Opinion
NO. 2017-CA-000031-MR
06-22-2018
JAMES R. ALVIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Dax R. Womack Henderson, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM UNION CIRCUIT COURT
HONORABLE C. RENE' WILLIAMS, JUDGE
ACTION NO. 16-CR-00066 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE, JOHNSON AND NICKELL, JUDGES. CLAYTON, CHIEF JUDGE: James R. Alvis entered a conditional plea of guilty to the charges of driving under the influence of alcohol ("DUI") (fourth or subsequent event) and of operating on a suspended driver's license.
Based on the conditional nature of the plea, Alvis now challenges his prosecution as a fourth-time DUI offender. He offers two grounds to support the challenge: 1) the application of Kentucky Revised Statutes (KRS) 189 et seq., as amended and applied to him, improperly infringes on his right to freely negotiate a contract; and 2) the application of KRS 189A.010, as amended and applied to him, violates the constitutional prohibition against ex post facto law principles.
Nonetheless, the Union Circuit Court determined that the 2016 legislative amendment to KRS 189A.010 did not or infringe on a person's right to freely negotiate a contract or violate ex post facto principles.
After our review, we affirm.
FACTS
Impacting Alvis's case was Senate Bill 56, which amended the enhancement provisions of Kentucky's DUI statute, KRS 189A.010 and provided that a fourth or subsequent DUI offense, within a ten-year period, constituted a Class D. Felony. Prior to the enactment of this legislation, the "look-back" period had been five years. Thus, the new legislation increased the look-back period for prior drunk-driving offenses from five to ten years. The amended legislation was signed into law on April 9, 2016, and was immediately effective.
On April 24, 2016, about two weeks after the legislation became effective, Alvis was seen by Morganfield city police erratically driving a truck two blocks from his home. The police stopped the truck and made an inquiry concerning Alvis's sobriety. Alvis admitted that he did not have a driver's license. Further, the police observed that Alvis smelled strongly of alcohol and exhibited signs of alcohol intoxication. Alvis consented to a blood test at the Union County Medical Center. Thereafter, he was detained at the Union County Detention Center.
On June 17, 2016, the Union County grand jury indicted Alvis and charged him with operating a motor vehicle under the influence of intoxicants (fourth offense) and driving on a suspended or revoked driver's license. He had previously been charged with DUI on April 18, 2008; September 12, 2008; and March 4, 2011.
Alvis filed motions in Union District Court to exclude the two 2008 DUI convictions and the 2011 conviction from consideration in the 2016 DUI charge. He argued that the Commonwealth was not following the five-year enhancement provisions, which were in effective when he entered into the 2008 and 2011 plea agreements and convictions. Hence, Alvis filed motions to enforce the plea agreements with the five-year enhancement period. The district court denied the motions on August 4, 2016.
Next, Alvis, on August 17, 2016, filed a motion to dismiss the charges in Union Circuit Court claiming that the statutory amendment to KRS 189A.010 violated contract principles and ex post facto laws. Alvis wanted to have the earlier DUI convictions excluded from the ten-year sentence enhancement under KRS 189A.010(5) because the three prior convictions occurred more than five years ago.
The trial court held a hearing on the motion to dismiss in September 2016. On January 3, 2017, the trial court denied Alvis's motion and entered a written order on January 5, 2017. Thereafter, Alvis conditionally pled guilty to DUI, fourth or subsequent offense, and operating on suspended license. In response to the guilty plea, the Commonwealth recommended a two-year sentence of imprisonment and a $250.00 fine. The trial court sentenced Alvis accordingly.
Alvis now appeals the judgment based on the denial of the pretrial motion to dismiss by the circuit court.
ANALYSIS
In the case at bar, the issue is whether Alvis's three prior convictions for DUI, which occurred more than five years but less than ten years ago, may lawfully be used to enhance the sentence for the 2016 DUI offense. On appeal, Alvis proffers the following three arguments to support that these convictions should not be used to enhance the sentence: (1) trial court failed to address the Commonwealth's breach of his plea agreement argument; (2) the enhancement provisions infringe on a party's right to freely negotiate a contract; and (3) the application of the amended KRS 189 et seq. violates the constitutional prohibitions against ex post facto laws.
When the Commonwealth filed its brief, it simultaneously filed a motion to abate this appeal since the Kentucky Supreme Court was considering both the contract and the ex post facto arguments in the combined cases of Commonwealth v. Denson, 2016-SC-531-TG and Commonwealth v. Jackson, 2016-SC-530-TG. Our Court granted the motion but later ordered the Alvis's appeal returned to the active docket since Denson and Jackson became final on June 5, 2017. See Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017).
To counter Alvis's contentions, the Commonwealth now avers that the trial court properly denied Alvis's motion to enforce the previous plea agreements, and the trial court properly ruled that the statutory amendment to KRS 189A.010 does not violate constitutional prohibitions against ex post facto laws.
To begin, we address Alvis's appealing the denial of his district court motions to enforce the plea agreements or vacate his convictions in the 2008 and 2011 DUI cases. In his notice of appeal, Alvis states that he is appealing the "Union District Court's denial of Defendant's Motion to set aside his plea agreement" in the 2008 and 2011 cases. However, an appeal of a district court's orders, under KRS 23A.080(1), must be made to the circuit court. Hence, we do not have jurisdiction to address the district court's denial of Alvis's motions and will not do so.
