Opinion
NO. 2018-CA-000295-MR
11-16-2018
BRANDON SEAN FIGHTMASTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: David R. Marshall Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 17-CR-00645 OPINION
VACATING AND REMANDING
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BEFORE: DIXON, KRAMER, AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: Brandon Fightmaster appeals from the Fayette Circuit Court's judgment following his conditional guilty plea to several offenses, including operating a motor vehicle under the influence of alcohol/drugs (DUI), fourth offense, aggravated. Fightmaster challenges the trial court's denial of his motion to suppress and his request for a suppression hearing. We vacate the judgment of conviction and remand for further proceedings consistent with this opinion.
On December 1, 2017, Fightmaster entered a conditional guilty plea to DUI, fourth offense, along with other offenses unrelated to this appeal. His three prior DUI offenses occurred within the ten-year lookback period. Kentucky Revised Statutes (KRS) 189A.010(5); Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017).
He filed a motion to suppress his first DUI conviction used for enhancement purposes on the basis that his plea in that case was entered without counsel, without discussion of his Boykin rights, and after being told he would be released from jail if he pled guilty. He was arrested on that charge on May 8, 2010, and he pled guilty at his arraignment (conducted via video from the jail) three days later. The court heard arguments on Fightmaster's motion, and after orally denying the motion to suppress and the request for a hearing, allowed Fightmaster to present testimony on avowal that he was never informed of his rights and that he was not offered an attorney. The court later entered a written order denying the motion. This appeal followed.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (holding that a waiver of a defendant's constitutional rights must be made on the record).
A trial court's findings of fact with respect to a suppression hearing are conclusive if supported by substantial evidence. Commonwealth v. Lamberson, 304 S.W.3d 72, 75-76 (Ky. App. 2010). Whether the trial court properly applied the law to the factual findings is reviewed de novo. Anderson v. Commonwealth, 352 S.W.3d 577, 583 (Ky. 2011) (citations omitted). No suppression hearing occurred in this case. A trial court's failure to hold a hearing on a motion to suppress evidence—the evidence here being Fightmaster's first DUI conviction—is "harmless error when there is no dispute as to the material or substantial facts involving the evidence for which suppression is sought." Matlock v. Commonwealth, 344 S.W.3d 138, 140 (Ky. App. 2011) (citing Mills v. Commonwealth, 996 S.W.2d 473, 481 (Ky. 1999)); Kentucky Rules of Criminal Procedure (RCr) 8.27.
"A judgment of conviction is entitled to some presumption of regularity." Conklin v. Commonwealth, 799 S.W.2d 582, 584 (Ky. 1990). Consequently, Kentucky courts have consistently held that defendants may not collaterally attack prior convictions being utilized for enhancement purposes under the persistent felony offender (PFO) or DUI statutory framework. McGuire v. Commonwealth, 885 S.W.2d 931 (Ky. 1994); Webb v. Commonwealth, 904 S.W.2d 226 (Ky. 1995); Commonwealth v. Lamberson, 304 S.W.3d 72 (Ky. App. 2010). Typically, defendants make arguments based on their Boykin rights. The courts have stated that defendants waive their Boykin violation claims by failing to challenge those prior convictions "at the first opportunity—in other words, before the enhanced conviction is entered[.]" Lamberson, 304 S.W.3d at 77 (citing Howard v. Commonwealth, 777 S.W.2d 888, 889 (Ky. 1989)); see also Commonwealth v. Hodges, 984 S.W.2d 100 (Ky. 1998). Therefore, as the Commonwealth argues here, Fightmaster cannot now challenge the validity of his first DUI conviction because it must be made "before the prior offense is successfully used to enhance a conviction." Lamberson, 304 S.W.3d at 78.
However, the United States Supreme Court has carved out an exception to this general rule due to the unique constitutional nature of the right to counsel. Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). Pursuant to Custis, the admission of a prior criminal conviction that raises a presumption that the defendant was denied his right to counsel "is inherently prejudicial and to permit use of such a tainted prior conviction for sentence enhancement would undermine the principle of Gideon." 511 U.S. at 495, 114 S.Ct. at 1738 (citing Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967)). Thus, Kentucky courts are not required to conduct preliminary hearings to assess the constitutionality of convictions utilized for PFO enhancement purposes unless a complete denial of counsel in the prior proceeding(s) is claimed. McGuire, 885 S.W.2d at 937 (citing Custis, 511 U.S. at 489, 114 S.Ct. at 1735). Commonwealth v. Fugate, 527 S.W.3d 43, 46 (Ky. 2017), makes applicable that same exception to DUI enhancement cases.
The Court, quoting Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), reiterated its long-held view that "[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." (Internal quotations omitted.)
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963) (holding that the Sixth Amendment requires that counsel be appointed for indigent defendants or validly waived by the defendant). --------
However, in Fugate, the Supreme Court determined that although Fugate made the claim of "complete denial of counsel" in his appeal, he failed to make that claim at the trial court. His suppression motion only contained "oblique, unsworn allusions to not having counsel or knowing about that right" to bolster his Boykin argument, which does not "equate with claiming squarely a complete denial of counsel." Id. at 47. For that reason, the Supreme Court held that Fugate failed to properly preserve his argument that he was completely denied counsel and did not consider the claim. Id. at 48.
Here, the trial court ruled as a matter of law that Fightmaster cannot collaterally attack his first DUI conviction after failing to raise any challenge upon his second and third DUI convictions, and thus, Fightmaster was not entitled to a hearing. But Fightmaster explicitly claimed "complete denial of counsel" both in his suppression motion and during argument before the trial court on that motion, although executed unartfully. The trial court erroneously found that "these circumstances do not equate to a complete denial of counsel." The trial court thereby made a factual finding without conducting an evidentiary hearing, making it impossible for this Court to properly review this matter on appeal. Additionally, the trial court ignored Fugate's actual holding in failing to find that Fightmaster only needs to make a claim of complete denial of counsel to be afforded a suppression hearing. By making an erroneous finding as to whether Fightmaster was completely denied counsel, it is clear to this Court that Fightmaster did, in fact, raise such a claim before the trial court.
Although the merits of Fightmaster's claim are not before this Court for a determination, based on the limited information presented as to what occurred at the arraignment for his first DUI conviction, Fightmaster certainly makes sufficient allegations of a complete denial of counsel to warrant an evidentiary hearing on the matter. Regardless, Fightmaster has made the requisite claim, contrary to the circumstances in Fugate, and a complete evidentiary hearing is necessary to determine whether Fightmaster was given the opportunity to seek the assistance of counsel or have counsel appointed for him if indigent. If the facts as Fightmaster asserts them can be proven, then his first conviction could not be used as an enhancement in this case. Therefore, denying Fightmaster's request for a suppression hearing was not harmless error.
For the foregoing reasons, we vacate the Fayette Circuit Court's judgment of conviction entered December 1, 2017, and remand for further proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: David R. Marshall
Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky