post facto principles; 2) the amendment was "entrapment by estoppel";² and 3) respectively, the use of the 2009 and 2011 DUI convictions violates due process under Boykin because each defendant was informed at the time of his guilty plea that his crime exposed him to penalty enhancements only for future DUIs committed within five years.

The trial court was not persuaded by these arguments, and instead concluded sua sponte that the provisions of the 2009 and 2011 plea agreements quoted above created enforceable contractual provisions which assured Jackson and Denson that their convictions could not enhance subsequent DUI offenses committed after five years. The circuit court therefore ruled that, despite the 2016 amendment allowing a ten-year retrospective period for prior DUIs, using prior offenses more than five years old to enhance the penalty for 2016 offenses would violate contractual rights established in the defendants' plea agreements.

The Commonwealth appealed both rulings to the Court of Appeals. We accepted transfer pursuant to CR 74.02.

II. PLEA AGREEMENT CONTRACT PRINCIPLES DO NOT BAR APPLICATION OF THE NEW RULES

The Commonwealth challenges on appeal the trial court's contract rationale for barring the use of the 2009 and 2011 convictions to enhance the penalty applicable to the 2016 offenses. The Commonwealth acknowledges, and we reaffirm that "[g]enerally, plea agreements in criminal cases are contracts between the accused and the Commonwealth, and are interpreted according to ordinary contract principles." McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010) (citations omitted); accord Smith v. Commonwealth, 400 S.W.3d 742, 744 (Ky. 2013) ("[T]his...