ALLEN DAVID JONES v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 29, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
SUPREME COURT GRANTED DISCRETIONARY REVIEW MARCH 14, 2007
(FILE NO. 2006-SC-0802-D)
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001089-MR
ALLEN DAVID JONES
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
INDICTMENT NO. 04-CR-00840
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY, JOHNSON, AND SCHRODER, JUDGES.
HENRY, JUDGE:
On April 1, 2005, Allen David Jones entered a
conditional guilty plea relating to a number of charges
resulting from his arrest for driving under the influence and
driving with a suspended license.
He now appeals on the grounds
that the trial court erroneously allowed the Commonwealth to
amend the indictment against him, and that he has been subjected
to double jeopardy.
Upon review, we affirm.
On July 12, 2004, Jones was indicted by the Fayette
County Grand Jury on charges of (1) operating a motor vehicle
while DUI (fourth or greater offense),1 (2) driving on a
suspended license (which had been suspended for DUI) while again
driving under the influence (third offense),2 (3) second-degree
wanton endangerment,3 (4) driving with no insurance,4 and (5)
being a first-degree persistent felony offender.5
On July 15,
2004, Jones appeared before the Fayette Circuit Court with
counsel and entered a “not guilty” plea to all charges.
On August 12, 2004, Jones moved to dismiss Count Five
of the indictment on the ground that the Commonwealth was
attempting to use for PFO enhancement purposes the same DUI
convictions that were the basis for the felony charge in Count
One, thus creating an impermissible double enhancement.
On
September 8, 2004, the Commonwealth moved to amend Count One of
the indictment down to DUI second offense, Count Two of the
indictment down to a second offense, and Count Five of the
indictment to being a first-degree PFO.
In doing so, the
Commonwealth intended to apply one of Jones’ prior DUI
convictions to the PFO charge instead of the DUI charge to avoid
1
Pursuant to Kentucky Revised Statutes (“KRS”) 189A.010.
2
Pursuant to KRS 189A.090.
3
Pursuant to KRS 508.070.
4
Pursuant to KRS 304.39-080.
5
Pursuant to KRS 532.080.
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the double enhancement problem.
Jones argued in response to the
Commonwealth’s motion to amend that KRS 189A.010 and KRS
189A.120 prohibited the DUI charge in Count One from being
amended down to a misdemeanor and, accordingly, the PFO charge
in Count Five had to be dismissed.
On October 6, 2004, the trial court entered an order
sustaining the Commonwealth’s motion to amend the indictment and
rejecting Jones’ motion in opposition.
In doing so, the court
held that Riley v. Commonwealth, 120 S.W.3d 622 (Ky. 2003) and
Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003) “both address
the discretion of the Commonwealth to choose how to proceed in
prosecuting cases and allows for the amendment of an indictment
to add status charges for purposes of enhancing penalty.”
court continued:
offense. . . .
The
“PFO is a status, not a criminal
An amendment such as this does not affect the
defendant’s substantial rights because he is or should be aware
of his own criminal record.”
The court further cited to State
v. Whitten, 622 A.2d 85 (Me. 1993) and Howard v. State, 377
N.E.2d 628 (Ind. 1978) for the proposition that “[o]ther
jurisdictions have held that the amendment of an indictment or
information to add ‘habitual criminal’ count did not charge
separate offense[s] but only provided a more severe penalty for
the indicted offense.”
The court finally noted:
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Furthermore, the legislature did not exclude
the offenses set forth in KRS Chapter 189A
from the persistent felony offender statute.
While the Court agrees that the Commonwealth
cannot use the persistent felony offender
statute and a DUI Fourth or greater offense
to enhance the same charge, the Court finds
that the Commonwealth has complete
discretion in choosing how to proceed with
prosecuting criminal cases, including the
strategic manipulation of offenses in order
to proceed at trial and argue for the
maximum punishment allowable by law.
On April 1, 2005, Jones filed a petition to enter into
a conditional guilty plea as to Counts One, Two, and Five of the
indictment.
In return for this plea, the Commonwealth
recommended a sentence of 14 days and a $350.00 fine for Count
One, a ten-year PFO-enhanced sentence for Count Two, and
dismissal of Counts Three and Four.
This petition was accepted
by the trial court, and on April 6, 2005, the court entered a
judgment finding Jones guilty of the aforementioned counts.
May 10, 2005, the court entered a final judgment dismissing
On
Counts Three and Four and sentencing Jones to 30 days’
imprisonment for Count One (in lieu of a $350.00 fine) and a
ten-year PFO-enhanced sentence for Count Two.
However, after
considering the pre-sentence investigation report, the court
suspended imposition of this sentence and ordered Jones to be
placed on probation for five years, subject to a number of
conditions.
This appeal followed.
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On appeal, we first address Jones’ argument that the
trial court erred in allowing the Commonwealth to amend Count
One of the indictment from DUI fourth offense to DUI second
offense.
