Hankins v. State

• Decision Date: 28 September 2007
• Docket Number: CR-06-0310.
• Citation: 989 So.2d 610
• Parties: Jeffery HANKINS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

989 So.2d 610

Jeffery HANKINS v. STATE of Alabama.

CR-06-0310.

Court of Criminal Appeals of Alabama.

September 28, 2007.

Timothy Ray Wadsworth, Sulligent, for appellant.

Troy King, atty. gen., and Marc A. Starrett, asst. atty. gen., for appellee.

SHAW, Judge.

On October 11, 2006, the appellant, Jeffery Hankins,¹ pleaded guilty to driving under the influence of alcohol ("DUI"), a violation of § 32-5A-191(a)(2), Ala.Code 1975. He was sentenced, pursuant to the enhanced felony sentencing provision in § 32-5A-191(h), Ala.Code 1975, to 65 months in prison; the sentence was suspended, and Hankins was ordered to serve 15 months in prison, followed by probation.²

During the guilty-plea proceedings, Hankins objected to the trial court's sentencing him under the felony provision in § 32-5A-191(h) because, he said, he did not have the requisite number of prior DUI convictions to invoke that provision. Specifically, Hankins argued that § 32-5A-191(o), Ala.Code 1975, as amended by Act No. 2006-654, Ala. Acts 2006,³ operates to limit the application of § 32-5A-191(h) to only those persons convicted of DUI who have had at least three prior DUI convictions within a five-year period preceding the latest conviction and that he did not have three prior DUI convictions within the preceding five years.⁴ The trial court rejected Hankins's challenge to his sentence, considered Hankins to have had four prior DUI convictions for purposes of sentence enhancement, and imposed a felony sentence pursuant to § 32-5A-191(h). Hankins expressly reserved the right to appeal the propriety of his being sentenced under § 32-5A-191(h). See Mitchell v. State, 913 So.2d 501 (Ala.Crim.App.2005). Therefore, this Court is properly presented with a single issue of first impression: whether § 32-5A-191(o) requires a defendant's prior DUI convictions to have occurred within a five-year period preceding the latest conviction before the felony sentencing provision in § 32-5A-191(h) can be applied.

Section 32-5A-191 currently reads, in pertinent part:

"(a) A person shall not drive or be in actual physical control of any vehicle while:

". . . .

"(2) Under the influence of alcohol;

". . . .

"(e) Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than six hundred dollars ($600) nor more than two thousand one hundred dollars ($2,100), or by both a fine and imprisonment. In addition, on a first conviction, the Director of Public Safety shall suspend the driving privilege or driver's license of the person convicted for a period of 90 days.

"(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by a fine of not less than one thousand one hundred dollars ($1,100) nor more than five thousand one hundred dollars ($5,100) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year. The sentence shall include a mandatory sentence, which is not subject to suspension or probation, of imprisonment in the county or municipal jail for not less than five days or community service for not less than 30 days. In addition the Director of Public Safety shall revoke the driving privileges or driver's license of the person convicted for a period of one year.

"(g) On a third conviction, a person convicted of violating this section shall be punished by a fine of not less than two thousand one hundred dollars ($2,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment, which may include hard labor, in the county or municipal jail for not less than 60 days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and cannot be probated or suspended. In addition, the Director of Public Safety shall revoke the driving privilege or driver's license of the person convicted for a period of three years.

"(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years....

". . . .

"(o) A prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section."

(Emphasis added.) Subsection (o) was amended in 2006. See Act No. 2006-654, Ala. Acts 2006, § 1. Before that amendment, it was clear that subsection (h) did not require the prior DUI convictions used for felony-sentence enhancement to have occurred within five years preceding the latest conviction. See, e.g., Act No. 97-556, Ala. Acts 1997, which specifically removed the five-year requirement from both subsections (g) and (h); see also Ex parte Parker, 740 So.2d 432, 433 (Ala. 1999), and Ex parte Boyd, 796 So.2d 1092 (Ala.2001). The question, then, is what effect, if any, did the amendment of subsection (o) have on the felony sentencing provision in subsection (h)?

Hankins contends that, based on the plain meaning of the language in subsections (h) and (o), read together, a defendant convicted of DUI must have three prior DUI convictions "from this state, a municipality within this state, or another state or territory or a municipality of another state or territory" within the five-year period preceding the conviction for which the defendant is being sentenced in order for the felony sentencing provision in § 32-5A-191(h) to be invoked. In the alternative, Hankins argues that to the extent there is any ambiguity in the statute following the 2006 amendment as to whether the five-year requirement was intended to apply to prior in-state DUI convictions under § 32-5A-191 (or only to prior in-state municipal convictions and out-of-state convictions), that ambiguity may not be clarified by implication; he maintains that this Court is bound to construe § 32-5A-191 strictly and to resolve all doubts concerning its interpretation in his favor. Thus, according to Hankins, either approach — plain-meaning application or statutory construction — should lead this Court to the conclusion that the felony sentencing provision in § 32-5A-191(h) is not applicable to him because he did not have three prior DUI convictions within a five-year period immediately preceding his current conviction.

The State contends, on the other hand, that subsections (h) and (o) of § 32-5A-191, when read together, were not intended to have a limiting effect with respect to the use of prior DUI convictions for the purpose of sentence enhancement. Pointing out that subsection (o) does not say that "only" those convictions within a five-year period "shall be considered" by the trial court for purposes of sentencing under § 32-5A-191(h), the State argues:

"[Section 32-5A-191] specifically requires the trial court to consider those convictions within a five year period from the instant conviction, while also implicitly allowing the trial court the discretion to consider any and all DUI convictions outside of the five year period."

(State's brief at p. 9-10.) The State also argues that the 2006 amendment to § 32-5A-191 was simply the legislature's response to the Alabama Supreme Court's decision in Ex parte Bertram, 884 So.2d 889 (Ala.2003), and that the legislature's intent in amending subsection (o) in 2006 was to strengthen the statute by responding to the construction of § 32-5A-191 given by the Court in Bertram — that the only prior convictions that could be used for sentence enhancement were convictions that occurred in Alabama under § 32-5A-191. The State argues:

"In apparent response to Bertram, the Alabama Legislature enacted Act 2006-654 that is at issue in this case. The Legislature's express purpose in enacting the statute was:

"`to provide that a prior conviction for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory could be considered by a court for enhancement of the sentence of a person who is convicted for driving under the influence[.]'

"Exhibit `C.' [Act No. 06-654, Ala. Acts 2006.]

"The purpose of the statute was not to reinstate the five year provisions into Subsections ... (g) and (h) — had the Legislature chosen to do so, it could have clearly and expressly made those alterations to those subsections in Act 2006-654 by reinstating the five year provisions that it stripped away in Act 97-556. It could also have drafted Subsection (o) to provide that `only' those convictions within the five-year period `shall be considered.' Instead, the Legislature — albeit somewhat inarticulately — appears to have attempted to strengthen the statute by ensuring that all convictions within that five year period, from any other state, municipal, or territorial jurisdiction, must be considered for purposes of the statute's recidivism provisions. The language of the statute has left the trial courts with discretion to consider convictions outside of that period.

"It is acknowledged that, in enacting Act 2006-654 to require the trial court to consider all DUI convictions from other states, municipalities, and territories to overcome the Bertram result, the Legislature may have inadvertently weakened the statute — but not to the extent suggested by Hankins. After the enactment of Act 97-556, but before the enactment of Act 2006-654, there was no question that the trial court was required to consider a DUI conviction, regardless of its age, in reviewing a defendant's third or fourth conviction under Subsections (g) an...