Released for Publication June 4, 2015.
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2011-CA-001248-MR. WARREN CIRCUIT COURT NO. 11-CR-00028.
COUNSEL FOR APPELLANT: Shannon Renee Dupree, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, Heather Michelle Fryman, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE ABRAMSON. All sitting. All concur, except Keller, J., not sitting. Noble, J., concurs by separate opinion.
Kentucky Revised Statute (KRS) 189A.010, the Driving Under the Influence (DUI) statute, outlaws the operation or physical control of a motor vehicle under a number of circumstances the General Assembly has determined pose a substantial risk of impaired driving. Any person who violates those proscriptions is subject, for a first offense, to a fine between $200 and $500, to incarceration in the county jail for anywhere from two to thirty days, or in lieu of fine or incarceration to two to thirty-days service in a community labor program. KRS 189A.010(5)(a). For subsequent offenses within five years of the first one, the penalties become gradually more severe, until " [f]or a fourth or subsequent offense within a five (5) year period, [the offender will] be guilty of a Class D felony." KRS 189A.010(5)(d). The question before us is what counts as a predicate offense for purposes of the DUI penalty enhancement provisions. Are predicate offenses limited to those that have resulted in a conviction before the new offense was committed (sometimes referred to as the conviction-to-offense approach), or may any conviction be counted, regardless of when the offense occurred (provided that it did not occur more than five years before the current offense) so long as the conviction was entered prior to the conviction in the current case (sometimes referred to as the conviction-to-conviction approach)? Unfortunately, this Court has rendered opinions suggesting support of both approaches, and thus has given rise to confusion and inconsistent results in the Court
of Appeals. We accepted discretionary review in this case to clarify how the enhanced penalty provisions of KRS 189A.010(5) should be applied.
This case began on September 14, 2010 when the defendant, Matthew Ballinger, was arrested in Bowling Green and charged with DUI. A record check revealed that Ballinger had been convicted of DUI in April 2003 (offense in March 2003), in October 2004 (offense in May 2004), and in June 2008 (offense in July 2006). Because predicate offenses are limited to those committed within five years of the current offense, by September 2010 the 2003 and 2004 convictions no longer counted as predicates. The 2006 offense did still qualify, though, and accordingly Ballinger was initially charged in the Warren District Court with DUI second offense.
The record check also revealed, however, that in July 2010, Ballinger had twice been charged with DUI in the Barren District Court, one offense in mid-July, it appears, and the other at the end of the month. The Warren County Attorney, therefore, requested that the September Warren County charge be continued pending the outcome of the Barren County proceedings, and she refused several offers by Ballinger to plead guilty to the DUI second offense charge.
On December 20, 2010, Ballinger pled guilty to both of the Barren County charges, whereupon the Commonwealth sought and was given an indictment against Ballinger in Warren County for DUI fourth offense, a felony, the two new Barren County convictions counting, according to the Commonwealth, as Ballinger's second and third predicate convictions. Upon transfer of the matter to the Warren Circuit Court, Ballinger promptly moved to have it sent back to district court, on the ground that the December Barren County convictions were not eligible predicates because they were entered after he committed the September Warren County offense.
The circuit court agreed with Ballinger, citing Fulcher v. Commonwealth, 149 S.W.3d 363 (Ky. 2004). Fulcher was not a DUI case, but in the course of construing the penalty provisions of KRS 250.991(2), a statute pertaining to the possession of anhydrous ammonia, this Court remarked in a footnote that KRS 189A.010(5) " appears to" adopt the " conviction-to-offense" approach. 149 S.W.3d at 380 n.3. Seizing on this footnote, the circuit court construed
KRS 189A.010(5) as a " conviction-to-offense" enhancement statute, under which the two post-offense Barren County convictions could not be used as predicates to enhance Ballinger's September DUI. Thus, the trial court concluded Ballinger could only be charged and convicted of DUI second offense.
The Commonwealth appealed, and the Court of Appeals reversed. In a unanimous opinion, the appellate panel discounted the Fulcher footnote as non-binding dicta and relied instead on Royalty v. Commonwealth, 749 S.W.2d 700 (Ky. App. 1988), a case in which the Court of Appeals construed an earlier version of KRS 189A.010 as providing for a " conviction-to-conviction" enhancement scheme. In that case, the Court of Appeals upheld a DUI third offense conviction where the enhanced offense occurred prior to the alleged predicate offense, but was still pending when the predicate offense resulted in a conviction. Under the Royalty " conviction-to-conviction" scheme, the appellate panel in this case held Ballinger's two Barren County convictions are eligible predicate offenses because the convictions were entered prior to the resolution of the Warren County charge.
Royalty, the case upon which the appellate panel relied, relied in turn on this Court's Opinion in Commonwealth v. Ball, 691 S.W.2d 207 (Ky. 1985). Ball addressed whether the recently enacted KRS 189A.010 (a statute that came into effect in 1984 as part of what was then referred to as " the slammer bill" ) defined a new crime subject to ex post facto restrictions on what could be considered a prior offense, as the defendant maintained, or merely recodified and revised somewhat the already existing crime of driving under the influence, so that prior offenses under former versions of the law would still ...