JERRY TACKETT v. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 8, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001804-MR
JERRY TACKETT
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
INDICTMENT NO. 01-CR-00182
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, AND KNOPF, JUDGES.
DYCHE, JUDGE:
On January 1, 2001, at 2:30 p.m., Jerry Wayne
Tackett was involved in an injury accident in Lexington,
Kentucky.
According to the police report, Tackett had rear-ended
another vehicle that had stopped to avoid a stalled car.
Tackett
had open beer cans in his car and had in fact spilled all over
himself the contents of the can he had in his lap.
He honestly
advised the police officer that he had had too much to drink and
stated “take me to jail.”
Tackett refused all but one field
sobriety test and later refused the Intoxilizer test when taken
to jail.
Tackett was arrested and the following month indicted
for operating a motor vehicle under the influence (DUI), second
offense (Kentucky Revised Statute [KRS] 189A.010), operating a
motor vehicle on a license suspended for driving under the
influence, second offense (KRS 189A.090), no insurance (KRS
304.39-080), and persistent felony offender (PFO) in the first
degree (KRS 532.080).
On March 27, 2001, Tackett filed a “motion
to dismiss and/or to declare KRS 189A.090 and 532.080
unconstitutional.”
The Fayette Circuit Court denied this motion
on March 25, 2001.
Two days later Tackett entered a conditional
plea of guilty (Kentucky Rule of Criminal Procedure 8.09) to the
indicted offenses (except for no insurance).
a total of ten years’ imprisonment.
He was sentenced to
Tackett was granted this
belated appeal.
Tackett’s sole argument before this Court is that
“Kentucky Revised Statute 189A.090 is unconstitutional when used
in tandem with Kentucky Revised Statute 532.080.”
Tackett
attacks the statute as arbitrary and not rationally related to a
legitimate legislative purpose, as doubly enhancing, and as
disproportionately punishing an offense which would otherwise be
a Class B misdemeanor.
Unfortunately for appellant the law and the trial court
record do not support his positions.
Tackett has failed in his
burden of demonstrating the statute’s unconstitutional
applications.
See Cornelison v. Commonwealth, Ky., 52 S.W.3d
570, 573-574 (2001).
no double enhancement.
Contrary to Tackett’s assertions, there was
The record clearly indicates that the
-2-
current DUI offense was enhanced by a prior conviction from 1996.
The felony convictions used to support the PFO I were from 1993
and 1983.
(1995).
Cf. Corman v. Kentucky, Ky., 908 S.W.2d 122, 123
As for the disproportionate sentence, the record
indicates that this is (at the least) Tackett’s sixth DUI
conviction, and he has the two prior felonies.
As the
Commonwealth asserts, Tackett is a persistent recidivist, and
should be punished accordingly.
See Harrison v. Commonwealth,
Ky., 858 S.W.2d 172 (1993).
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bobby Amburgey
Lexington, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
-3-
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