KATHLEEN L. NORTON 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NOT TO BE PUBLISHED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-002668-MR
KATHLEEN L. NORTON
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
INDICTMENT NO. 99-CR-00108
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON and SCHRODER, Judges.
HUDDLESTON, Judge:
Kathleen L. Norton was convicted of driving
under the influence, third offense, with a blood alcohol level
concentration of 0.18 or higher and was sentenced to two years in
prison.1
1
Norton challenges the constitutionality of Kentucky
Ky. Rev. Stat. (KRS) 189A.040(3)requires that “[i]n
addition to any other penalty prescribed by subsection (4)(c) or
(d) of KRS 189A.010, the court shall sentence the person to an
alcohol or substance abuse treatment program[.]” The circuit court
did sentence Norton according to KRS 189A.010(4)(c), but did not
sentence Norton to the required treatment program according to the
legislative mandate of KRS 189A.040(3).
Arguably an additional
sentence could be viewed as additional punishment; therefore, we
will not remand this case for additional sentencing. However, we
do not approve of the trial court’s neglect. Alcohol or substance
(continued...)
Revised Statute (KRS) 189A.010 — the statute under which she was
convicted.
A
State
Police
Trooper
arrested
Norton
following
a
traffic stop on May 11, 1999, in Lebanon Junction, Kentucky.
Norton was cited for violating KRS 189A.010.
When given a blood
alcohol analysis examination, Norton registered a measured reading
of .224 grams of alcohol per 210 liters of breath.2
Norton had two
prior driving under the influence convictions within the past five
years at the time of her arrest.
By motion, Norton challenged the constitutionality of KRS
189A.010 as a violation of equal protection rights and as cruel and
unusual punishment.
After the circuit court denied Norton’s
motion, she entered a guilty plea to the charge of driving under
the influence, third offense, with a blood alcohol level greater
than 0.18 under KRS 189A.010(4)(c).
Norton conditioned her plea
on her right to appeal the constitutionality of KRS 189A.010, and
this challenge is the basis of her appeal.
Norton makes three arguments in support of her assertion
that KRS 189A.010(4)(c)is unconstitutional.
First, Norton argues
that KRS 189A.010(4)(c) violates her right to due process and equal
protection guaranteed under the United States Constitution and the
1
(...continued)
abuse treatment provides the person convicted and the Commonwealth
with an opportunity to reap the benefits associated with
rehabilitation.
Failure to abide by this legislative mandate
deprives all parties of this opportunity.
2
KRS 189A.005 provides that alcohol concentration can be
measured as grams of alcohol per 100 milliliters of blood or grams
of alcohol per 210 liters of breath.
-2-
Kentucky Constitution.3
Second, Norton argues that application of
KRS 189A.010(4)(c) constitutes cruel and unusual punishment in
violation of the United States Constitution and the Kentucky
Constitution.4
Finally, Norton argues that KRS 189A.010(4)(c) is
a constitutionally prohibited ex post facto5 law.
Norton’s
argument
that
KRS
189A.010(4)(c)
violates
constitutional prohibitions against ex post facto laws was not
preserved for review.
Even if Norton had properly preserved this
argument, it is wholly without merit.
The statute had been
effective for almost ten months prior to her third offense. Norton
had
fair
warning
influence
was
that
a
third
potentially
a
offense
felony
of
driving
offense.
under
In
the
amending
KRSA.010(4)(c), the General Assembly did not create a new offense,
but
merely
enhanced
the
penalties
for
first
and
third
time
offenders with excessive levels of alcohol in their systems.
Norton cannot avoid the statute’s application.6
Norton’s
arguments
concerning
due
process,
equal
protection, cruel and unusual punishment have been considered in
3
According to Norton her rights are guaranteed under the
Fifth, Sixth and Fourteenth Amendments to the United States
Constitution and Sections 1, 2, 3 and 11 of the Kentucky
Constitution.
4
According to Norton the statute violates the Eighth
Amendment to the United States Constitution and Section 17 of the
Kentucky Constitution.
5
Article 1, Section 10 of the United States Constitution and
Section 19 of the Kentucky Constitution.
6
Botkin v. Commonwealth, Ky., 890 S.W.2d 292 (1994).
-3-
recent decisions rendered by this Court.7
While these decisions
are not yet final, we adopt the reasoning of these decisions rather
than repeat what was said therein.
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul J. Neel, Jr.
Louisville, Kentucky
Albert B. Chandler III
Attorney General
Frankfort, Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
7
Cornelison v. Commonwealth, 1999-CA-001825-MR, (opinion
rendered 7/7/00), motion for discretionary review pending, 47 Ky.
L. Sum. 7 (2000); Barker v. Commonwealth., 1999-CA-000500-MR,
(opinion rendered 9/29/00), 47 Ky. L. Sum. 11 (2000).
-4-
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