WILLIAM NEAL v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: June 30, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
1999-CA-000195-MR
and
1999-CA-000693-MR
WILLIAM NEAL
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, JUDGE
ACTION NO. 97-CR-01378
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; EMBERTON and TACKETT, JUDGES.
EMBERTON, JUDGE: These consolidated appeals stem from the denial
of appellant’s motion for relief pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42 and from the denial of a
subsequent Kentucky Rules of Civil Procedure (CR) 59.05 motion to
vacate the denial of the previous motion for post-conviction
relief.
Appellant alleged in his RCr 11.42 motion that he had
been denied effective assistance of counsel in that he was
permitted to enter an unconditional guilty plea to charges of
operating a motor vehicle on a suspended license, third offense,
and of being a persistent felony offender in the second degree,
under circumstances which subjected him to an improper double
enhancement of the charges against him.
Because we are convinced
that there was no improper double enhancement, we affirm the
denial of both the RCr 11.42 and the CR 50.05 motions.
On October 20, 1995, appellant pled guilty to one count
of operating a motor vehicle under the influence of alcohol,
fourth offense, and one count of operating a motor vehicle on a
suspended license, third offense, for which he was sentenced to
one year of imprisonment on each count to be served
consecutively.
Imposition of the sentences was withheld and
appellant was placed on probation for a period of three years.
Approximately two and one-half years later, on February 18, 1998,
appellant pled guilty to one count of operating a motor vehicle
on a suspended license, third offense, and to one count of being
a second-degree persistent felony offender.
The Commonwealth
used the 1995 conviction for operating a motor vehicle on a
license suspended for DUI to enhance the 1998 operating a vehicle
on a suspended license to a third offense, and the prior DUI
fourth conviction served as the basis for the charge of PFO II.
On June 17, 1998, appellant filed the instant RCr 11.42
motion alleging, among other things, that he had received
ineffective assistance of counsel as a result of the failure of
his counsel to object to the improper splitting of his 1995
convictions to enhance the 1998 convictions.
After the denial of
that motion, appellant, relying primarily upon a recent decision
-2-
of the Kentucky Supreme Court in Gray v. Commonwealth,1 attempted
in a CR 59.05 motion to convince the trial court that its
previous ruling was erroneous.
That motion was also denied by
the trial court.
Appellant again argues in this forum that because his
counsel did not object to the double enhancement of the charges
against him, he was wrongly convicted of a PFO charge to which he
had an absolute defense, demonstrating the requisite prejudice
suffered as a result of his counsel’s deficient performance.
disagree.
We
Neither the opinion in Gray, supra, nor the law in
effect at the time of appellant’s 1998 guilty plea, prohibit the
kind of double enhancement to which appellant was subjected.
Prior to distinguishing the result in Gray from the
situation in appellant’s case, we focus our discussion upon the
decision of this court in Corman v. Commonwealth,2 a case
factually comparable to appellant’s.
Corman alleged
impermissible double enhancement after he was indicted on a
charge of DUI, fourth offense, and for being a persistent felony
offender in the second degree.
The latter indictment stated that
it was based on appellant’s prior felony conviction for operating
a motor vehicle while his license was suspended for a third
offense of DUI.
Corman maintained that because his prior DUI
convictions had been used to support the charge of DUI, fourth
offense, and had also been used to prove the felony of third
offense of operating a motor vehicle while his license was
1
Ky., 979 S.W.2d 454 (1998).
2
Ky. App., 908 S.W.2d 122 (1995).
-3-
suspended for DUI, use of the OMV conviction to support the PFO
II charge constituted double enhancement.
In rejecting Corman’s
contention, the court offered the following explanation of the
manner in which prior felonies may be used for enhancement
purposes:
The rule is now established that when a
single prior felony is utilized to create an
offense or enhance a punishment at the trial
of the second crime, that same prior felony
cannot be used at that trial to prosecute the
defendant as a persistent felony offender.
[Citations omitted]. If, however, the prior
felony used to underlie PFO conviction is a
separate prior felony from the one used to
create the offense or enhance its punishment,
the offense can be further enhanced under the
PFO statute. . . .
. . . .
While prosecution for a violation of KRS
189A.090 does require that the defendant have
his license revoked or suspended for a
violation of KRS 189A.010 (DUI), KRS 189A.090
is a completely separate offense from KRS
189A.010. Violations of KRS 189A.010 do not
alone give rise to a charge under KRS
189A.090. The defendant must also have his
license revoked (KRS 189A.070) for such
violation, and then the defendant must be
found to have been operating a motor vehicle
while said license was revoked (and must be
so convicted three times in order for the
offense to be a felony under 189A.090(2)(c)).
As the prior DUI convictions are separate
convictions from the OMV on a revoked license
charge, the case is distinguishable from
Heady, supra, and under Eary, supra, it was
not double enhancement for the court to allow
the OMV for revoked license charge to enhance
the DUI 4th charge for PFO purposes.
(Emphasis added).3
3
908 S.W.2d at 123-124.
-4-
The import of Gray, supra, to the Corman rationale, and
to PFO cases in general, is its explanation of the concept of
merger contained in KRS 532.080(4):
For the purpose of determining whether a
person has two (2) or more previous felony
convictions, two (2) or more convictions of
crime for which that person served concurrent
or uninterrupted consecutive terms of
imprisonment shall be deemed to be only one
(1) conviction, unless one (1) of the
convictions was for an offense committed
while that person was imprisoned. (Emphasis
added).
Although appellant in this case argues that is exactly his
situation because his 1993 convictions resulted in a sentence of
uninterrupted consecutive sentences, the fallacy in his argument
lies in the fact that he was not charged with PFO I and thus his
prior offenses did not merge for PFO purposes.
The court in Gray reaffirmed the Corman holding that a
single prior conviction cannot form the basis for enhancement
under both the DUI statute and the PFO statute, and also
explained how the merger concept fits into the equation.
Citing
Howard v. Commonwealth, Ky., 777 S.W.2d 888 (1989), the court
outlined the principle at work as follows:
In Howard, the defendant was convicted
of drug trafficking as a subsequent drug
offender and of being a PFO in the first
degree. Id. at 888. The defendant also had
been convicted of two prior felonies and a
prior misdemeanor in 1983, the sentences of
which were to be served concurrently. The
two 1983 felonies, merged under KRS
532.080(4) for PFO purposes, formed part of
the basis for the PFO I conviction, and the
1983 misdemeanor formed the basis for the
subsequent offender enhancement under the
drug statute. Id. at 889. The defendant
argued that because the three prior sentences
ran concurrently, all of the 1983 convictions
-5-
merged for PFO purpose and could not then be
split to obtain both PFO I and subsequent
offender convictions. The Court held that
although the sentences for the 1983 crimes
had merged, the underlying convictions,
except the two prior felonies for PFO
purposes, had not. In upholding defendant’s
double enhancement, the Court asserted that
the “1983 drug misdemeanor conviction, on the
other hand, never merged with the 1983
convictions for any purpose, always stood
alone, and was independently used to obtain
the subsequent offender conviction.”4
(Emphasis added).
Similarly in appellant’s case, there was no merger for
PFO purposes because he was only charged with PFO II.
Because
only one prior conviction was required to support the PFO II
charge, the 1995 OMV conviction remained independent as the
merger statute had no application.
It is only when determining
whether a person has two or more previous convictions that KRS
532.080(4) comes into play.
Thus, there was no impermissible
double enhancement by using appellant’s 1995 OMV conviction to
elevate his current OMV charge to the third offense and using his
1995 DUI 4th conviction to support the charge of PFO II.
A
careful examination of Corman, Howard, and Gray clearly
demonstrates that there is no conflict in those opinions.
Therefore, because there was no improper double
enhancement, counsel could not be ineffective for failing to
object to the indictments.
Accordingly, the denial of
appellant’s RCr 11.42 motion is affirmed.
ALL CONCUR.
4
979 S.W.2d at 456.
-6-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Marguerite Neill Thomas
Frankfort, Kentucky
Albert B. Chandler III
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