He specifically contends that KRS 189A.010 requires
that his crime be prosecuted as a felony, and that KRS 189A.120
prohibits an amendment down where a defendant refuses an alcohol
or drug test.
As a general rule, “an ‘independent’ motion by a
prosecutor to dismiss or amend an indictment must be sustained
unless clearly contrary to manifest public interest.”
Hoskins
v. Maricle, 150 S.W.3d 1, 24 (Ky. 2004), citing United States v.
Cowan, 524 F.2d 504, 513 (5th Cir. 1975).
Moreover, “it is
beyond dispute that the executive branch’s prosecutorial
function includes ‘the decision whether or not to prosecute, and
what charge to file or bring before a grand jury.’”
Flynt v.
Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003), quoting
Commonwealth v. McKinney, 594 S.W.2d 884, 888 (Ky.App. 1979), in
turn quoting Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663,
54 L.Ed.2d 604 (1978).
As our Supreme Court further noted in
Hoskins: “Few subjects are less adapted to judicial review than
the exercise by the Executive of his discretion in deciding when
and whether to institute criminal proceedings, or what precise
charge shall be made, or whether to dismiss a proceeding once
brought.”
Hoskins, 150 S.W.3d at 20, quoting Newman v. United
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States, 382 F.2d 479, 480 (D.C. Cir. 1967).
Thus, “[a] judge in
our system does not have the authority to tell prosecutors which
crimes to prosecute or when to prosecute them.”
Id., quoting
United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992).
Here, Jones in essence argues that the Commonwealth is
prohibited from choosing under which section or sections of KRS
189A.010 it wishes to proceed in prosecuting a particular
defendant for DUI.
We disagree.
There is nothing within any of
the provisions of KRS 189A.010 that purport to limit a
prosecutor’s discretion to bring whatever charges he or she sees
fit against a defendant or to amend those charges.
Moreover,
Jones has cited us to no case law in support of his position,
and we can find none in our own research.
Indeed, our Supreme
Court has repeatedly held that a case may be prosecuted pursuant
to KRS 189A.010 on multiple theories.
See Commonwealth v.
Reynolds, 136 S.W.3d 442 (Ky. 2004); Commonwealth v. Wirth, 936
S.W.2d 78 (Ky. 1996).
Accordingly, we must reject Jones’
contention that KRS 189A.010 prohibits the amendment to the
indictment that was allowed in this case.
We next consider Jones’ argument that KRS 189A.120
prohibited what occurred here.
KRS 189A.120(1) provides as
follows:
When an alcohol concentration for a person
twenty-one (21) years of age or older in a
prosecution for violation of KRS 189A.010 is
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0.08 or above, is 0.02 or above for a person
under the age of twenty-one (21), or when
the defendant, regardless of age, has
refused to take an alcohol concentration or
substance test, a prosecuting attorney shall
not agree to the amendment of the charge to
a lesser offense and shall oppose the
amendment of the charge at trial, unless all
prosecution witnesses are, and it is
expected they will continue to be,
unavailable for trial.
(Italics added).
After much consideration, we do not agree that the
language of KRS 189A.120 prohibited the amendment that occurred
in this case.
As grounds for this conclusion, we believe that
the phrases “shall not agree to the amendment of the charge to a
lesser offense” and “shall oppose the amendment of the charge at
trial” anticipate that the impetus for amending a charge is not
that of an independent prosecutorial decision.
In reaching this
conclusion, we particularly note the General Assembly’s use of
the words “agree” and “oppose.”
Merriam-Webster’s Collegiate
Dictionary gives many definitions for the word “agree”
including: “to concur in (as an opinion): ADMIT, CONCEDE”, “to
consent to as a course of action”, “to accept or concede
something (as the views or wishes of another)”, “to achieve or
be in harmony (as of opinion, feeling, or purpose)”, “to get
along together”, and “to come to terms”.6
6
Merriam-Webster’s
As “agree” is not defined anywhere within KRS Chapter
construed according to its common and approved usage.
Withers v. University of Kentucky, 939 S.W.2d 340, 345
Coots v. Allstate Ins. Co., 853 S.W.2d 895 (Ky. 1993);
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189A, it must be
KRS 446.080(4);
(Ky. 1997), citing
Gateway Construction
Collegiate Dictionary 26 (11th ed. 2003).
The plain and literal
meaning of “agree,” then, contemplates consensus, agreement, or
compromise among different parties as to a course of action or
an issue in disagreement - not an independent decision by one
party to proceed in a certain way as to a particular matter.
Likewise, a prosecutor being put in a situation in which he
would be required to “oppose the amendment of the charge at
trial,” anticipates that he did not request such an amendment of
his own initiative and that it instead came from another party.
We are obliged to follow and give effect to the plain language
of KRS 189A.120(1) as it is written.
See Bailey v.
Commonwealth, 70 S.W.3d 414, 416 (Ky. 2002); Commonwealth v.
