Ghoston v. State, 91-KA-00384
| Decision Date | 17 November 1994 |
| Docket Number | No. 91-KA-00384,91-KA-00384 |
| Citation | 645 So.2d 936 |
| Parties | Kelvin GHOSTON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Clayton T. Lewis, Philadelphia, for appellant.
Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and BANKS and JAMES L. ROBERTS, Jr., JJ.
I.
Kelvin Ghoston was convicted in the Neshoba County Circuit Court of driving under the influence of intoxicating liquor. As this was his fourth DUI, he was charged with a felony. Ghoston was sentenced to serve one year imprisonment, with six months suspended, two years probation, and a $3,500 fine. Ghoston appealed, assigning the following errors:
A. THE LOWER COURT ERRED IN UPGRADING A MISDEMEANOR CHARGE TO A FELONY, AND SENTENCING GHOSTON AS A FELON. THAT THE LOWER COURT SHOULD NOT HAVE ENHANCED THE PUNISHMENT.
B. THE COURT ERRED IN NOT GRANTING INSTRUCTION D-5 FOR THE DEFENDANT DEFINING THE TERM "UNDER THE INFLUENCE OF INTOXICATING LIQUOR."
Finding that Ghoston was properly sentenced as a felon, we affirm. We find no merit to Ghoston's second issue.
II.
On March 7, 1990, Kelvin Ghoston was indicted by a grand jury in Neshoba County on charges of operating a motor vehicle while under the influence of intoxicating liquors, in violation of Miss.Code Ann. Sec. 63-11-30 (1972, as amended). 1 The indictment charged that Ghoston had three prior DUI convictions: "DUI 1st offense" on September 10, 1986; "DUI 2nd offense" on March 9, 1987; and "DUI 4th offense" on November 21, 1987. Ghoston was found guilty by a jury in July 1990, but was granted a new trial on the grounds that the court had denied him the opportunity to put on evidence concerning the circumstances of his prior convictions.
At a second trial, held March 12, 1991, two Philadelphia police officers testified that on August 18, 1989, they stopped Ghoston's car because it was swerving back and forth in the road. When he stepped out of the car, Ghoston smelled of alcohol, slurred his speech, and had red eyes. As he could not stand, Ghoston held onto the side of the car. The officers observed a bottle of gin in the passenger seat. Ghoston was taken to the jail for a breath test, which registered a blood alcohol content of .24%.
Ghoston testified that on the day in question, while working on his car, he breathed diesel and gasoline fumes and got diesel fuel and gasoline on himself and his clothes. He suggested that possibly the fumes in his clothes registered on the breath test. Ghoston denied drinking any alcohol on the occasion and denied knowledge of a gin bottle in his car. He testified that his eyes had turned red from the fumes and that he had been tired.
After deliberating for twenty-three minutes, the jury returned a guilty verdict.
At the sentencing hearing on March 21, 1991, the State offered Abstracts of Court Records attesting to Ghoston's three prior convictions for DUI. 2 Ghoston then testified that when he pled guilty to the prior charges, he was not represented by counsel, nor was he given warnings as to possible increased or enhanced punishment if charged with a similar offense in the future. He stated that he did not sign a waiver of his right to have an attorney present; nor was he advised of his constitutional rights. Ghoston testified that he was not aware, until charged with the current offense, that he could be charged with a felony.
The State admitted it had no evidence to rebut Ghoston's testimony, but argued that there is a presumption, when certified records are filed, that the defendant's rights have been protected. Ghoston's motion to treat the conviction as a first offense was denied.
A judgment issued March 22, 1991, sentenced Ghoston to serve one year in the custody of the Mississippi Department of Corrections and to pay a fine of $3,500. Upon serving six months in the Neshoba County Jail and payment of the fine, the remaining six months would be suspended, and Ghoston placed on probation for two years. The sentence also provided that Ghoston was "not to be quartered all the time he is in the Neshoba County Jail, but that he be permitted to do community service." A condition of probation was that Ghoston attend Ghoston's motion for a JNOV or in the alternative a new trial was denied on April 8, 1991. Ghoston timely filed his notice of appeal on April 11, 1991.
an alcohol abuse program upon release from the jail.
III.
Ghoston argues that the trial court erred in using his prior DUI convictions to enhance his sentence, because these convictions occurred when he was without counsel, without proper warnings as to his constitutional rights, and without understanding that in the event of future DUI offenses, he could be convicted of a felony and sentenced to the penitentiary. Ghoston further maintains that by testifying as to the above at the sentencing hearing, he rebutted the presumption of regularity accorded the conviction abstracts. He also points out the fact that the State offered no evidence to the contrary after his testimony. For those reasons, Ghoston contends that the judge should have sustained his motion not to enhance punishment. Additionally, Ghoston argues that neither he nor his attorney were furnished with copies of the abstracts of prior convictions introduced at the sentencing hearing, in violation of Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice. He maintains the court erred in admitting these abstracts and using them to enhance his punishment.
The State asserts that under Sheffield v. City of Pass Christian, 556 So.2d 1052 (Miss.1990), prior convictions may be used to enhance punishment under Miss.Code Ann. Sec. 63-11-30, if the defendant did not receive any jailtime from these convictions, even if the defendant did not have counsel at the time of his prior convictions. Since Ghoston received no jailtime for his prior DUI convictions, the State maintains that those convictions could be used to enhance his punishment, despite the lack of representation by counsel.
We find a recent case controlling on this issue. In Nichols v. United States, --- U.S. ----, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), the United States Supreme Court held that previous uncounseled misdemeanor convictions may be considered in sentencing a defendant for a subsequent offense so long as the previous uncounseled misdemeanor conviction did not result in a sentence of imprisonment.
In Sheffield v. City of Pass Christian, 556 So.2d 1052 (Miss.1990), the City sought a pretrial ruling on the admissibility of the defendant's three prior DUI convictions and one prior conviction for driving with a suspended license. The Municipal Court ruled the prior convictions inadmissible, on the grounds that the City could not show that Sheffield had been represented by counsel or had knowingly and intelligently waived his rights to counsel during the proceedings of these prior convictions. The Circuit Court reversed, and this Court affirmed, holding that the uncounselled convictions, for which counsel was not constitutionally required, could be used to enhance punishment upon a subsequent DUI conviction. We stated:
The prior convictions of Sheffield when he was without counsel were constitutionally valid in and of themselves, are also valid now for the purpose of enhancing punishment of Sheffield under Miss.Code Ann. Sec. 63-11-30, and further they certainly could be considered for any lesser administrative sanctions included in the statutes, such as suspension of one's driver's license. To find otherwise would have the illogical effect of penalizing those defendants that do obtain counsel in misdemeanor cases and of finding a prior constitutionally valid misdemeanor conviction is unconstitutional in certain future instances.
Sheffield, 556 So.2d at 1053 (citation omitted).
In Sheffield, we also outlined the procedures to be followed in admitting prior misdemeanors for purposes of sentence enhancement, with particular attention to the question...
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