FROM BOONE CIRCUIT COURT HONORABLE RICHARD A. BRUEGGEMAN,
JUDGE INDICTMENT NO. 16-CR-00557
FOR APPELLANT: Steven J. Buck Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark
D. Barry Assistant Attorney General Frankfort, Kentucky
BEFORE: JONES, J. LAMBERT, AND THOMPSON, JUDGES.
LAMBERT, J., JUDGE
Power entered a conditional plea in the Boone Circuit Court
to a fourth offense of driving under the influence of alcohol
or drugs ("DUI") within a ten-year period. Power
appeals the judgment based upon that plea which sentenced him
to two years' imprisonment. After reviewing the record
and applicable legal authorities, we affirm the judgment of
the Boone Circuit Court.
was arrested for DUI on July 30, 2016. His other charges at
the time included operating on an expired license and failure
to produce an insurance card. Power's prior DUI
convictions occurred in 2007, 2012, and 2014. Because this
was his fourth arrest in a ten-year period, Power was
indicted as a felon under the then recently amended
(effective April 9, 2016) Kentucky Revised Statute (KRS)
189A.010(5)(d), which states:
person who violates the provisions of paragraph (a), (b),
(c), (d), or (e) of subsection (1) of this section shall:
For a fourth or subsequent offense within a ten (10) year
period, be guilty of a Class D felony. If any of the
aggravating circumstances listed in subsection (11) of this
section are present, the mandatory minimum term of
imprisonment shall be two hundred forty (240) days, which
term shall not be suspended, probated, conditionally
discharged, or subject to any other form of release[.]
to the amendment, the "look back" period for DUIs
was five years, which would have eliminated Power's 2007
conviction for enhancement purposes on the July 2016
offense. Accordingly, Power filed a motion to
suppress the 2007 conviction, arguing, as he does here, that
its use was violative of contractual promises made in the
2007 plea agreement; that it was violative of the protections
ensured by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274 (1969), and Kentucky Rule of Criminal
Procedure (RCr 8.08), that a guilty plea be made
"voluntarily with understanding of the nature of the
charge"; and that the ten-year rather than five-year
"look back" period was violative of the
constitutional protections (both federal and
state) against ex post facto law.
acknowledges that these identical issues were raised before
and rejected by the Kentucky Supreme Court in
Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017).
However, he urges this Court to "express its opinion if
it views the law differently."
decline this invitation. "[T]his Court is bound by
established precedents of the Kentucky Supreme Court.
[Supreme Court Rule (SCR)] 1.030(8)(a). The Court of Appeals
cannot overrule the established precedent set by the Supreme
Court or its predecessor court." Smith v.
Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000) (citing
Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky.
1986)). Furthermore, the Court of Appeals has since rendered
the published decisions of Phillips v. Delahanty,
544 S.W.3d 652 (Ky. App. 2018); and Martin v.
Commonwealth, ____ S.W.3d ___, 2017-CA-001187-MR, 2018
WL 4261864 (Ky. App. 2018) (Opinion Final Oct. 18, 2018).
These as well as numerous unpublished decisions have followed
the precedent set by Jackson, supra. We
shall not accept the invitation to address the arguments any
judgment of the Boone ...