Opinion
NO. 2016-CA-001902-MR
10-12-2018
RODNEY DALE SEXTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND II, JUDGE
ACTION NO. 16-CR-00472 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND THOMPSON, JUDGES. DIXON, JUDGE: Rodney Dale Sexton appeals the judgment of the Boone Circuit Court entered upon a conditional guilty plea convicting him of operating a motor vehicle under the influence (DUI), fourth offense. After careful review, we affirm.
In July 2016, Sexton was indicted by a Boone County grand jury on multiple charges, including fourth-offense DUI, arising out of an incident that occurred on June 14, 2016. At the time of the indictment, Sexton had previously been convicted of DUI in 2010, 2015, and 2016. On April 9, 2016, amendments to KRS 189A.010 became effective and expanded the lookback period for DUI penalty enhancement from five years to ten years. Since Sexton's July 2016 offense occurred after the amendments to KRS 189A.010 took effect, his 2010 conviction was included in the ten-year lookback period. Sexton filed a motion to amend the indictment, arguing the retroactive application of the amended statute violated ex post facto principles and violated his rights under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The trial court denied Sexton's motion, and he subsequently entered a conditional guilty plea to DUI, fourth offense.
On March 15, 2017, this Court granted Sexton's motion to hold this appeal in abeyance pending the Supreme Court of Kentucky's decision in Commonwealth v. Jackson, 2016-SC-00530-TG, and Commonwealth v. Denson, 2016-SC-00531-TG. Jackson and Denson were each convicted of DUI, fourth offense, after the effective date of the amendment to KRS 189A.010. On October 19, 2017, the Supreme Court's consolidated opinion in those cases, Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017), became final.
Sexton raises arguments on appeal regarding contract law, due process, and the prohibition against ex post facto laws; however, he acknowledges those arguments were all analyzed and subsequently rejected by the Kentucky Supreme Court in Jackson. The Commonwealth correctly points out Sexton failed to raise his contract law argument below; consequently, the trial court was not given an opportunity to consider it. "The function of the Court of Appeals is to review possible errors made by the trial court, but if the trial court had no opportunity to rule on the question, there is no alleged error for this court to review." Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985). As a result, we are unable to review Sexton's contract law argument on appeal.
At the outset, we point out that this Court "is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court." SCR 1.030(8)(a). Jackson is dispositive of the issues presented in this appeal. In Jackson, the Court rejected the argument that retroactive application of the amended statute violated Boykin, explaining:
The fact that subsequent legislative measures may unforeseeably alter the consequences and effects of the criminal conviction does not take the plea retrospectively outside the scope of the Boykin requirements. A plea entered without knowledge of unanticipated and unforeseeable consequences that may not become manifest for many years does not have the constitutional significance of a plea entered without knowledge of its immediate foreseeable consequences, or in ignorance of the fundamental rights to remain silent, to a jury trial, and to confront witnesses. Thus, we are unpersuaded that the defendants' 2009 and 2011 guilty pleas, undertaken in ignorance of legislative changes years in the future, fall within the scope of Boykin.Jackson, 529 S.W.3d at 747.
The Jackson Court also concluded that application of the amended statute did not violate ex post facto principles:
The defendants' 2016 DUI offenses were committed after the effective date of the 2016 amendment of KRS 189A.010 extending the DUI prior offense look-back period from five years to ten years. They are not charged with a crime that was legal when committed but was rendered illegal by the 2016 amendment. Because their current crime was committed after the 2016 amendment, it cannot be said that the amendment aggravated or increased the punishment beyond the applicable punishment when the crime was committed. The 2016 amendment did not alter the rules of evidence to require less proof or different proof to convict than what was necessary when the crime was committed. Because the 2016 amendment was in effect when the crimes under review were committed, ex post facto principles cannot preclude its application to the crimes under review.Id. at 746.
After careful review, we conclude the issues raised by Sexton must be rejected pursuant to the reasoning set forth in Jackson. The trial court properly denied Sexton's motion to amend the indictment.
For the reasons stated herein, the judgment of the Boone Circuit Court is affirmed.
ACREE, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND WILL NOT FILE SEPARATE OPINION. BRIEF FOR APPELLANT: Steven J. Buck
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky