Ratliff v. Com., s. 85-CA-767-D

• Decision Date: 22 August 1986
• Docket Number: 85-CA-768-DG,Nos. 85-CA-767-D,s. 85-CA-767-D
• Citation: 719 S.W.2d 445
• Parties: Danny S. RATLIFF, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Leonard L. CARTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 445

719 S.W.2d 445

Danny S. RATLIFF, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Leonard L. CARTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 85-CA-767-DG, 85-CA-768-DG

Court of Appeals of Kentucky.

Aug. 22, 1986.

Rehearing Denied Nov. 7, 1986.

Michael R. Moloney, Geralds, Moloney & Jones, Lexington, for appellants.

David L. Armstrong, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.

Before COMBS, HOWARD and DUNN, JJ.

DUNN, Judge.

Appellants, Danny S. Ratliff and Leonard L. Carter, in these two cases seek review of their convictions by juries in the Fayette District Court for driving under the influence of alcohol, KRS 189A.010(1). Each appellant was determined to be a past offender of that statute or its predecessor, consequently each was accorded the mandatory enhanced sentences set out in KRS 189A.010(2).

On appeal, they raise numerous common challenges to the statute of both a constitutional and evidentiary nature, including their contentions that: 1) the mandatory sentencing provisions of KRS Chapter 189A are a legislative abridgment of the courts' inherent powers to sentence and are therefore violative of Sections 27 and 28 of the Kentucky Constitution relating to the separation of powers: 2) the use of convictions for driving under the influence obtained prior to the effective date of KRS Chapter 189A as a basis for enhancement of their sentences was contrary to general prohibitions against the ex post facto application of laws; 3) the district court erred in overruling their motions for bifurcated trials thus allowing the juries to hear evidence of their earlier convictions before the determination of guilt on the immediate charge; 4) the commonwealth attempted to prove appellants' prior convictions by resort to inadmissible evidence; and 5) the district court erred in allowing the use of their previous convictions for enhancement purposes as they had been achieved by means of uncounseled guilty pleas entered without provision of the required constitutional safeguards. In addition to these five arguments, each appellant asserts other allegations of error peculiar to his own case. For organizational purposes, we will first concern ourselves with the issues presented jointly by appellants, however, we will discuss the individual contentions only as is necessary in the latter stages of the opinion. Of the jointly presented issues we conclude that only questions number 4 and 5 above constitute reversible error. On that basis we therefore reverse the judgment of the Fayette District Court and remand for further proceedings as to penalty consistent with this opinion.

The majority of issues raised by appellants concern either questions of law or procedural and evidentiary matters arising during the course of trial. Accordingly, a protracted discussion of the events leading to their arrest would only serve to unduly burden this opinion, and we will therefore provide a detailed recitation of the facts only as is necessary to promote meaningful appellate review of the specific issue under consideration.

Appellants base their first assertion of error on the grounds that the mandatory minimum sentencing requirements for repeat offenders contained in KRS 189A.010(3) are constitutionally defective. In particular, they direct us to Sections 27 and 28 of the Kentucky Constitution concerning the separation of powers which state respectively that:

27. The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

28. No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Appellants claim that KRS 189A.010(3), which directs that the minimum sentences for repeat offenders established in the earlier portions of that statute, shall not be subject to suspension, probation, or any other form of conditional release or early discharge, represents a clear violation of those constitutional provisions. As a basis for that assertion, they maintain that the power of the judiciary to suspend or probate a sentence is a function which is inherently judicial in nature and therefore not subject to control through legislative enactment. Huggins v. Caldwell, 223 Ky. 468, 3 S.W.2d 1101 (1928). ¹

We disagree. While it is true that courts are charged with the actual implementation of the probation and conditional discharge statutes on a case-by-case basis, the availability of those methods as an alternative to imprisonment is purely the product of statutory creation and therefore represents a policy decision by the legislature as to the appropriate punishment to be accorded for each particular offense. Simply enough, the task of setting a punishment for a given crime is a legislative function. The legislature in its exercise of that authority is free to determine on a policy basis that certain offenses do not warrant resort to probation or conditional discharge as an appropriate form of punishment. Owens v. Clemons, Ky., 408 S.W.2d 642 (1966); Lavon v. State, 586 S.W.2d 112 (Tenn.1979); State v. Lowe, 661 S.W.2d 701 (Tenn.Cr.App.1983). ² Consequently, we cannot accept appellants' contention that the mandatory minimum sentence provisions of KRS 189A.010(3) constitutes a violation of the concept of separation of powers.

