COMMONWEALTH OF KENTUCKY VS. BREWER (CARL)
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RENDERED: JULY 8, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000873-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
ON DISCRETIONARY REVIEW FROM CHRISTIAN CIRCUIT COURT
v.
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 08-XX-00006
CARL BREWER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR
JUDGE.
LAMBERT, SENIOR JUDGE: This Court granted discretionary review of this
misdemeanor criminal case in which the Commonwealth seeks to overturn an
Opinion and Order of the Christian Circuit Court. Pursuant to Commonwealth v.
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
ursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS)
21.580.
Beard, 275 S.W.3d 205 (Ky. App. 2008), the circuit court vacated Appellee Carl
Brewer’s conditional guilty plea to a charge of driving under the influence, second
offense (DUI 2nd), because Appellee had not been convicted of a pending DUI
charge at the time of his arrest for the second DUI offense. The Commonwealth
contends on appeal that the facts of this case are distinguishable from those in
Beard and suggests, in the alternative, that Beard be rejected as precedent.
However, for reasons that will follow, we are compelled to affirm the decision of
the Christian Circuit Court.
Facts and Procedural History
On August 27, 2008, Appellee was arrested and charged with DUI,
first offense (DUI 1st). Just over three weeks later, on September 18, 2008,
Appellee was again arrested and charged with DUI 1st. At the time of his second
arrest, Appellee had not been convicted on the August DUI 1st charge. Appellee
pled guilty to the August DUI 1st charge on October 2, 2008 in the Christian
District Court.
The September DUI 1st charge was then amended to a charge of DUI
2nd in light of Appellee’s guilty plea to the August DUI. Appellee subsequently
entered a conditional guilty plea to the September DUI 2nd charge, but he reserved
the right to appeal the issue of whether he was subject to a DUI 2nd conviction
because he had not yet been convicted of the August DUI at the time of his arrest
for the September DUI. The classification of a DUI offense as 1st or 2nd is highly
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significant due to the enhanced penalties associated with the latter. See, e.g., KRS
189A.010(5)(b) & (8).
On appeal, the Christian Circuit Court entered an Opinion and Order
remanding the case to the district court and ordering that court to vacate Appellee’s
conditional plea and to treat his September DUI offense as a DUI 1st. In reaching
this decision, the circuit court relied upon our decision in Commonwealth v. Beard,
supra, for the proposition that for purposes of DUI penalty enhancement under
KRS 189A.010(5)(e), a second DUI offense must occur after conviction for a first
offense, i.e., in a “conviction-to-offense” sequence. Thus, the court below
concluded that as Appellee had not been convicted of DUI 1st at the time he
committed the second offense, he could not be convicted of DUI 2nd for the second
offense.
Analysis
On appeal, the Commonwealth contends that because Appellee was
convicted of the August DUI charge prior to being convicted of the September
DUI, the latter conviction can be properly categorized as a DUI 2nd. The
Commonwealth asserts that this is true despite the fact that Appellee had not been
convicted of the August offense at the time he was arrested for the September
offense. In response, Appellee argues that pursuant to Commonwealth v. Beard,
supra, and KRS 189A.010(5)(e) he could not be convicted of DUI 2nd because at
the time of arrest he had not been convicted of a qualified prior DUI. We agree
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with Appellee that Beard and KRS 189A.010(5)(e) are dispositive of this case and
require that we affirm the decision of the circuit court.
In Beard, we interpreted KRS 189A.010(5)(e) as expressing the
General Assembly’s intent to require a “conviction-to-offense sequence” for
subsequent DUI offense enhancement, i.e., the second offense must occur after
conviction of the first offense. Beard, 275 S.W.3d at 208; see also Fulcher v.
Commonwealth, 149 S.W.3d 363, 380 n.3 (Ky. 2004). KRS 189A.010(5)(e)
defines “prior offenses” as including:
… all convictions in this state, and any other state or
jurisdiction, for operating or being in control of a motor
vehicle while under the influence of alcohol or other
substances that impair one's driving ability, or any
combination of alcohol and such substances, or while
having an unlawful alcohol concentration, or driving
while intoxicated, but shall not include convictions for
violating subsection (1)(e) of this section. A court shall
receive as proof of a prior conviction a copy of that
conviction, certified by the court ordering the conviction.
(Emphasis added). Based on this language, the Court concluded that “[t]here
seems to be no escaping the import of that language that Kentucky has indeed
embraced the conviction-to-offense prerequisite for penalty enhancement purposes
in DUI cases.” Beard, 275 S.W.3d at 208.
Here, when Appellee committed and was arrested for the September
DUI he had not been convicted of any other DUI offense within the previous five
years.2 Consequently, per Beard and KRS 189A.010(5)(e), he could not be
2
A person who operates a motor vehicle while under the influence of alcohol for the “second
offense within a five (5) year period” is subject to enhanced penalties. KRS 189A.010(5)(b).