Harrelson, 14 S.W.3d 541, 547 (Ky. 2000).
Moreover, our
decision is consistent with our courts’ views on the broad
authority afforded prosecutors to amend indictments on their own
accord where warranted, as noted above.7
Accordingly, we find no
error as to this issue.
We next consider Jones’ contention that convicting him
of both DUI and driving on a license suspended for DUI (with the
aggravating factor that he was DUI at the time of the offense)
constitutes double jeopardy.
Although this issue was not raised
Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962).
7
Further, the Kentucky Rules of Criminal Procedure contemplate broad
discretion of prosecutors to amend charges. See RCr 3.13 and 6.16. We are
also mindful that in DUI cases the degree of a charge must sometimes be
amended when an underlying conviction proves invalid or cannot be proven for
some reason other than the Commonwealth’s inability to produce a witness.
-8-
below, as it involves a double jeopardy claim, we may consider
it on appeal.
See Phillips v. Commonwealth, 679 S.W.2d 235, 236
(Ky. 1984); Gunter v. Commonwealth, 576 S.W.2d 518, 522 (Ky.
1978); Sherley v. Commonwealth, 558 S.W.2d 615, 618 (Ky. 1977).
In Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996),
our Supreme Court “reinstated the ‘Blockburger rule,’
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed. 306 (1932), as incorporated in KRS 505.020, as the sole
basis for determining whether multiple convictions arising out
of a single course of conduct constitutes double jeopardy.”
Taylor v. Commonwealth, 995 S.W.2d 355, 358 (Ky. 1999), citing
Burge, 947 S.W.2d at 809-11.
Applying the “Blockburger rule” in
this case requires us “to determine whether the act or
transaction complained of constitutes a violation of two
distinct statutes and, if it does, if each statute requires
proof of a fact the other does not. . . .
one offense included within another?”
Put differently, is
Burge, 947 S.W.2d at 811,
citing Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1995).
Here, Jones pled guilty to a second-offense DUI
and to operating a motor vehicle while his license was suspended
for DUI.
Because the suspended license charge was Jones’ second
offense within a five-year period, and because it occurred while
he was DUI, the charge was enhanced to a Class D felony.
189A.090(2)(b).
KRS
Jones argues that a conviction for DUI and the
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use of that DUI as an aggravating factor in his suspended
license conviction place him in double jeopardy, as the same
offense is involved in two separate charges against him.
We
disagree.
The fact that Jones was operating a motor vehicle
while his license was suspended for DUI was sufficient, in and
of itself, to support the suspended license conviction.
189A.090(1).8
KRS
The question of whether he was DUI at the time of
the offense goes only to the enhanced penalties available
against repeat offenders.
KRS 189A.090(2)(b).9
This fact is of
importance because our Supreme Court has repeatedly held that
“[a]ggravating circumstances are not criminal offenses subject
to double jeopardy considerations.”
Furnish v. Commonwealth, 95
S.W.3d 34, 51 (Ky. 2002); see also Caudill v. Commonwealth, 120
S.W.3d 635, 677-78 (Ky. 2003) (“Nor is it double jeopardy to
convict a defendant of robbery or burglary and then use the same
offense as an aggravating circumstance authorizing capital
punishment.”); Woodall v. Commonwealth, 63 S.W.3d 104, 132 (Ky.
8
KRS 189A.090(1) provides: “No person shall operate or be in physical control
of a motor vehicle while his license is revoked or suspended under KRS
189A.010(6), 189A.070, 189A.107, 189A.200, or 189A.220, or operate or be in
physical control of a motor vehicle without a functioning ignition interlock
device in violation of KRS 189A.345(1).”
9
KRS 189A.090(2)(b) provides: “For a second offense within a five (5) year
period, be guilty of a Class A misdemeanor and have his license revoked by
the court for one (1) year, unless at the time of the offense the person was
also operating or in physical control of a motor vehicle in violation of KRS
189A.010(1)(a), (b), (c), or (d), in which event he shall be guilty of a
Class D felony and have his license revoked by the court for a period of two
(2) years.”
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2001) (“Simply because the aggravating circumstance duplicates
one of the underlying offenses does not mean that the defendant
is being punished twice for the same offense.”); St. Clair v.
Roark, 10 S.W.3d 482, 487 (Ky. 1999) (“Nor is it double jeopardy
to impose a separate penalty for one offense while using the
same offense as an aggravating circumstance authorizing
imposition of capital punishment for another offense.”).
Because DUI is not an element of the charge of operating a motor
vehicle on a license suspended for DUI, and because operating a
motor vehicle on a suspended license is not an element of DUI,
we find that each charge requires “proof of an additional fact
which the other does not” and that Jones consequently was not
subjected to double jeopardy.
Therefore, his argument must be
rejected.
Accordingly, the judgment of the Fayette Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
V. Gene Lewter
Lexington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
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Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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