Opinion
NO. 2016-CA-001606-MR
06-01-2018
MONTY PERRIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCLEAN CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 16-CR-00043 OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND THOMPSON, JUDGES. JONES, JUDGE: Monty Perrin appeals from an order of the McLean Circuit Court denying his motion challenging the application of the ten-year look-back period contained in the amended KRS 189A.010 to enhance his driving under the influence (DUI) charge to a felony fourth offense. Perrin entered a conditional guilty plea to the DUI, fourth offense, along with other offenses, reserving his right to appeal. For the reasons set forth herein, we affirm.
Kentucky Revised Statutes.
I.
Perrin was arrested on June 27, 2016, and was charged with theft by unlawful taking under $500; operating a motor vehicle under the influence, second offense; driving on DUI suspended license; first-degree fleeing or evading police; possession of drug paraphernalia; and first-degree wanton endangerment. Upon discovering Perrin had three prior DUI convictions within the past ten years, the Commonwealth amended the DUI charge to a DUI, fourth offense, in accordance with the amended version of KRS 189A.010. Perrin's three prior DUI convictions were entered in 2007, 2008, and 2014. At the time of those convictions, the look-back period under KRS 189A.010(5) was five years. However, effective April 9, 2016, KRS 189A.010(5) increased the look-back period to ten years.
Perrin filed a motion to dismiss the felony DUI charge, or in the alternative, to amend it to a DUI, second offense. The trial court denied this motion. Perrin then entered a conditional guilty plea to DUI, fourth offense, aggravator; first-degree fleeing or evading police; theft by unlawful taking under $500; possession of drug paraphernalia; operating a motor vehicle without a license; and being a second-degree persistent felony offender. He reserved his right to appeal the trial court's denial of his motion relating to the DUI charge. He was sentenced to seven years' imprisonment. This appeal followed.
This appeal was held in abeyance pending the Supreme Court of Kentucky's decisions in Commonwealth v. Jackson, 2016-SC-00530, and Commonwealth v. Denson, 2016-SC-00531. That consolidated opinion became final on October 19, 2017. --------
II.
Perrin asserts on appeal that the trial court erred when it applied the ten-year look-back period. He contends that the application of the amended statute to capture any DUI convictions beyond five years (as was the law prior to the amendment) violates: (1) the Contract Clause; (2) the principles of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); and (3) the prohibition against ex post facto laws.
All three of Perrin's arguments have been addressed and rejected by the Kentucky Supreme Court. See Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017). In Jackson, the Court held that although plea agreements are contracts, any reference to the prior five-year look-back period was "not intended to constitute an immunization" from statutory changes to the DUI statute. Id. at 745. In regard to the ex post facto violation, the Court held that the amended statute does not create a new offense, but simply imposes different penalties based on the status of the defendant. Id. at 746 (citing Commonwealth v. Ball, 691 S.W.2d 207 (Ky. 1985)). Lastly, the Court held that the requirements of Boykin are not violated when unforeseeable legislative changes occur long after the plea colloquy took place. Id. at 747.
We have reviewed the record in this case in light of the Kentucky Supreme Court's holdings in Jackson. Having done so, we are confident that the trial court correctly determined that the ten-year look-back period contained in the amended version of KRS 189A.010(5) applied in this case.
Based on the foregoing, the order of the McLean Circuit Court is affirmed.
ACREE, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Steven J. Buck
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky