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Commonwealth v. Jackson

Supreme Court of Kentucky

September 28, 2017

COMMONWEALTH OF KENTUCKY APPELLANT
v.
JOSHUA DEANTE JACKSON APPELLEE AND COMMONWEALTH OF KENTUCKY APPELLANT
v.
TELLY SAVALAS DENSON APPELLEE

         ON APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN GRISE, JUDGE Nos. 16-CR-00635, 16-CR-00645

          COUNSEL FOR APPELLANT: Andy Beshear Attorney General Perry Thomas Ryan Assistant Attorney General

          COUNSEL FORAPPELLEES: Steven Jared Buck Assistant Public Advocate Department of Public Advocacy

          COUNSEL FOR AMICUS CURIAE KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS: James David Niehaus, Joshua Michael Reho Advocacy Plaza

          OPINION OF THE COURT BY JUSTICE VENTERS

         In April 2016, the Governor signed into law SB 56, which amended KRS 189A.010, Kentucky's principal driving under the influence of alcohol (DUI), y statute. Subsection (5) of KRS 189A.010 provides substantially enhanced penalties for subsequent DUI offenses committed within a specified time frame, which we refer to as the "look-back" period. Subsequent offenses committed after the look-back period are not subject to enhancement.

         The 2016 amendment increased the look-back period from five years to ten years. By the terms of the bill, the new ten-year look-back period went into effect immediately. Obviously, the expanded ten-year look-back period will capture more prior DUI offenses than the former five-year period. Correspondingly, the additional five years during which DUI offenses can serve as penalty-enhancing prior offenses means that more DUI offenders with prior DUI convictions will be subject to enhanced sentences.

         A unique issue, created by the 2016 amendment of the look-back period, arises in the cases now before this Court. In separate prosecutions in the Warren Circuit Court, Joshua Deante Jackson and Telly Sayalas Denson were charged with DUI, Fourth Offense, for offenses that occurred after the newly-amended version of KRS 189A.010 became effective. Both defendants had prior convictions for DUI offenses including one committed more than five years but less than ten years prior to his current, and thus beyond the five-year look-back period of the former law, but within the ten-year look-back period of the current law.

         The circuit court held that the convictions exceeding the former five-year look-back period could not be used to elevate the current DUI charges to DUI, Fourth Offense. The Commonwealth appealed to the Court of Appeals.

         i

          Recognizing the matter as one of "great and immediate public importance, " pursuant to CR 74.02, we accepted transfer of the appeal.

         For the reasons explained below, we conclude that the trial court erred by excluding Jackson's 2009 and Denson's 2011 offenses from use as enhancing prior DUI convictions.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         As noted above, the Commonwealth charged each defendant with DUI,

Fourth Offense, and the offense was committed after the 2016 revision of KRS 189A.010. As predicates for the DUI, Fourth Offense, charges, Jackson and Denson each had at least three prior DUI convictions, two of which were committed within five years of the current charge, but one of which preceded the current offense by more than five years, but less, than ten years. Jackson's applicable charge was incurred October 9, 2008, in Warren County and he entered his guilty plea on March 3, 2009; Denson's applicable charge was incurred August 26, 2010, in Bullitt County and he pled guilty to the charge on March 2, 2011.

         As pertinent here, Jackson's 2009 DUI conviction and Denson's 2011 DUI conviction were each based upon a written plea agreement that included the following standardized language:

5. ... Should I be convicted of. additional DUI offenses or operating on a suspended license offenses, penalties will be ...

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