ALLEN DAVID JONES V. COMMONWEALTH OF KENTUCKY
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ALLEN DAVID JONES
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ON REVIEW FROM COURT OF APPEALS
CASE NO . 2005-CA-001089-MR
FAYETTE CIRCUIT COURT NO. 04-CR-00840
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
I. INTRODUCTION .
Allen David Jones entered a conditional guilty plea to operating a motor
vehicle under the influence (DUI) (second offense), driving on a DUI-suspended
license (second offense), and of being a persistent felony offender in the first
degree (PFO I) . Jones argues that the Commonwealth violated certain statutory
proscriptions when it moved to amend down his original fourth-offense DUI
charge to a second-offense DUI charge . Because the Commonwealth's actions
were directly contrary to KRS 189A.120(1), we agree .
II . FACTUAL AND PROCEDURAL HISTORY .
A grand jury indicted Jones on one count of fourth-offense DUI; 1 thirdoffense operating a vehicle with a suspended license (which had been
suspended for DUI) ;2 second-degree wanton endangerment ; 3 driving without
insurance ;4 and for being a PFO
1 .5
Jones filed a motion to dismiss the PFO
charge because the qualifier for the fourth-offense DUI charge and the PFO
charge were the same, which he argued is an impermissible double
enhancement.
In an effort to avoid any impermissible double enhancements, the
Commonwealth moved to amend the fourth-offense DUI to second-offense DUI6
and the third-offense driving on a DUI-suspended license to a second-offense
driving on a DUI-suspended license.? The effect of those amendments was to
save the PFO I charge by applying one of Jones's prior DUI convictions as the
qualifier for the PFO I charge instead of applying his current DUI charge as the
qualifier.
2
3
4
5
6
Kentucky Revised Statutes (KRS)189A .010(5)(d) provides that a DUI fourth offense
is a Class D felony.
KRS 189A.090(2)(c) provides that operating a vehicle with a DUI-suspended license
third offense is a Class D felony.
KRS 508 .070(2) provides that wanton endangerment in the second degree is a
Class A misdemeanor.
See KRS 304.39-080 ; KRS 304 .99-060 .
See KRS 532.080.
KRS 189A.010(5)(b) provides for a fine and possible incarceration in the county jail
from seven days to six months for a DUI second offense conviction .
KRS 189A.090(2)(b) provides that a second offense of operating a motor vehicle with
a DUI-suspended license is a Class A misdemeanor unless at the time of the offense
the person was also guilty of DUI, in which case the offense is a Class D felony.
Jones argued that KRS 189A.010(5) (d) and 189A.120(1) prohibited the
Commonwealth from recommending amending down the fourth-offense DUI
charge. The trial court rejected Jones's argument and permitted the
Commonwealth to amend the charges. Jones then entered the conditional
guilty plea set forth above, preserving for appellate review the propriety of the
amendment of the DUI-related charges . The trial court sentenced Jones to
thirty days' incarceration on the DUI second charge and one year of
imprisonment on the driving on a DUI-suspended license charge, enhanced to
ten years' imprisonment by virtue of the PFO I charge.$ But the trial court
suspended those sentences and ordered Jones to be placed on probation for
five years . The Court of Appeals affirmed . We granted discretionary review and
reverse the Court of Appeals.9
III . ANALYSIS .
Jones does not contest the fact that he refused to submit to an alcohol
concentration test. For purposes of this case, KRS 189A.120(1) provides, in
relevant part, that "a prosecuting attorney shall not agree to the amendment of
the charge to a lesser offense . . ." in DUI cases in which the defendant has
refused an alcohol concentration test . 10 Despite the seemingly straightforward
s The wanton endangerment and driving without insurance charges
were dismissed.
We have strong concerns over whether KRS 189A .120(1) and 189A.010(5)(d) violate
the separation of powers doctrine. However, for whatever reason, the
Commonwealth has not raised a separation of powers argument, meaning that
issue is not properly before us.