Appellants next maintain that the trial court erred in allowing the use of their previous convictions for driving under the influence entered prior to July 13, 1984, the effective date of KRS Chapter 189A, as grounds for enhancement of the penalties accorded them in this action. Specifically, they contend that such a practice is contrary to the general proscription against the ex post facto application of laws. We need only briefly remark on this question, however, as it has already been addressed by our Supreme Court in Commonwealth v. Ball, Ky., 691 S.W.2d 207 (1985). In light of the fact that this Court functions solely as a court of error, rather than one of policy, we are bound by the Supreme Court's approval of the use for enhancement purposes of convictions obtained under the predecessor statute of KRS Chapter 189A. See Farmers Bank and Trust Co. of Bardstown v. Rice, Ky., 674 S.W.2d 510 (1984). We, therefore, affirm the judgment of the trial court on this issue.

As their third allegation of error, appellants contend that the trial court improperly allowed the admission of evidence regarding their prior drunken driving convictions before the jury had reached a verdict as to their guilt on the immediate charge giving rise to this appeal. Exposure of the jury to such information, they maintain, is invariably prejudicial to their defense, thereby entitling them to a bifurcated trial, similar to that employed in persistent felony offender proceedings, in which the introduction of evidence regarding the earlier convictions would be excluded until after a determination of guilt on the underlying charge.

At first blush this argument appears to be extremely persuasive, especially in light of the authorities cited to us by appellants regarding the general inadmissibility of evidence of past felony convictions in felony prosecutions. See, e.g., Commonwealth v. Richardson, Ky., 674 S.W.2d 515 (1984); Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970). Nevertheless, despite our fundamental agreement with appellants on this question and our belief that substantial prejudice will unavoidably result from the premature introduction of evidence of this nature, we are bound by our role as a court of error to affirm the trial court on this question. Farmers Bank and Trust Co. of Bardstown v. Rice, supra. Specifically, decisions by our Supreme Court indicate that in cases such as the present appeals in which proof of defendant's prior convictions was essential to the determination of guilt on the primary charge or the fixing of an appropriate punishment, evidence of those earlier convictions was admissible regardless of their unquestionably prejudicial effect. Wahl v. Commonwealth, Ky., 490 S.W.2d 769 (1972). ³ See also, R. Lawson, The Kentucky Evidence Law Handbook Sec. 2.20, Comment II (2d ed. 1984).

We find further support for our conclusions that the trial court did not commit reversible error in allowing the introduction of evidence of appellants' earlier convictions prior to determination of guilt on the underlying charge in our Supreme Court's holding in Carver v. Commonwealth, Ky., 634 S.W.2d 418 (1982). In that case the defendant who was charged with a violation of the local option laws, argued that the enhanced sentence which she might be accorded on the basis of an earlier conviction for violation of that same law entitled her to a bifurcated trial, at which evidence of the first conviction would not be admitted until the sentencing phase of the proceeding. The Supreme Court rejected that contention, however, on the grounds that bifurcated trial in such prosecutions are not constitutionally mandated, but instead, as in the persistent felony offender cases, are the product of statutory enactment. As no such requirement is present in KRS 189A, the trial court did not err in refusing to grant appellants' motion for bifurcated trials and admitting evidence of their prior convictions before a determination of guilt on the underlying charge.

In reaching this conclusion, we do not mean to minimize the unavoidable prejudice that will result from the early introduction of evidence regarding a defendant's previous convictions for drunken driving. As much as is possible, the trial court in this type of prosecution should attempt to negate the harm produced by the disclosure of...