Opinion
NO. 2017-CA-000277-MR
08-03-2018
JORDAN LEWIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ryan Bennett Driskill Greenville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 16-CR-00105 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES. JONES, JUDGE: Jordan Lewis appeals the judgment and sentence of the Muhlenberg Circuit Court convicting him of driving under the influence of alcohol ("DUI"), fourth offense. Lewis challenges the application of the ten-year lookback period in KRS 189A.010(5). After careful review, we affirm.
Kentucky Revised Statutes.
I. BACKGROUND
Lewis was first convicted of a DUI on February 20, 2009. He was convicted of two additional DUI charges on December 3, 2014. On April 9, 2016, Governor Matt Bevin signed SB 56 into law, which amended the lookback period in KRS 189A.010(5) from five years to ten years. The bill contained an emergency clause making it effective immediately. Lewis was cited for an additional DUI offense in August 2016. Based on the newly amended increased lookback period in KRS 189A.010(5), the Commonwealth used Lewis's 2009 conviction to indict him for DUI, fourth offense.
Lewis moved to dismiss or amend the indictment. Lewis argued retroactive application of the ten-year lookback period in KRS 189A.010(5) violated ex post facto principles, violated his due process rights under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and constituted "entrapment by estoppel." Regarding his entrapment by estoppel argument, Lewis contended that retroactive application of the ten-year lookback period violated the terms of his 2009 plea agreement, which stated, accurately at the time, that the lookback period for DUI offenses was five years. The trial court denied the motion. Lewis subsequently entered a conditional guilty plea to DUI, fourth offense, reserving his right to appeal the denial of his motion to dismiss or amend the indictment. This appeal followed, but we held the case in abeyance pending the outcome of Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017).
On appeal, Lewis argues that we must remand the case to the trial court for findings of fact to determine if a "meeting of the minds" occurred. Specifically, he asks this court to address whether the Commonwealth contractually agreed not to use this conviction to enhance subsequent DUI charges committed after five years, which was in exchange for Lewis agreeing to plead guilty to his 2009 DUI. Lewis also argues in his appellant brief that retroactive application of ten-year lookback period in KRS 189A.010(5) violated his rights to equal protection.
Before we discuss the merits of Lewis's arguments, however, we must address his non-compliance with CR 76.12. Under CR 76.12(4)(c)(v), an appellant's brief is to contain "ample supportive references to the record[.]" Lewis's brief does not contain any citations to the record. "[I]t is not the job of this or any appellate court to scour a vast record to determine whether that record indeed supports a party's assertions." Walker v. Commonwealth, 503 S.W.3d 165, 171 (Ky. App. 2016). The lack of citations is troublesome in this case because Lewis's appellant brief contains an attachment that he purports to be his 2009 plea agreement. However, we are unable to locate this document in the actual record. "Matters not disclosed by the record cannot be considered on appeal." Montgomery v. Koch, 251 S.W.2d 235, 237 (Ky. 1952).
Kentucky Rules of Civil Procedure. --------
Lewis also failed to comply with the requirement in CR 76.12(4)(c)(v) that each argument in an appellate brief contain an explicit statement of preservation. This rule's purpose "is not so much to ensure that opposing counsel can find the point at which the argument is preserved, it is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court[.]" Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). The lack of a statement of preservation is particularly problematic in this case because Lewis's motion to dismiss did not explicitly argue his indictment for DUI, fourth offense, should be dismissed on contractual or equal protection grounds. "Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only[.]" Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). In this case, we elect to ignore the deficiencies because it is clear Lewis's argument are either lacking in merit or unpreserved for appellate review.
II. ANALYSIS
In Jackson, 529 S.W.3d at 743, the Kentucky Supreme Court addressed an appeal in which the circuit court held that language in a plea agreement stating, accurately at the time, that the lookback period for DUI offenses was five years created an enforceable contract that the Commonwealth would not use these convictions to enhance DUI offenses committed after five years. In rejecting this argument, the Court stated the following:
Utilities Electrical Machine Corp. v. Joseph E. Seagram & Sons, 300 Ky. 69, 187 S.W.2d 1015, 1018 (1945), held that the meeting of the minds was "the most essential factor to constitute a binding contract." Objectively, we conclude from the language employed in the plea agreement that a reasonable person could not construe the intent of the boilerplate language parroting the statutory range of penalties for a DUI conviction as a promise by the Commonwealth limiting the future effect of the conviction so as to immunize the defendant forever thereafter from future legislative modifications of the look-back period. That clearly is not the purpose of the language relied upon; and if indeed such was the intent of the parties, then the expectation would be that such a crucial limitation would be prominently featured instead of being embedded ambiguously in an informational provision whose primary purpose is to explain the range of penalties applicable to the specific conviction.Id. at 744-45. Based on this language, Lewis argues he is entitled to an evidentiary hearing to determine if he and the Commonwealth had a subjective intent during his 2009 plea agreement that this conviction would not be used to enhance subsequent DUI offenses after five years. Unfortunately, Lewis does not explain how this argument was preserved for appellate review. At best, Lewis's entrapment by estoppel claim preserved his argument that the terms of his 2009 plea agreement constituted a contract that the Commonwealth would not use this conviction to enhance subsequent DUI offenses after five years. Assuming this argument was even preserved, we hold it lacks merit.
Similarly, from a subjective perspective, we are not persuaded that either the defendants, defense counsel, the prosecutors, or the presiding judge left the courtroom after completing the guilty pleas with the belief that the plea agreement had locked-in the statutory five-year look-back period. Realistically, that concern, if it existed at all, was not part of the agreement.
A court may consider extrinsic evidence when interpreting a contract only when the contract is ambiguous or silent on a vital matter. Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. App. 2002). Otherwise, the intention of the parties is determined by the four corners of the document. Id. "A contract is ambiguous if a reasonable person would find it susceptible to different or inconsistent interpretations." Id. "[A]n otherwise unambiguous contract does not become ambiguous when a party asserts—especially post hoc, and after detrimental reliance by another party—that the terms of the agreement fail to state what it intended." Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 107 (Ky. 2003). Lewis did not explain how his 2009 plea agreement was ambiguous. Accordingly, an evidentiary hearing to determine if the Commonwealth was contractually precluded from prosecuting Lewis for DUI, fourth offense, would be inappropriate.
Regarding Lewis's argument that retroactive application of ten-year lookback period in KRS 189A.010(5) violated his rights to equal protection, this argument was never raised before the trial court. "An appellate court is without authority to review issues not raised in or decided by the trial court." Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) (citation and quotation omitted). As a result, Lewis is not entitled to a favorable appellate ruling on this issue.
III. CONCLUSION
Based on the foregoing, the judgment and sentence of the Muhlenberg Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Ryan Bennett Driskill
Greenville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Mark D. Barr
Assistant Attorney General
Frankfort, Kentucky