1 0 The entire subsection provides as follows:
language of the statute, the Commonwealth contends, and the Court of Appeals
agreed, that this statutory directive was not violated when the prosecutor
successfully moved to amend Jones's DUI fourth charge to a DUI second
charge. The Court of Appeals concluded that KRS 189A .120(1) only prohibited
the Commonwealth from agreeing to a defendant's motion for a reduction in
charges while leaving the Commonwealth free to file its own motion to reduce
the DUI charges. We do not share this impermissibly narrow construction of
the word
agree.
KRS 446 .080(4) requires that we construe the words of all statutes
"according to the common and approved usage of language," unless the words
"have acquired a peculiar and appropriate meaning in the law . . . ." There is
no indication that the simple word
agree
has acquired a peculiar meaning in
the law. So we must construe the word according to its ordinary meaning .
According to Webster's Dictionary, the word
agree
means "to concur in"
or "to consent to as a course of action . . . . .. 11 Clearly, the Commonwealth
concurred in, or consented to, the amendment of Jones's DUI fourth charge to
a DUI second charge. After all, it was the Commonwealth that sought the
amendment. If we were to hold that the Commonwealth did not "agree" to the
When an alcohol concentration for a person twenty-one (21) years of age or older in
a prosecution for violation of KRS 189A.010 is 0 .08 or above, is 0.02 or above for a
person under the age of twenty-one (21), or when the defendant, regardless of age,
has refused to take an alcohol concentration or substance test, a prosecuting
attorney shall not agree to the amendment of the charge to a lesser offense and
shall oppose the amendment of the charge at trial, unless all prosecution witnesses
are, and it is expected they will continue to be, unavailable for trial.
KRS 189A.120(l).
MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 24 ( 10th ed. 2002) .
motion to amend Jones's DUI fourth charge, we would ultimately have to come
to the illogical conclusion that the Commonwealth did not "agree" to the very
action sought by its own motion . Or, in other words, how can it logically be
said that the Commonwealth did not "agree" to the amendment of Jones's
charges when the Commonwealth itself sought those amendments?
And we see no indication in the plain language of KRS 189A.120(1) that
would cause us to conclude that the Commonwealth is only prohibited from
concurring in a defendant's motion to amend a DUI charge while remaining
free to seek such an amendment on its own. Such a conclusion would be
illogical. Why would the General Assembly enact a statute that would forbid
the Commonwealth from agreeing to an action if proposed by a defendant but
that would allow the Commonwealth to seek that very same action on its own?
By contrast, the proper construction we have given KRS 189A.120(1) causes
that statute to stand for the clear and logical proposition that the
Commonwealth may not join a defendant's motion to amend DUI-related
charges, nor may the Commonwealth seek such an amendment on its own . So
the possibility of prosecutorial word games is eliminated . After all, tortured
semantics and word games simply cannot magically convert a DUI fourth
offense into a DUI second offense .
We fully recognize the wide latitude normally given to prosecutors to
determine what charges, if any, to bring against a potential defendant . 12 And
we have adopted the federal courts' view that an "independent" motion by a
12
See, e.g., Flynt v. Commonwealth , 105 S.W.3d 415, 424 (Ky. 2003) .
prosecutor to dismiss or amend an indictment should be granted "unless
clearly contrary to manifest public interest ." 13 On this point, the General
Assembly has already expressed the public interest of this Commonwealth
through the enactment of KRS 189A.120(1), which quite plainly prohibits the
Commonwealth from agreeing to an amendment like the one in the case at
hand.
This case is unusual in that the amendments the Commonwealth
successfully sought did not appear to reduce the overall possible sentence
Jones faced . But KRS 189A.120 contains no escape hatch for the
Commonwealth, and a longstanding rule in this Commonwealth prohibits a
court from judicially creating and grafting exceptions onto a statute when the
General Assembly did not see fit to do So. 14 So we may not graft a judicially
created exception onto the simple and plain language of KRS 189A.120(1) to
permit the Commonwealth to agree to the reduction of DUI-related charges so
long as the reduction would not reduce a defendant's possible sentence .
Although it is possible that the General Assembly may have intended only for
the Commonwealth to refuse to accede to a reduction that would have lessened
a defendant's ultimate sentence, we must construe the statutes as enacted;
13 Hoskins v. Maricle , 150 S .W.3d 1, 24 (Ky. 2004) .
14 Hawley Coal Co. v. Bruce, 252 Ky. 455, 67 S.W.2d 703, 705 (1934) ("Where the
Legislature has made no exception to the positive terms of a statute, the
presumption is that it intended to make none, and it is not the province of a court
to introduce an exception by construction . The power to create exceptions by
construction can never be exercised where the words of the statute are free from
ambiguity, and its purpose plain.") (citations omitted) .
and we may not "speculate what the General Assembly may have intended but
failed to articulate . . .
."15
IV. CONCLUSION .
The opinion of the Court of Appeals is reversed. Jones's convictions are
vacated, and this matter is remanded to the trial court for proceedings
consistent with this opinion. 16
Minton, C.J . ; Abramson, Cunningham, Noble, Scott, and Venters, JJ .,
sitting. Abramson, Noble, Scott, and Venters, JJ., concur . Cunningham, J .,
dissents by separate opinion . Schroder, J., not sitting.
CUNNINGHAM, J., DISSENTING: I respectfully dissent. This Court
ignores the unique prerogatives of the prosecutor within our legal framework.
In Fly t v . Commonwealth , this Court stated that "it is beyond dispute that the
executive branch's prosecutorial function includes `the decision whether or not
to prosecute, and what charge to file or bring before a grand jury[.]'
105 S .W.3d 415, 424 (Ky. 2003), quoting Commonwealth v. McKinney,
594 S .W.2d 884, 888 (Ky.App . 1979), in turn quoting Bordenkircher v. Ha ryes ,
434 U .S . 357 (1978) . Further, in Hoskins v. Maricle , this Court recognized that
"an `independent' motion by a prosecutor to dismiss or amend an indictment
must be sustained unless clearly contrary to manifest public interest."
is Peterson v. Shake , 120 S.W.3d 707, 709 (Ky. 2003) .
16 Because this case may be resolved through
our interpretation of KRS 189A.120(1),
it is unnecessary for us to analyze Jones's alternate argument that the
Commonwealth's actions also violated KRS 189A.010(5)(d), which provides that a
person who operates a motor vehicle while under the influence of alcohol for a
fourth or subsequent offense shall "be guilty of a Class D felony."
150 S .W.3d 1, 24 (Ky. 2004) (citation omitted) . In this case, the
Commonwealth did not act contrary to the public's interest in amending the
charge . In fact, it amended the charge so as to seek a more severe penalty
than would have been available otherwise . Further, the Commonwealth clearly
had the authority to seek this combination of charges in the initial indictment .
The language of KRS 189A .120(1) prevents the prosecutor from agreeing
to a request to amend the DUI charge . Further, it mandates that the
prosecutor oppose a defense motion to amend the charge to a lesser offense .
However, the language in KRS 189A.120 does not expressly prohibit a
prosecutor from exercising independent discretion and seeking a more severe
penalty under these circumstances . Further, in light of the prosecutor's
authority set out above, such action falls squarely within the authority
reserved to the prosecutor . In turn, once the Commonwealth exercises its
authority in seeking to prosecute the facts under an offense other than a
"fourth or subsequent offense," the language of KRS 189A.010(5)(d) has no
application. Neither do I agree with the majority's understanding of "agree." It
is clear from its reading that the whole purpose of KRS 189A .020(1) is to
prohibit the defendant from procuring a reduced charge through plea
negotiations . Otherwise, it would have been a simple matter for the legislature
to have written that "a prosecuting attorney shall not move to amend the charge
to a lesser offense . . . ."
For these reasons, I cannot join the majority opinion .
COUNSEL FOR APPELLANT:
V. Gene Lewter
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Courtney J. Hightower
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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