Opinion
NO. 2016-CA-001408-MR
08-03-2018
COMMONWEALTH OF KENTUCKY APPELLANT v. HON. JOHN BROWN AND DONNIE L. WARE APPELLEES
BRIEF FOR APPELLANT: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE: Steven J. Buck Department of Public Advocacy Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 16-CI-00702 OPINION
REVERSING
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BEFORE: JOHNSON, SMALLWOOD, AND THOMPSON, JUDGES. JOHNSON, JUDGE: The Commonwealth appeals from an order of the Warren Circuit Court denying its motion for a writ of prohibition against Appellee, Warren District Judge John Brown. After reviewing the record in conjunction with the applicable legal authorities, we reverse the order of the Warren Circuit Court.
BACKGROUND
Donnie L. Ware was convicted of Driving Under the Influence ("DUI"), first offense, on July 17, 2009, and DUI, second offense, on December 18, 2009. On April 9, 2016, Governor Matt Bevin signed Senate Bill 56 into law, which amended the look-back period in Kentucky Revised Statute ("KRS") 189A.010(5) from five years to ten years. The bill contained an emergency clause making it effective immediately. On April 23, 2016, Ware was arrested on a suspected DUI. The Commonwealth then moved to amend the indictment, seeking to exploit the increased look-back period in KRS 189A.010(5) so it could use Ware's 2009 conviction to enhance his latest charge to DUI, third offense.
KRS 189A.010(5)(c). --------
Ware then moved for an order prohibiting the Commonwealth from proceeding against him on a charge of DUI, third offense. The Warren District Court sustained the motion, finding retroactive application of the ten-year look-back period in KRS 189A.010(5) violated ex post facto principles and Ware's due process right that his guilty plea for his 2009 conviction be made knowingly and voluntarily as proscribed in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). It therefore suppressed any evidence of Ware's 2009 DUI conviction in his latest DUI charge.
The Commonwealth then petitioned the Warren Circuit Court for a writ of prohibition. The Circuit Court denied the petition without addressing the ex post facto or Boykin arguments raised before the District Court. The Circuit Court, sua sponte, held the Commonwealth's use of Ware's 2009 conviction to enhance his latest DUI charge violated his 2009 plea agreement. The Circuit Court concluded the language in Ware's 2009 plea agreement stating, accurately at the time, that the look-back period for DUI offenses was five years created an enforceable contract that the Commonwealth would not use this conviction to enhance DUI offenses committed after five years. This appeal followed, but we held this case in abeyance pending the outcome of Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017).
STANDARD OF REVIEW
"Whether to grant or deny a writ of prohibition is within the sound discretion of the court with which the petition is filed." Commonwealth v. Peters, 353 S.W.3d 592, 595 (Ky. 2011). "However, if the basis for the grant or denial involves a question of law, the appellate court reviews this conclusion de novo." Id.
ANALYSIS
"Relief by way of prohibition or mandamus is an extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief." Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). There are two general classes under which relief by way of a writ may be granted: (1) where a court is acting without jurisdiction or beyond its jurisdiction and (2) where a court is acting erroneously within its jurisdiction. Id. When the petitioner alleges that the trial court is acting erroneously within its jurisdiction, "a writ will only be granted when two threshold requirements are satisfied: there exists no adequate remedy by appeal or otherwise; and the petitioner will suffer great and irreparable harm." Commonwealth v. Peters, 353 S.W.3d 592, 595 (Ky. 2011).
In Jackson, 529 S.W.3d at 744-45, the Kentucky Supreme Court held that application of the amended version of KRS 189A.010(5) did not breach plea agreements on DUI convictions entered more than five years before a defendant's latest DUI charge. The plea agreement cited in Jackson is nearly identical to Ware's plea agreement. Id. at 742. The Kentucky Supreme Court held that retroactive application of KRS 189A.010(5) did not violate ex post facto principles or implicate Boykin requirements. Id. at 746-47.
"The Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court." Rules of the Supreme Court (SCR) 1.030(8)(a). Ware does not attempt to distinguish his case from Jackson or raise any argument that was not rejected in that case. Although acknowledging we are bound to follow precedent from the Kentucky Supreme Court, Ware urges us to express our opinion on the issues so the Kentucky Supreme Court can review his case. We decline.
Based on Jackson, the district was acting within in its jurisdiction, but erroneously, when it suppressed any evidence of Ware's 2009 DUI conviction in his trial for DUI, third offense. The harm "afforded the Commonwealth by proceeding to trial without crucial evidence cannot be undone." Commonwealth v. Bell, 365 S.W.3d 216, 223 (Ky. App. 2012). Without evidence of Ware's 2009 DUI conviction, the Commonwealth would have to proceed to trial without sufficient evidence to obtain a DUI conviction, third offense, and would be constitutionally prohibited from appealing the suppression order following Ware's acquittal. KY. CONST. §115. Thus, the Commonwealth has demonstrated that it has no adequate remedy on appeal and will suffer irreparable injury if its writ of prohibition is not granted. The order of the Warren Circuit Court must be reversed.
CONCLUSION
Based upon the foregoing, we reverse the order of the Warren Circuit Court.
SMALLWOOD, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY AND FILES A SEPARATE OPINION.
THOMPSON, JUDGE, CONCURRING IN RESULT ONLY: I reluctantly concur in the majority's result because I must. This case is indistinguishable from the relevant facts in Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017) and, pursuant to SCR 1.030(8)(a), this intermediate appellate court is bound by that decision. However, that rule does not preclude constructive criticism of a case from our highest court. Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986). I take that opportunity.
Section 19 of the Kentucky Constitution states: "No . . . law impairing the obligation of contracts, shall be enacted." A plea agreement is a contract. Commonwealth v. Morseman, 379 S.W.3d 144, 149 (Ky. 2012). "Once a plea agreement is accepted by a defendant, the agreement is binding upon the Commonwealth—subject to approval by the trial court—and the accused is entitled to the benefit of his bargain." Elmore v. Commonwealth, 236 S.W.3d 623, 626 (Ky.App. 2007).
Over three decades ago, the Kentucky Supreme Court warned that the Commonwealth, whether by statute or otherwise, cannot be permitted to break its promises to a criminal defendant. It eloquently stated:
The standards of the market place do not and should not govern the relationship between the government and a citizen. People v. Reagan, 395 Mich. 306, 235 N.W.2d 581, 585 (1975). "Our government is the potent, the omnipresent, teacher. For good or ill, it teaches the whole people by its example." Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944, 960 (1928) (Brandeis, J., dissenting). If the government breaks its word, it breeds contempt for integrity and good faith. It destroys the confidence of citizens in the operation of their government and invites them to disregard their obligations. That way lies anarchy. We deal here with a "pledge of public faith a promise made by state officials and one that should not be lightly disregarded." State v. Davis, Fla.App., 188 So.2d 24, 27 (1966).Workman v. Commonwealth, 580 S.W.2d 206, 207 (Ky. 1979), overruled on other grounds by Morton v. Commonwealth, 817 S.W.2d 218 (Ky. 1991). The Court stated the undebatable principle that "our historical ideals of fair play and substantial justice do not permit attorneys for the Commonwealth to disregard promises[.]" Id. Yet, that is precisely what the Commonwealth seeks to do.
The relevant provisions of the plea agreement are:
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].
Presented with the same plea agreement terms, our Supreme Court in Jackson held:
[W]e 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.
I have repeatedly read Jackson attempting to understand our Supreme Court's reasoning but I cannot. If the five-year look-back window is not part of the agreement and, as the Supreme Court reasoned, merely "details the range of penalties applicable at the time of the plea[,]" id. at 744, why put it in the agreement at all? Why would a defendant pleading guilty to a second offense DUI need to know the penalties for a first, third or fourth offense unless it was informing him of the penalties if he received an additional DUI within five years? I submit that when both provisions of the agreement are read together, the only reasonable interpretation is that the parties agreed to the five-year look-back window. As the circuit court succinctly and wisely stated: "The Commonwealth of Kentucky, through its statutes existing then and unfailing persistent advice of judges during plea colloquies (insisted upon by our superior courts), warned and told [Ware] of the five-year enhancement window. This was a commitment that bound both sides."
The Supreme Court found it absurd that "a DUI defendant who had incurred the same prior DUI offenses on the same previous dates but who went to trial instead of pleading guilty would have no cognizable claim to the exemption from the 2016 amendment, while the similarly situated defendant pleading guilty would be exempted." Id. at 745. The result is not absurd. Unlike Ware, the Supreme Court's hypothetical defendant did not waive his constitutional rights and enter into an agreement with the Commonwealth stating what penalties were possible if he had an additional DUI within five years.
Although the plea agreement is unambiguous, our Supreme Court thought otherwise. Assuming an ambiguity exists, "[t]he overwhelming sentiment . . . is that any ambiguity in such an agreement should be resolved in favor of the defendant and against the government." Elmore, 236 S.W.3d 627-28. Under that rule, the plea agreement must be construed to mean that the five-year look-back window applies.
In extending the look-back window for DUI offenses, the General Assembly no doubt sought to include more DUI offenders within the increased punishment window, a laudable purpose. However, "in the last analysis [I] find it less evil that a criminal should escape punishment than that the government should be allowed to welsh on its bargain." Workman, 580 S.W.2d at 207. BRIEF FOR APPELLANT: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky BRIEF FOR APPELLEE: Steven J. Buck
Department of Public Advocacy
Frankfort, Kentucky