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convicted of DUI 2nd for that offense even though another DUI charge was pending
at the time of the September DUI. However, the Commonwealth contends that a
different result should be reached in this case.
The Commonwealth first argues that Beard should not be applied here
in light of another subsection of KRS 189A.010 – KRS 189A.010(10). That
provision states: “In determining the five (5) year period under this section
[referring to the period of time following a DUI conviction in which the penalties
for a subsequent DUI offense can be enhanced], the period shall be measured from
the dates on which the offenses occurred for which the judgments of conviction
were entered.” The Commonwealth contends that by enacting this provision, the
General Assembly intended that the date of the first DUI offense – not the date of
the conviction – should be used in deciding if a subsequent offense should be
enhanced. The Commonwealth further contends that this section should prevail
over KRS 189A.010(5)(e) because of an alleged conflict between the two
provisions.
However, we see no conflict here and view KRS 189A.010(10) as
only coming into play when a conviction for DUI 1st exists prior to the occurrence
of a second DUI offense thereby raising the possibility of enhanced penalties. Any
other interpretation would ignore the clear language of KRS 189A.010(5)(e)
defining “prior offenses” as including “all convictions.” Moreover, this
interpretation ignores the conclusions of this Court and the Supreme Court of
Kentucky that KRS 189A.010 requires a “conviction-to-offense sequence” for
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subsequent DUI offense enhancement. See Fulcher, 149 S.W.3d at 380 n.3;
Beard, 275 S.W.3d at 208. Consequently, this argument must be rejected.
The Commonwealth also attempts to draw a distinction between this
case and Beard because the defendant in Beard had only pled guilty to DUI 1st (he
had not actually been convicted of the offense) at the time that he pled guilty to
DUI 2nd. However, we believe that this is a distinction without a difference given
the clear language of KRS 189A.010(5)(e) and our holding in Beard that the
statute sets forth a “conviction-to-offense sequence” for subsequent DUI offense
enhancement. It is the timing of the second DUI offense that ultimately controls.
Thus, this argument must also be rejected.
The Commonwealth also cites to Royalty v. Commonwealth, 749
S.W.2d 700 (Ky. App. 1988) – a case that did not follow the “conviction-tooffense” sequence for purposes of subsequent DUI enhancement – in support of its
belief that a different result is compelled. Although we referenced that decision
with approval in Beard (albeit in a somewhat different context), Appellee correctly
points out that the language of KRS 189A.010(5)(e) providing that “prior offenses
shall include all convictions in this state, and any other state or jurisdiction” was
not added to the statute by the General Assembly until 1991 – three years after
Royalty was rendered. See 1991 Ky. Acts ch. 15, sec. 2.3 Accordingly, we do not
believe that the reasoning and holding of Royalty are applicable here in light of the
3
At the time that it was originally enacted, the language of KRS 189A.010(5)(e) was contained
within KRS 189A.010(4)(e). The General Assembly moved the provision to subsection 5(e) in
2000. See 2000 Ky. Acts ch. 467, sec. 2.
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subsequent legislative enactment. Thus, to the extent that decision conflicts with
Beard and KRS 189A.010(5)(e), it is overruled.4
Conclusion
In reaching this decision, we note that we appreciate the concerns
raised by the Commonwealth and the distaste that this result may produce. As we
stated in Beard:
Public policy appears to be ill served by the outcome of
this case. There is no doubt that the penalty enhancement
provisions of KRS 189A.010 were created by the General
Assembly in order to deter drunken drivers from
becoming habitual offenders. Those penalty provisions
are effectively circumvented if a defendant can avoid the
extra penalties merely because of the timing of various
convictions. However, the legislature has apparently
wrestled with the need to balance due process and the
policy of enhancing penalties for serial offenses by
drunken drivers. It may be that it could achieve that
balance by amending the statute to affect the plea
process. If and until the statute directs otherwise, we are
bound to follow its literal language. The only solution at
present is for the Commonwealth to act as swiftly as
possible in prosecuting DUI charges seriatim rather than
in aggregate.
Beard, 275 S.W.3d at 208. With this in mind and for the reasons provided, we are
compelled to affirm the order of the Christian Circuit Court directing the Christian
District Court to vacate Appellee’s conditional guilty plea to DUI 2nd.
NICKELL, JUDGE, CONCURS.
4
We also note that our decision in Beard was primarily driven by the language of KRS
189A.010(5)(e) and, to a lesser, more explanatory extent, the decision of the Supreme Court of
Kentucky in Fulcher v. Commonwealth, supra.
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VANMETER, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
VANMETER, JUDGE, DISSENTING. I respectfully dissent.
In my view, a plain reading of KRS 189A.010(5)(e) reveals that it does not require
a “conviction-to-offense sequence” for subsequent DUI enhancement. The statute
neither refers to “subsequent offense” nor defines it. Instead, KRS 189A.010(5)(e)
simply defines “prior offenses” as including “all convictions.” In this instance,
Brewer was arrested for his first offense on August 27, 2008 and was convicted of
that charge on October 2. While the second offense occurred in between those two
dates, on September 18, at the time Brewer came to court on October 9 and plead
guilty to the second offense, he had a prior conviction for a DUI of which the
offense date had occurred with the previous five years, as measured by the offense
dates. See KRS 189A.010(10).
Commonwealth v. Beard, 275 S.W.3d 205 (Ky.App. 2008), cited by
the majority and the circuit court, does not compel a different result. In Beard, this
court ostensibly addressed the issue of whether the defendant Beard’s May 5,
2006, DUI arrest could be used to enhance the penalties for his conviction on a
May 26, 2006, DUI charge when he had not been convicted of the first offense
before the second offense occurred (or before he was charged with the second
offense); however, a close reading of that opinion discloses that this court actually
held that Beard could not be charged with DUI second offense based on the fact
that “Beard had not yet been convicted as such for the arrest of the May 5, 2006,
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when he entered his guilty plea for the second offense of May 26, 2006.” Beard,
275 S.W.3d at 208 (emphasis added). In other words, this court held that since no
credible record of conviction for the May 5, offense existed at the time Beard pled
guilty to the May 26, offense (NOT at the time the second offense occurred),
Beard could not be charged with DUI second offense.
Beard is somewhat confusing because this court acknowledges with
approval the prior holding in Royalty v. Commonwealth, 749 S.W.2d 700 (Ky.App.
1988), that for purposes of penalty enhancement under KRS 189A.010, the date of
conviction (not the date of arrest) governs, yet then states that “[t]here seems to be
no escaping the import of [KRS 189A.010(5)(e)] language that Kentucky has
indeed embraced the conviction-to-offense prerequisite for penalty enhancement
purposes in DUI cases.” Beard, 275 S.W.3d at 208. Nonetheless, I believe
Royalty is still good precedent with respect to this issue, even in light of the 1991
amendment to KRS 189A.010(5)(e), since, as amended, the statute still does not
define “subsequent offense.” In Royalty, this court correctly stated the law as set
forth by the Kentucky Supreme Court in Commonwealth v. Ball, 691 S.W.2d 207,
210 (Ky. 1985):
One who has been convicted of engaging in the
prohibited conduct of operating a motor vehicle
anywhere in this state while under the influence of
alcohol in violation of Section (1) of KRS 189A.010, and
who has the status at the time of such conviction of
having been previously convicted within five years of
such conviction of driving under the influence, is a
previous offender and is subject to the enhancement
provision of Sections 2(a), (b), and (c) of KRS 189A.010.
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(emphasis added). Thus, Ball provides that Kentucky follows a “conviction-toconviction” sequence for purposes of subsequent DUI offense enhancement; the
determining factor as to whether conviction of a second offense is proper is the
existence of a credible record showing conviction of a prior offense.
Beard in essence applies the holdings in Royalty and Ball, concluding
that the defendant Beard could not be charged with a second DUI offense since no
credible record of a conviction for the first DUI offense existed at the time of the
second offense conviction. I believe the Court’s holding in Ball is binding
precedent on this court, is consistent with the literal language of KRS
189A.010(5)(e), and serves the public policy of the Commonwealth to deter
drunken drivers from becoming habitual offenders.5
I would reverse the opinion and order of the Christian Circuit Court
and remand this case with directions for the court to enter an order affirming the
judgment of the Christian District Court.
5
Fulcher v. Commonwealth, 149 S.W.3d 363 (Ky. 2004), cited in the majority opinion, involved
an interpretation of KRS 218A.010(25) defining “second or subsequent offense” for purposes of
KRS Chapter 218A which relates to controlled substances. Any discussion by the court in
Fulcher concerning KRS 189A.010(5)(e) is dicta and thus not binding precedent. See Cawood
v. Hensley, 247 S.W.2d 27, 29 (Ky. 1952) (stating that “[a] statement in an opinion not necessary
to the decision of the case is obiter dictum” and is not authoritative, “though it may be persuasive
or entitled to respect”); Bd. of Claims v. Banks, 31 S.W.3d 436, 439 n.3 (Ky.App. 2000) (stating
that dicta need not be treated as precedent). KRS 189A.010(5)(e) nowhere contains the words
“obtained prior to the subsequent offense.” Accordingly, I do not read Fulcher as holding that
KRS 189A.010 requires a “conviction-to-offense sequence” for subsequent DUI offense
enhancement.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jack Conway
Attorney General
Shannon Dupree
Assistant Public Advocate
Frankfort, Kentucky
John T. Soyars
Special Assistant Attorney General
Hopkinsville, Kentucky
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