Opinion
NO. 2017-CA-001130-MR
07-20-2018
THOMAS MICHAEL OVERSTREET APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND II, JUDGE
ACTION NO. 16-CR-00758 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES. DIXON, JUDGE: Thomas Michael Overstreet entered a conditional guilty plea to operating a motor vehicle under the influence (DUI), fourth offense, reserving his right to appeal the Boone Circuit Court's denial of his motion challenging the application of the amended version of Kentucky Revised Statutes (KRS) 189A.010. After careful review, we affirm.
Overstreet was arrested on October 3, 2016, and in addition to other charges not related to this appeal, he was charged with a DUI, fourth offense. KRS 189A.010 is the principal governing statute for DUI offenses. The statute provides enhanced penalties for subsequent DUI offenses committed during a specified timeframe, which is considered the "lookback period." The statute was amended, and the amended version became effective immediately on April 9, 2016, when the Governor signed Senate Bill 56 into law.
Overstreet had three prior DUI convictions from 2009, 2013, and 2014. At the time of those convictions, the lookback period under KRS 189A.010(5) was five years. Without the amendment to KRS 189A.010, Overstreet's 2009 DUI conviction could not have been used to enhance his new charge to a felony because it occurred more than five years prior to the new offense. However, the amended ten-year lookback period allowed the Commonwealth to obtain an indictment for DUI, fourth offense.
Overstreet filed a motion challenging the application of the amended version of KRS 189A.010 to enhance his offense to a felony. The trial court denied this motion. Overstreet then entered a conditional guilty plea to DUI, fourth offense. He was sentenced to a five-year probated sentence. He reserved his right to appeal the trial court's denial of his motion relating to the DUI charge. This appeal followed.
Overstreet's appeal was held in abeyance pending the Supreme Court of Kentucky's decision in Commonwealth v. Jackson, 2016-SC-00530, and Commonwealth v. Denson, 2016-SC-00531. As in the case before us, the defendants in those cases were charged with DUI, fourth offense, after the effective date of the 2016 amendment to KRS 189A.010. On September 28, 2017, the Supreme Court rendered its consolidated opinion in those cases. Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017). The opinion became final on October 19, 2017, and this appeal was returned to the active docket.
In this appeal, Overstreet challenges the applicability of the new ten-year lookback statutory provision on three grounds: (1) it violates contract law; (2) it violates the principles of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); and (3) it violates the prohibition against ex post facto laws and is being improperly applied retroactively. The Commonwealth urges us to affirm the Boone Circuit Court's ruling in light of the Jackson opinion.
All three of Overstreet's arguments were addressed and subsequently rejected in Jackson. The court held that although plea agreements are contracts, any reference to the prior five-year lookback period was "not intended to constitute an immunization" from statutory changes to the DUI statute. Id. at 745. Regarding the ex post facto violation, the court cited to its decision in Commonwealth v. Ball, 691 S.W.2d 207 (Ky. 1985) (holding that ex post facto principles were not implicated in the enactment of a statute enhancing DUI penalties for subsequent offenses), in holding that the amended statute does not create a new offense, but simply imposes different penalties based on the status of the defendant. Id. at 746. Lastly, the court held that the requirements of Boykin are not violated when unforeseeable legislative changes occur long after the plea colloquy took place. Id. at 747.
Jackson has direct precedential effect on this appeal, and pursuant to Rules of the Supreme Court (SCR) 1.030(8)(a), this Court is without authority to overrule the Supreme Court's decision in Jackson. Thus, pursuant to Jackson, we must reject Overstreet's arguments for the same reasons.
Based on the foregoing, the order of the Boone Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Steven J. Buck
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky