FROM LOGAN CIRCUIT COURT HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 16-CR-00233
FOR APPELLANT: Steven J. Buck Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Wm.
Robert Long, Jr. Assistant attorney General Frankfort,
BEFORE: JOHNSON, D. LAMBERT, AND J. LAMBERT, JUDGES.
Terrell Martin entered a conditional plea in the Logan
Circuit Court to a fourth offense of driving under the
influence of alcohol or drugs ("DUI") within a
ten-year period. Martin now appeals the judgment based upon
that plea which sentenced him to four years'
imprisonment. After reviewing the record in conjunction with
the applicable legal authorities, we affirm the judgment of
the Logan Circuit Court.
was indicted for a series of offenses, including DUI fourth,
stemming from his arrest on August 12, 2016. Prior to this
current DUI charge, Martin had previously been convicted of
DUI in 2007, 2015, and 2016. On April 9, 2016, certain
amendments to Kentucky Revised Statutes ("KRS")
189A.010 went into effect. Pertinent to this appeal, there
was a substantive change to KRS 189A.010 which extended the
look-back period for enhancement of DUI penalties from a
period of five years to ten years. Because Martin's
August 2016 offense occurred after the effective date of the
amendment to KRS 189A.010, he was charged with DUI fourth
offense due to the inclusion of his 2007 DUI conviction in
calculating his prior offenses.
subsequently entered a conditional guilty plea to the DUI
fourth charge, reserving his right to appeal the issue of
whether the ten-year look-back period could be applied for
the purposes of imposing the mandatory penalty provisions of
KRS 189A.010(5)(d). He now appeals from the judgment based on
that plea, alleging a violation of his rights under contract
law, under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274 (1969), and under his constitutional
right to be free from the application of ex post
STANDARD OF REVIEW
plea agreements in criminal cases are contracts between the
accused and the Commonwealth, and are interpreted according
to ordinary contract principles." McClanahan v.
Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010)(citations
omitted). The interpretation of a contract is a question of
law to be determined de novo on appellate review.
Kentucky Shakespeare Festival, Inc. v. Dunaway, 490
S.W.3d 691, 695 (Ky. 2016).
Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017),
the Supreme Court of Kentucky thoroughly analyzed and
rejected each of the arguments Martin advances in this
appeal. Guided by the rationale set out in Jackson,
we first address Martin's contract argument in which he
maintains that because there was a five-year look-back period
at the time his previous plea agreements were entered, those
agreements were made with the understanding that the
convictions based on those pleas could not be used to enhance
any subsequent DUI offenses which occurred beyond a period of
five years. Only Martin's 2007 DUI conviction lies
outside the five-year look-back period and he argues that to
allow the Commonwealth to use that conviction for purposes of
enhancement of the 2016 charge violates his prior plea
agreement. However, in specifically addressing that
contention, the Jackson court decided otherwise:
It is also worth noting that, under the defendants'
theory, a DUI defendant who had incurred the same prior DUI
offenses on the same previous dates but who went to trial
instead of pleading guilty would have no cognizable claim to
the exemption from the 2016 amendment, while the similarly
situated defendant pleading guilty would be exempted. This
theory produces an absurd result, which further supports our