Opinion
NO. 2013-CA-001687-MR
04-29-2016
MICHAEL SPRAGUE APPELLANT v. HONORABLE DIANA WHEELER AND COMMONWEALTH OF KENTUCKY APPELLEES
BRIEFS FOR APPELLANT: Robert C. Yang Assistant Public Advocate Frankfort, Kentucky Jessica K. Schulte Assistant Public Advocate LaGrange, Kentucky BRIEF FOR APPELLEE: Perry R. Arnold Special Assistant Attorney General Bedford, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TRIMBLE CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 13-CI-00068 OPINION
REVERSING AND REMANDING BEFORE: DIXON, JONES AND VANMETER, JUDGES. DIXON, JUDGE: Appellant, Michael Sprague, appeals from an order of the Trimble Circuit Court granting the Commonwealth's motion for a Writ of Prohibition and ordering the Trimble District Court to not accept Appellant's three simultaneous guilty pleas to Driving Under the Influence (DUI), third offense. For the reasons set forth herein, we reverse and remand the matter to the district court for further proceedings.
Appellant was convicted of DUI, first offense, on March 24, 2011, in Franklin County, and of DUI, second offense, on June 14, 2012, in Carroll County. During the interim of the two convictions, Appellant was arrested on November 26, 2011, and charged with DUI, third offense. The record indicates that the proceedings associated with the November 2011 DUI charge continued over numerous months due to Appellant's repeated failure to appear as well as to his counsel's various discovery motions. Prior to any resolution on the November 2011 third offense, Appellant was arrested on July 9, 2012, and August 4, 2012, and charged each time for DUI, third offense. Subsequently, on September 13, 2012, Appellant was again arrested and charged with DUI, fourth offense.
Shortly before the trial on the November 2011 charge, Appellant disappeared and was not located until the following April. Thereafter, on April 2, 2013, Appellant was arrested and served with a warrant for the November 2011 charge as well as warrants for the additional three pending charges.
Appellant appeared in the Trimble District Court on April 10, 2013, and was appointed counsel. Counsel requested that Appellant be allowed to enter four simultaneous pleas to DUI, third offense, since he only had two prior convictions. The district court indicted that it would accept a simultaneous plea to the three DUI, third offense charges, but could not accept a plea as to the DUI, fourth offense because it was a felony charge. As such, the district court stated that after it accepted the three pleas, it would hold a preliminary hearing on the DUI, fourth offense charge.
The Commonwealth then filed a petition in the Trimble Circuit Court for a Writ of Prohibition arguing that the district court lacked jurisdiction to accept the simultaneous pleas because the second and third plea would necessarily be for a fourth and fifth DUI offense, both of which are felonies. The Commonwealth argued that based upon Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), a guilty plea constitutes a conviction, and that the district court was required to engage in a plea colloquy with Appellant before each plea. Thus, when Appellant entered his first guilty plea he would then have a conviction for DUI, third offense. The district court would necessarily be prohibited from accepting the other pleas because the offenses would be felonies.
The Commonwealth alternatively argued that the district court would be acting erroneously within its jurisdiction by accepting three pleas to DUI, third offense because it is the number of convictions that controls enhancement, not the sequence of arrests. Citing to Royalty v. Commonwealth, 749 S.W.2d 700 (Ky. App. 1988), and an unpublished opinion of this Court in Commonwealth v. Ballinger, 2011-CA-001248-MR (September 28, 2012), the Commonwealth asserted that Appellant did not have to be convicted of the prior offense before being arrested on the subsequent offense, only that he have a prior conviction before the subsequent offense was adjudicated.
The Kentucky Supreme Court granted discretionary review of the Ballinger decision on August 21, 2013, and rendered an opinion affirming on May 14, 2015. --------
On August 15, 2013, the circuit court entered an order granting the Writ of Prohibition. The circuit court concluded that the district court would be acting outside of its jurisdiction if it allowed Appellant to enter simultaneous guilty pleas to three charges of DUI, third offense, "as they could constitute a third, fourth, and higher, conviction . . . the latter of which would be a felony level matter, which is outside the jurisdiction of the District Court." The circuit court explained:
This Court agrees with the County Attorney in its interpretation of Boykin v. Alabama, citation omitted, wherein a "guilty plea" constitutes a conviction.Finally, the circuit court concluded that the Writ was appropriate because the county attorney would have no right of appeal once the district court adjudicated the DUIs. Appellant thereafter appealed to this Court.
This Court has, in the past, in other unrelated cases, relied upon this very principal in its decisions as to whether a guilty plea constitutes a conviction. In addition, a conviction is defined in Black's Law Dictionary as including a guilty plea.
In Commonwealth v. Peters, 353 S.W.3d 592 (Ky. 2011), the Kentucky Supreme Court set forth the standard to be used when reviewing a lower court's grant or a denial of a writ of prohibition:
Whether to grant or deny a writ of prohibition is within the sound discretion of the court with which the petition is filed. Haight v. Williamson, 833 S.W.2d 821, 823 (Ky.
1992). Thus, this decision is ultimately reviewed by an appellate court for abuse of discretion. However, if the basis for the grant or denial involves a question of law, the appellate court reviews this conclusion de novo. Rehm v. Clayton, 132 S.W.3d 864, 866 (Ky.2004). If the court with which the petition is filed bases its ruling on a factual determination, this finding of fact is reviewed for clear error. Grange [Mut. Ins. Co. v. Trude], 151 S.W.3d [803] at 810 [(Ky.2004)].Peters, 353 S.W.3d at 595. With this standard in mind, we turn to Appellant's argument that the circuit court erred by issuing the Writ of Prohibition.
"A writ of prohibition or mandamus is an extraordinary form of relief and should not freely be granted." Riley v. Gibson, 338 S.W.3d 230, 233 (Ky. 2011). To qualify for this extraordinary remedy, a petitioner must satisfy the standard set forth in Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004):
A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.In determining whether to issue a writ preventing the trial court from acting outside of its jurisdiction, the existence of a remedy by appeal is a relevant, but not controlling, factor. Id. at 9. On the other hand, "if the petition allege[s] only that the trial court [is] acting erroneously within its jurisdiction, a writ would issue only if it [is] shown that there was no adequate remedy by appeal and great injustice and irreparable harm would otherwise occur." Id. at 9.
Appellant contends that the circuit court erred in finding both that the district court would be acting outside of its jurisdiction by accepting the simultaneous pleas and that the Commonwealth has no adequate remedy by appeal. As previously noted, the later is relevant, but not dispositive. The Commonwealth argues, as it did below, that the district court was required to accept each plea separately and that upon entry of the first guilty plea, Appellant would then have three convictions for driving under the influence within five years. Thus, any subsequent plea would have been to a felony charge, which is outside the jurisdiction of the district court.
Contrary to the Commonwealth's argument, we do not read Boykin v. Alabama as requiring separate plea colloquies for each and every charge. In fact, in Rigdon v. Commownealth, 144 S.W.3d 283, 289 (Ky. App. 2004), a panel of this Court held that the acceptance of simultaneous guilty pleas from separate defendants indicted on unrelated cases was not violative of Boykin so long as they understood the rights they were waiving and understood the charges against them.
Clearly, the district court has exclusive jurisdiction over misdemeanor cases in Kentucky. Kentucky Revised Statutes (KRS) 24A.110. The Commonwealth has cited to no provisions, and we find none, prohibiting the district court from accepting simultaneous pleas to misdemeanor charges; in fact, it appears to be common practice across the Commonwealth. DUI charges are not treated differently than any other misdemeanor charges in district court. Accordingly, we are of the opinion that the district court was not acting outside of its jurisdiction in expressing its intent to accept simultaneous pleas.
However, we agree with the circuit court that the trial court would have been acting erroneously within in its jurisdiction by accepting three pleas to DUI, third offense. In Beard v. Commonwealth, 275 S.W.3d 205 (Ky. App. 2008), a panel of this Court interpreted KRS 189A.010(5) as requiring a "conviction-to-offense sequence" for DUI offense enhancement, i.e., the subsequent offense must occur after the conviction for the prior offense. Id. at 208. However, our decision in Ballinger held otherwise. Now, the Supreme Court has affirmed our decision in Ballinger v. Commonwealth, 459 S.W.3d 349 (Ky. 2015) determining,
. . . the General Assembly has expressed its intent that predicate offenses for DUI enhancement purposes must be "prior" offenses—offenses occurring within the five years immediately preceding the commission of the current offense—and furthermore, as the statute goes on to say, predicate offenses include all such prior offenses which have resulted in conviction by the time of the current conviction. Thus, neither the "conviction-to-offense" nor the "conviction-to-conviction" approach is accurate under the current statutory scheme. Instead there is a two-part inquiry. First, was the alleged predicate offense committed within the five-year period preceding the commission of the current offense? If the answer is "yes," the next question is simply whether the conviction for that prior offense was entered prior to the defendant's conviction for the current offense by either guilty plea or verdict. Both inquiries must be answered affirmatively in order for the prior offense to qualify as a predicate offense for an enhanced DUI.Id. at 357. Here, they are.
We nevertheless must disagree with the Commonwealth that it does not have an adequate remedy on appeal.
Section 115 of the Kentucky Constitution gives the Commonwealth the right to one appeal in all criminal cases except where such an appeal would otherwise violate the constitution: "In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the Commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law...." The exception merely states that the Commonwealth's right to appeal is limited by double jeopardy principles. See Commonwealth v . Brindley, Ky., 724 S.W.2d 214, 216 (1986). Other than the exception, Section 115 does not distinguish between the appellate authority given to the defense and the Commonwealth in criminal cases. Clearly , Section 115 encompasses a defendant's right to appeal a sentence entered upon conviction. Therefore , the Commonwealth has the same right unless the appeal of a defendant's sentence should be considered an "appeal from a judgment of acquittal."Collins v. Commonwealth, 973 S.W. 2d 50, 52-53 (Ky. 1998) (emphasis added). Thus, the Commonwealth has not lost its right to appeal Sprague's sentencing. Consequently, the Commonwealth's petition for a writ of prohibition must fail.
For the reasons set forth herein, the order of the Trimble Circuit Court issuing the Writ of Prohibition is reversed and this matter is remanded to the Trimble District Court for further proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert C. Yang
Assistant Public Advocate
Frankfort, Kentucky Jessica K. Schulte
Assistant Public Advocate
LaGrange, Kentucky BRIEF FOR APPELLEE: Perry R. Arnold
Special Assistant Attorney General
Bedford, Kentucky