JEFFERY MULLINS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 2, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001371-MR
JEFFERY MULLINS
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 99-CR-00181
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, McANULTY, and SCHRODER, Judges.
COMBS, JUDGE:
Jeffery Mullins (“Mullins”) appeals from a
judgment of the Pike Circuit Court in which he was convicted of
driving under the influence of alcohol, third offense, and
operating a motor vehicle on a suspended license, second offense,
after entering a conditional plea of guilty pursuant to RCr1
8.09.
Mullins argues that the trial court improperly enhanced
his sentence because of a 1997 DUI conviction obtained by a
guilty plea that had not been entered knowingly, intelligently,
1
Kentucky Rule of Criminal Procedure
and voluntarily.
Having concluded that Mullins’s 1997 guilty
plea satisfied all constitutional requirements, we affirm.
On April 9, 1999, Officer Bruce Anderson of the
Pikeville Police Department stopped Mullins after observing him
operating his vehicle in the middle of Hambley Boulevard.
Mullins admitted to drinking alcoholic beverages, and he failed
every field sobriety test given to him.
He consented to a breath
test, which resulted in a .307 blood alcohol content.
Mullins
was arrested and indicted by the Pike County Grand Jury.
Mullins moved the trial court to suppress a conviction
for DUI, second offense, entered in Floyd District Court on
August 25, 1997. In support of his motion, Mullins alleged that
this conviction had not been knowingly, intelligently, or
voluntarily entered because the Floyd District Court failed to
advise him of his constitutional rights.
Additionally, Mullins
argued that the Floyd District Court also failed to inform him
that this conviction could be used to enhance a sentence imposed
for any future DUI convictions.
The trial court held a suppression hearing on April 24,
2000.
Mullins, the only witness to testify at this hearing,
admitted that he signed a form entitled “DUI (Guilty Plea),” but
he contended that he did not remember doing so.
Mullins also
testified that while he could not remember specifically whether
the Floyd District Judge reviewed his constitutional rights with
him, he believed that the Judge “probably did.”
At no time
during that proceeding was Mullins represented by counsel.
On
cross-examination, Mullins admitted that he pled guilty so that
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he could get out of jail and that he “messed up” and got caught
driving under the influence for the second time.
Mullins denied,
however, that the court explained to him that this guilty plea
could be used in the future to enhance a DUI sentence if he was
convicted on a subsequent DUI charge.
Based upon this testimony,
the trial court found that Mullins knew that he was pleading
guilty to the DUI charge at issue and that he knowingly,
intelligently, and voluntarily waived his constitutional rights.
Thus, the trial court denied Mullins’s motion, prompting his
guilty plea in this case.
This appeal follows.
A guilty plea must represent a voluntary and
intelligent choice among the alternative courses of action
available to a defendant.
North Carolina v. Alford, 400 U.S. 25,
91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Centers v. Commonwealth, Ky.
App., 799 S.W.2d 51, 54 (1990); Sparks v. Commonwealth, Ky. App.,
721 S.W.2d 726 (1986).
The trial court must determine that a
defendant’s guilty plea is intelligent and voluntary, and this
determination must appear in the record.
Boykin v. Alabama, 395
U.S. 238, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); Centers,
799 S.W.2d at 54.
The validity of a guilty plea is determined
from considering the totality of circumstances surrounding it.
Commonwealth v. Crawford, Ky., 789 S.W.2d 779, 780 (1990); Kotas
v. Commonwealth, Ky., 565 S.W.2d 445, 447 (1978).
“A guilty plea
that is brought about by a person’s own free will is not less
valid because he did not know all possible consequences of the
plea and all possible alternative courses of action.”
Jewell v.
Commonwealth, Ky., 725 S.W.2d 593, 594 (1987), quoting Turner v.
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Commonwealth, Ky. App., 647 S.W.2d 500, 501 (1983).
Boykin v.
Alabama, supra, does not require that a defendant be informed of
the range of sentences which may be imposed.
In fact, a knowing,
voluntary, and intelligent waiver does not include a requirement
that the defendant be informed of every possible consequence or
potential contingency of the guilty plea.
Turner v.
Commonwealth, Ky. App., 647 S.W.2d 500 (1982); Centers, 799
S.W.2d at 55 (1990).
Our review of the record reveals that it conclusively
refutes Mullins’s claim that he did not knowingly and
intelligently plead guilty on August 25, 1997.
The record
contains an AOC2 form styled “DUI (Guilty Plea)” signed by
Mullins.
The guilty plea form notified Mullins that if he pled
guilty, he would waive the following constitutional rights:
the
right against self-incrimination; the right to a speedy and
public trial with representation and the reasonable doubt
standard of proof; the right to cross-examine witnesses; the
right to produce evidence; and the right to appeal to a higher
court.
This form also listed the penalty ranges that the Floyd
District Court might impose.
By signing this form, Mullins
acknowledged that his guilty plea was knowingly, voluntarily, and
intelligently made.
At no time during the acceptance of
Mullins’s guilty plea was the Floyd District Court required to
inform Mullins that his guilty plea might some day serve as a
basis to enhance a future sentence if he were again convicted of
driving under the influence.
2
Administrative Office of the Courts
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Additionally, Mullins testified that he was aware of
his constitutional rights — specifically his rights to a trial by
jury, his entitlement to counsel, and the assurance that he could
not be convicted of the offense unless the Commonwealth proved
his guilt beyond a reasonable doubt.
Mullins’s admission that he
pled guilty in order to get out of jail and that he “messed up”
by getting caught clearly demonstrates that he voluntarily had
pled guilty on August 25, 1997, to the DUI charge at issue.
Therefore, we cannot find any evidence that Mullins’s guilty plea
was invalid.
Mullins also argues that the Floyd District Court
appointed a public defender to represent him during the August
1997 proceedings.
He alleges that the public defender failed to
appear when the guilty plea was entered.
does not support this contention.
The record before us
On the contrary, both the case
jacket and the docket sheet signed by Floyd District Judge James
R. Allen fail to indicate that counsel was appointed or retained
for any portion of those proceedings.
Additionally, at the
suppression hearing, Mullins admitted that he was never
represented by counsel during the proceedings in Floyd District
Court.
Therefore, this argument lacks credibility and is
consequently without merit.
The judgment of the Pike Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Benjamin C. Hall
Pikeville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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