Next, we address Alvis's appeal of the trial court's order. On August 17, 2016, Alvis filed a motion to dismiss the DUI indictment in Union Circuit Court claiming that the statutory amendment to KRS 189A.010 violated contract law principles and violated ex post facto laws. Specifically, Alvis desired to have the convictions in the two 2008 DUI and the 2011 DUI convictions excluded from any sentence enhancement under KRS 189A.010 related to the 2016 DUI offense.
We address Alvis's first two arguments, that the trial court failed to address his breach of plea agreement argument and that the amended enhancement provision violated his plea agreement and infringe on his right to freely negotiate a contract, together. "The interpretation of a contract ... is a question of law to be determined de novo on appellate review." Kentucky Shakespeare Festival, Inc. v. Dunaway, 490 S.W.3d 691, 695 (Ky. 2016) (citation omitted).
The 2008 convictions and the 2011 conviction were more than five years prior to the latest DUI charge but within ten years of the offense. Obviously, in 2008 and 2011, when Alvis entered into a plea agreement with the Commonwealth, he was informed about the current statutory look-back period, which at that time, was five years. However, providing Alvis with the current statutory enhancement limits does not create an enforceable contract term.
Alvis's arguments are addressed in the Jackson case. Alvis argues that the amending of the statutory look-back period abrogated the original plea contract. In Jackson, the same question was considered. The Court analyzed whether the plea agreement created a contractual promise that the conviction could only be enhanced by future DUI offenses committed within the five-year period. The Court held that the plea agreement did not contain that promise. In Alvis's 2011 plea agreement, the language states: "I may be subject to greater/enhanced penalties if found guilty and/or convicted of any future criminal offenses." As in Jackson, the only reference to a five-year period is in the section that deals with the penalty range in effect at the time of the plea. The Court then held:
In summary, we conclude that language in DUI agreements such as that in this case, and similar allusions to the five-year look-back period which may have occurred during the plea bargain process, were not intended to constitute an immunization of DUI defendants from the 2016 changes to the DUI statute, and so may not be relied upon by defendants to avoid the application of the new look-back period.Jackson, 529 S.W.3d at 745.
Alvis also reasons that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), bars the application of the amended statute's new look-back period. Boykin requires that when a plea of guilty is entered, the record must affirmatively show that the defendant was informed of, and waived, his privilege against compulsory self-incrimination; his right to a trial by jury; and his right to confront his accusers. Boykin, 395 U.S. at 243, 89 S.Ct. at 1712. As explained in Jackson, "[t]he fact that subsequent legislative measures may unforeseeably alter the consequences and effects of the criminal conviction does not take the plea retrospectively outside the scope of the Boykin requirements." Jackson, 529 S.W.3d at 746-47. Future occurrences, including legislative changes, which become apparent years later, do not have the same constitutional significance for a plea as contrasted with a plea entered without knowledge of its immediate foreseeable consequences or one that interferes with fundamental rights. Id. Thus, we agree with the Supreme Court's statement in Jackson that guilty pleas, undertaken in ignorance of legislative changes years in the future, are not within the scope of a Boykin challenge. Id.
Next, we consider Alvis's contention that the application of the amended KRS 189 et seq. to him violates the constitutional prohibitions against ex post facto laws. He contends that the new look-back rule should not be applied to his post-April 2016 DUI charges because the application of the newer statute would violate ex post facto principles prohibited under both the United States Constitution and the Kentucky Constitution. U.S. Const. art. I, § 10;4; Ky. Const. § 19(1).
To determine whether a statute violates ex post facto principles, "we must consider whether the law imposes a punishment for an act that was not punishable at the time it was committed or imposes additional punishment" to an already prescribed punishment. Pate v. Department of Corrections, 466 S.W.3d 480, 486-87 (Ky. 2015) (citation omitted).
Here, Alvis's offense was punishable prior to the enactment of the 2016 amendment, and consequently, does not impose a punishment for an act that was already punishable. Second, because Alvis was charged with a DUI after April 9, 2016, the effective date for the new enhancements, it cannot be said that the punishment was aggravated or increased beyond the applicable punishment in effect on that date. See Jackson, 529 S.W.3d at 745-46.
Alvis also contends that he was not provided notice or an opportunity to challenge the amended enhancement time. Constructive notice is sufficient. And as noted in the above discussion, the plea agreements had no contract term that prohibited a change in the enhancement time for future DUI offenses, which is the case here.
Finally, as observed in Jackson, the Supreme Court has previously held that new DUI penalty provisions in an amended statute may be applied to new DUI charges. See Commonwealth v. Ball, 691 S.W.2d 207 (Ky. 1985) superseded by statute on other grounds as stated by Ballinger v. Commonwealth, 459 S.W.3d 349, 356 (Ky. 2015). In essence, the new statute does not create a new offense but merely imposes different penalties on the same criminal act depending on the status of the offender. Jackson, 529 S.W.3d at 746. And the imposition of a greater punishment based on past conduct does not present ex post facto or other related constitutional issues. Botkin v. Commonwealth, 890 S.W.2d 292 (Ky. 1994).
Consequently, we conclude that the trial court correctly decided that the application of the new look-back period to Alvis is not barred by ex post facto principles.
CONCLUSION
We hold that the language in Alvis's earlier DUI plea agreements do not immunize Alvis, a DUI defendant, from the 2016 changes in the enhancement period; that Alvis's right to freely negotiate a contract was not infringed; and that the imposition of the new enhancement period to Alvis's 2016 charge was not a violation of ex post facto principles.
The decision of the Union Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Dax R. Womack
Henderson, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky