Opinion
NO. 2017-CA-001461-MR
06-22-2018
COMMONWEALTH OF KENTUCKY APPELLANT v. JONATHAN LEAP APPELLEE
BRIEF FOR APPELLANT: Michael C. Zimmerman Assistant Commonwealth's Attorney Special Assistant Attorney General Newport, Kentucky BRIEF FOR APPELLEE: D. Keith Johnson Newport, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 16-CR-00973 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, DIXON AND MAZE, JUDGES. COMBS, JUDGE: At issue in this case is a plea agreement containing contractual terms: namely, the enforceability of those terms. The Campbell Circuit Court concluded that the provisions of a plea agreement created enforceable contractual terms that prevented the previous convictions of Jonathan Leap from being used to enhance his subsequent DUI charge more than five years after its occurrence. Based upon the recent ruling of the Supreme Court of Kentucky in Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017), we are compelled to reverse and remand.
Driving Under the Influence.
On October 16, 2016, Jonathan Leap was arrested for driving a vehicle while under the influence of alcohol in violation of the provisions of KRS 189A.010. He has been convicted of this offense on three previous occasions: in 2007, in 2010, and in 2014. He entered into plea agreements with respect to each of the three previous offenses. These agreements were memorialized in standard guilty plea forms issued by the Administrative Office of the Courts. In these forms, Leap was informed that his guilty plea would make him subject to the provisions of KRS 189A.010(5), which provides for the enhancement of penalties for subsequent DUI offenses committed within a specified time-frame referred to as a "look-back" period. Each time that Leap pleaded guilty, the look-back period provided for in KRS 189A.010(5) was five years. In April 2016, six months before Leap was arrested for his fourth DUI, the look-back period in KRS 189A.010(5) was extended by amendment of the statute from five years to ten years.
Kentucky Revised Statutes. --------
At arraignment, Leap pleaded not guilty. In March 2017, he filed a motion to dismiss the indictment. Leap contended that in seeking to apply the amended look-back period to enhance the penalties he might face, the Commonwealth was attempting to alter the terms of his previous plea agreements. In addition, Leap contended that applying the extended look-back period to his case violated the requirement that all plea agreements be made knowingly, intelligently, and voluntarily pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Leap also argued that applying the ten-year look-back period violated constitutional principles forbidding the ex post facto application of criminal statutes. Finally, Leap argued that by omitting any reference to the retroactivity of the expanded look-back period, the General Assembly intended only that its application be prospective.
In an opinion and order entered on August 4, 2017, the circuit court concluded that application of the expanded look-back period interfered with the negotiated terms of Leap's earlier plea agreements and unlawfully violated contract principles. Consequently, the court ruled that the ten-year look-back period could not be applied to enhance the severity of Leap's DUI charge. This appeal followed.
In Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017), the Kentucky Supreme Court directly addressed and rejected each of the arguments that Leap presented to the circuit court in support of his position that the ten-year look-back period could not be applied to his case. The court held that any reference to the five-year look-back period included in the defendant's earlier plea negotiations "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." Id. at 745.
Additionally, the court held that application of the extended look-back period did not violate ex post facto principles or the constitutional principles applied to guilty pleas in Boykin, supra. Finally, the court observed that there could be no retroactive application of a new law where the alleged crime was committed after the effective date of the 2016 amendment to the DUI statute. Because Leap is being prosecuted under the statute that was in effect at the time of his alleged crime, there is no improper retroactive application of the statute against him.
The order of the Campbell Circuit Court is reversed and remanded for entry of an appropriate order in conformity with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Michael C. Zimmerman
Assistant Commonwealth's Attorney
Special Assistant Attorney General
Newport, Kentucky BRIEF FOR APPELLEE: D. Keith Johnson
Newport, Kentucky