ALBERT CLAYTON HOBBS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002418-MR
ALBERT CLAYTON HOBBS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 99-CR-00817
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant, Albert Clayton Hobbs, appeals from a
judgment of the Fayette Circuit Court convicting him of driving
under the influence, fourth offense and first-degree persistent
felony offender, and sentencing him to ten years' imprisonment.
Having determined that appellant waived his right to contest his
1994 guilty plea and that his DUI, fourth offense conviction was
valid, the trial court properly denied appellant's motion to
dismiss, hence, we affirm.
Appellant was indicted by the Fayette County Grand Jury
on November 16, 1998, indictment no. 98-CR-1184, on one count of
operating a motor vehicle under the influence, third offense,
blood alcohol level of .18 or above, and with being a firstdegree persistent felony offender (PFO I).
The DUI charge
resulted from an offense occurring on September 13, 1998.
The
indictment reflected that appellant had been convicted of DUI
twice in 1994, in Jessamine County and in Fayette County, as well
as four prior felonies.
On December 4, 1998, appellant filed a
motion in Fayette Circuit Court to suppress his 1994 Jessamine
County DUI conviction as based on a constitutionally defective
guilty plea, and dismiss the DUI, third offense charged in
indictment no. 98-CR-1184.
The trial court denied the motion in
an order entered on January 20, 1999.
While the case in indictment no. 98-CR-1184 was
pending, appellant committed a fourth DUI offense, on
December 23, 1998, for which appellant entered a guilty plea to
DUI, third offense in Fayette County on January 5, 1999.
As a
result, upon motion by the Commonwealth, indictment no. 98-CR1184 was dismissed, and, on August 2, 1999, appellant was
reindicted by the Fayette County Grand Jury (indictment no. 99CR-817) on one count of operating a motor vehicle under the
influence, fourth offense and PFO I, resulting from the
September 13, 1998 incident.
The Commonwealth used the 1994
Jessamine County conviction, the 1994 Fayette County conviction,
and the January 5, 1999 Fayette County conviction as the basis
for the DUI, fourth offense charge.
On August 16, 1999,
appellant filed a motion to dismiss indictment 99-CR-817, on
grounds including that "at least one of his prior DUI
convictions" was the result of a constitutionally invalid guilty
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plea, and that the Commonwealth was improperly using a conviction
subsequent to the offense charged in indictment 99-CR-817 as a
basis for the charge.
Contrary to the Commonwealth's assertions,
it appears from the record that the trial court did consider
appellant's motion to dismiss, which it denied on August 20,
1999.
On August 20, 1999, appellant entered a conditional guilty
plea, reserving the right to appeal the trial court's adverse
decision on his motion to dismiss.
In an order entered on
September 14, 1999, appellant was sentenced to one year's
imprisonment for the DUI, fourth offense, enhanced to ten years
by the PFO I, from which order he appeals.
On appeal, appellant argues that the trial court erred
when it failed to suppress his 1994 Jessamine County DUI
conviction.
Appellant contends the plea was constitutionally
defective, as he was not represented by counsel and the court did
not properly establish that his plea was knowing, voluntary and
intelligent as required by Boykin v. Alabama, 395 U.S. 238, 89 S.
Ct. 1709, 23 L. Ed. 2d 274 (1969).
Although appellant challenged
the 1994 Jessamine County plea in his motion of December 4, 1998
in regard to indictment no. 98-CR-1184, the record does not
indicate, and appellant does not contend, that appellant
challenged the plea when he pled guilty to DUI, third offense in
Fayette County on January 5, 1999.
Having failed to contest the
plea in the January 5, 1999 proceedings, per the Kentucky Supreme
Court's holding in Commonwealth v. Hodges, Ky., 984 S.W.2d 100
(1998), appellant waived his right to contest the plea in a
subsequent proceeding.
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Appellant next argues that the trial court erred when
it refused to dismiss the superceding indictment of August 2,
1999 which charged DUI, fourth offense in relation to the
September 13, 1998 incident.
Appellant argues that the
Commonwealth should not be allowed to reindict him using a
conviction subsequent (here, the January 5, 1999 conviction) to
the offense being tried (the September 13, 1998 offense) to
establish his status as a felon.
In Royalty v. Commonwealth, Ky. App., 749 S.W.2d 700
(1988), this Court addressed a similar fact pattern.
In Royalty,
the defendant received his second DUI conviction for his third
DUI arrest and received his third DUI conviction for his second
DUI arrest.
This Court affirmed the DUI, third offense
conviction, finding Commonwealth v. Ball, Ky., 691 S.W.2d 207,
210 (1985) dispositive of the issue, in which the Kentucky
Supreme Court stated:
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 provisions of
Section (2)(a), (b), and (c) of KRS 189A.010.
The enhancement provisions, which were contained in KRS 189A.010
(4) at the time of appellant's convictions in 1999 [KRS
189A.010(5) effective October 1, 2000], provide that for a fourth
or subsequent offense within a five-year period, a person shall
be guilty of a Class D felony.
KRS 189A.010(4)(e) [KRS
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189A.010(5)(e) effective October 1, 2000] defines "prior
offenses" to include:
. . . 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.
Appellant's DUI conviction record is as follows:
Violation Date
Convicted
09/05/94
09/11/94
09/13/98
12/23/98
09/22/94
10/17/94
08/20/99
01/05/99
DUI
DUI
DUI
DUI
1st
2nd
4th
3rd
While the case resulting from appellant's September 13, 1998
offense was pending, indictment no. 98-CR-1184, he committed a
fourth DUI offense on December 23, 1998, to which he pled guilty
as a DUI, third offense on January 5, 1999.
As appellant now had
three prior DUI convictions, 98-CR-1184 was dismissed, and on
August 2, 1999, appellant was properly reindicted for the
September 13, 1998 offense as a DUI, fourth offense instead of
third, to which he conditionally pled guilty on August 20, 1999.
Per the terms of KRS 189A.010, and the holdings of Royalty and
Ball, we conclude appellant's DUI, fourth offense conviction is
valid.
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Wettle
Louisville, Kentucky
A. B. Chandler, III
Attorney General
John E. Zak
Assistant Attorney General
Frankfort, Kentucky
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