FROM JEFFERSON CIRCUIT COURT HONORABLE ANGELA MCCORMICK
BISIG, JUDGE ACTION NO. 16-CI-003825
Gregory D. Simms Louisville, Kentucky BRIEF FOR APPELLANT
Beshear Attorney General of Kentucky Michael J. O'Connell
David A. Sexton Assistant Attorney General Louisville,
Kentucky BRIEF FOR APPELLEES
COMBS, JONES, AND NICKELL, JUDGES.
Blaire Phillips, appeals an order of the Jefferson Circuit
Court denying her petition for a writ of mandamus against
Appellee, Jefferson District Court Judge Anne Delahanty.
Finding no error, we affirm the order of the Jefferson
was charged with Driving Under the Influence
("DUI"), First Offense in October of 2010. The
following July, Blaire pleaded guilty to DUI, First Offense,
Aggravated, and signed and entered an AOC Guilty Plea form.
By that form, Blaire was informed that her guilty plea would
make her susceptible to KRS 189A.010(5), which enhances
penalties for subsequent DUI offenses committed within a
specified time frame, referred to as a "look-back"
period. At the time Blaire pleaded guilty, the look-back
period under KRS 189A.010(5) was five years.
April 9, 2016, Governor Bevin signed SB 56 into law. SB
56 amended the look-back period in KRS 189A.010(5) from five
years to ten years. Six days later, Blaire was arrested in
Jefferson County and again charged with DUI, First Offense.
In May of 2016, the Commonwealth moved to amend the charges
against Blaire to DUI, Second Offense, in light of the recent
amendment to the look-back period in KRS 189A.010(5). Blair
opposed the Commonwealth's motion to amend, contending
that in seeking to apply the amended look-back period, the
Commonwealth was attempting to alter the terms of her
previously- entered plea agreement. Additionally, Blaire
contended that the Commonwealth's attempt to apply the
new look-back period violated the
Boykin requirement that all plea agreements be
made knowingly, intelligently, and voluntarily and that
applying the ten-year look-back period violated principles
against ex post facto application of laws and KRS
446.080(3). Judge Delahanty granted the
Commonwealth's motion to amend the charges in August of
2016. Consistent with the amended charge, the Commonwealth
moved the district court for pretrial suspension of
Blaire's driver's license. Blaire requested a
continuance and filed a petition for writ of mandamus with
the Jefferson Circuit Court on August 10, 2016.
petition for mandamus and accompanying memorandum of law
contended that a writ was appropriate because Judge Delahanty
had erroneously interpreted and applied SB 56 as retroactive.
Blaire contended that she would suffer an irreparable injury
if the district court entered a pretrial suspension of her
driver's license and that she had no adequate remedy by
way of appeal, as a successful appeal would not
"un-suspend" her driver's license for the
pretrial period. Accordingly, Blaire requested a writ
requiring Judge Delahanty to refrain from applying the
ten-year look-back period to her DUI charge.
Commonwealth responded to Blaire's petition on August 30,
2016. In its response, the Commonwealth contended that the
circuit court should dismiss Blaire's petition as it
failed to set forth the mandatory prerequisites for a writ of
mandamus. As additional grounds for dismissal of Blaire's
petition, the Commonwealth noted that Blaire was arguing that
application of SB 56 was unconstitutional but had failed to
notify the Attorney General of her claims, as required by KRS
418.075(1) and CR 24.03. The Commonwealth further contended
that Blaire's underlying substantive claims were
unmeritorious, as there was nothing about the application of
SB 56 to the facts of Blaire's case that constituted
impermissible retroactivity or constituted a violation of the
ex post facto clauses.
hearing on the petition for writ of mandamus was held on
December 5, 2016. At the hearing, Blaire's counsel argued
that allowing the Commonwealth to apply SB 56 to enhance
Blaire's DUI charge was tantamount to allowing the
Commonwealth to renege on promises it had made in
Blaire's plea agreement. While reiterating the contention
that pretrial suspension of Blaire's license would
constitute irreparable injury, Blaire's counsel
additionally contended that irreparable injury was not needed
in this instance, as a substantial miscarriage of justice
would occur if Judge Delahanty was permitted to apply SB 56
to Blaire's charges. Counsel noted that other divisions
of Jefferson District Court had not been applying SB 56 in
the same way that Judge Delahanty was, which created
inconsistency in the law. The Commonwealth maintained its
argument that a writ was an inappropriate remedy in this case
and that Blaire's substantive claims lacked merit.
circuit court entered an order denying Blaire's petition
for a writ of mandamus on December 7, 2016. Therein, the
circuit court found that Blaire had an adequate remedy by way
of appeal, if and when she was convicted on the DUI charge,
and that pre-trial suspension of Blaire's driver's
license did not amount to a level of injury necessitating a
writ of mandamus. Accordingly, the circuit court concluded
that issuance of a writ would be inappropriate. The circuit
court also briefly addressed Blaire's ...