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Phillips v. Delahanty

Court of Appeals of Kentucky

February 23, 2018



          Gregory D. Simms Louisville, Kentucky BRIEF FOR APPELLANT

          Andy Beshear Attorney General of Kentucky Michael J. O'Connell David A. Sexton Assistant Attorney General Louisville, Kentucky BRIEF FOR APPELLEES



          JONES, JUDGE

         Appellant, 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 Circuit Court.

          I. Background

         Blaire 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[1] 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.[2]

         On April 9, 2016, Governor Bevin signed SB[3] 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[4] 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).[5] 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.

         Blaire's 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.

         The 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[6] 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.

         A 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.

         The 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 ...

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