RENDERED: SEPTEMBER 28, 2017 TO BE PUBLISHED

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(2016-CA-OO 1399-MR)

COMMONWEALTH OF KENTUCKY



### v. ON APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN GRISE, JUDGE NO. 16-CR-00635 I JOSHUA DEANTE JACKSON
.

AND 2016-SC-000531-TG (2016-CA-OO 1400-MR)

COMMONWEALTH OF KENTUCKY


### v. ON APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN GRISE, JUDGE NO. 16-CR-00645 TELLY SAVALAS DENSON ) OPINION OF THE COURT BY JUSTICE VENTERS REVERSING APPELLANT

APPELLEE

APPELLANT

APPELLEE

In April 2016, the Governor signed l.nto law SB 56, which amended KRS 189A.010, Kentucky's principal driving under the influence o(alcohol (DUI),../ statute. Subsection (5) ofKRS 189A.010 provides substantially enhanced penalties for subsequent DUI offenses committed within a specified time frame, which we refer to as the "look-back" period. Subsequent offenses committed after the look-back period are not subject to enhancement. The 2016·amendmentincreased the look-back period from five years to ten years. By the terms ofthe bill, the new ten-year look-back period went into effect immediately. Obviously, the expanded ten-year look-back period will capture more prior DUI offenses than the former five-year period. Correspondingly, the additional five years duringwhich DUI offenses can serve
as penalty-enhancing prior offenses means that more DUI offenders.with prior DUI convictions will be subject to enhanced sentences.. A unique issue, created by-the 2016 amendment ofthe look-back period, arises in the cases now before this Court. ·In separate prosecutions in the Warren Circuit Court, Joshua Deante Jackson and Telly Sayalas Denson were charged with DUI, Fourth Offense, for offenses that occurred after the newlyamended version ofKRS 189A.010.became effective. Both defendants had prior convictions for,DUI offenses including one committed more than five years but less than ten years· prior to his current, and thus beyond the fiveyear·look-back period ofthe former law, butwithin the ten-year**look-bacl~** period ofthe current law. The circuit court held that the convictions exceeding the former five-year / look-back period couldnot be used to elevate the current DUI charges to DUI, Fourth Offense. The Commonwealth appealed to the Court ofAppeals. /
2**R~cognizing** the matter as one of"great and immediate public**import~nce,"** pursuantto CR 74.02, we accepted transfer ofthe appeal. For the reasons explained below, we conclude that the trial court erred by excludingJackson's 2009 and Denson's 2011 offenses from use as enhancing prior DUI convktions.

I I. FACTUAL AND' PROCEDURAL BACKGROUND

. '

.As noted above, the Commonwealth charged each defendant with DUI, Fourth Offense, and the offense was committed after the 2016 revision ofKRS 189A.010. As predicates for the DUI, Fourth Offense, charges, Jackson and Denson each had at least three prior DUI convictions, two ofwhich were committed within five years ofthe current charge, but one ofwhich preceded the current offense by more than five years, butless.than ten years. Jackson's applicable charge was incurred October 9, 2008, in Warren County and he entered his guilty plea on March 3, 2009; Denson's applicable charge was incurred August 26,**~010,** in Bullitt County and he pled guilty to the**char~e** on March 2, 2011. · As pertinenthere, Jackson's 2009 DUI conviction and Denson's 2011 DUI conviction were each based upon a written pfoa agreement that included the following standardized language: 5
.... Should I be convicted ofadditional DUI offenses or operating on a suspended license offenses, penalties will be increased with each conviction. 6. I understand ifI plead GUILTY, the Courtmay impose any punishmentwithin the range.provided by law
.... The legal DUI penalty ranges are: (a) First Offense Within 5 Years [penalties stated]
. . . . (b) 3Second Offense Wjthin 5 Years [penalties stated]
.... (c) Third Offense Within 5 Years [penalties stated]
.... (d) Fourth or Subsequent Offense Within 5 Years [penalties stated].1 ·· 1 The plea agreements correctly stated the sentencing scheme applicable

- / when each DUI charge was incurred, including the-then-currentfive-year lookback**peri~d** provided in the pre-2016 version ofKRS 189A.010. r Just after the effective change ofthe look-back period, Jackson and Denson were each charged with DUI, Fourth Offense, based in partupon their respective 2009 and 2011 convictions. Under the former version ofKRS 18.9A.010, these offenses could not be used to enhance a DUI committed in

I , . 2016 because the five-year look-back limitation had expired. But, under the

· 2016 version ofKRS 189A.010, they each fit easily within the ten-year)ookbackperiod. Jackson and Derison, represented by the same attorney, each filed a motion in the circuit court challenging their prosecutions as fourth-time offenders. They presented three grounds for relief: 1) the**app~ication** ofthe 2016 amendment to their pre-2016 conviction violates 

### expostfactoprinciples;· 2) the amendment was "entrapmentby estoppel";2 and 3) respectively, the use ofthe 2009 and 2011DUI convictions violates due process under 

### Boykin because each defendant was informed at the time ofhis guilty plea that his

1 Denson's Bullitt Countyplea agreement hadthe additional relevantparagraph: "I understand thatbecause ofmy conviction here today, I maybe subjectedto greater/enhanced penalties iffound guilty and/or convicted ofanyfuture criminal offenses
...**~,,** 2 The defendants abandoned their "entrapmentby estoppel" argument and so we do not further address·thattheory ofreμef. '- 4crime exposed him to penalty enhancements only for future DUis committed withinfive years. The trial courtwas not persuaded by these arguments, and instead concluded 

### suaspohte that the provisions ofthe 2009 and 2011 plea agreements quoted above created enforceable contractual provisions which assured Jackson and Denson that their convictions could not enhance subsequent DUI offenses committed after five years. The circuit court therefore ruled that, d,espite the 2016 amendment allowing a ten-year retrospective period for prior DUis, using prior offenses more than five years old to enhance the penaltyfor 2016 offenses**wo~ld** violate contractual rights established in the defendants' plea agreements. The Commonwealth appealed both rulings to the Court ofAppeals. We accepted transfer pursuantto CR 74.02. II. PLEA AGREEMENT CONTRACT PRINCIPLES DO NOT BAR APPLICATION OF THE NEW RULES The Commonwealth challenges on appeal the trial court's contract rationale for barring'the use ofthe 2009 and 20**~** 1 convictions to enhance the penalty applicable to the 2016 offenses. The Commonwealth acknowledges, and we reaffirm that "[g]enerally, plea agreements in criminal**case~,** are \**con~raets** between the accused and the Commonwealth, and are interpreted according to ordinary contract principles." 

### McClanahan V; 

### Comrrwnwealth, 308 S.W.3d 694, 701 (Ky. 2010) (citations omitted); 

### accord Smith v. Commonwealth, 400 S.W.3d 742, 744 (Ky. 2013) ("[T]his Court applies traditional principles of contraCt law wheninterpreting and enforcing plea agreements."). The 5 )"- interpretation ofa contract is a question oflaw to be determined 

### de novo on appellate review. 

### Kentucky ShakespeareFestival, Inc. v. Dunaway, 490 S.W.3d 691, 695 (Ky. 2016) (citation omitted). "Once a plea agreement is accepted by a

- I - defendant, the agreement is bindingupon the Commonwealth-subjectto approval by the trial court-and the accused is entitled to the benefit ofhis bargain." 

### Elmore v. Commonwealth, 236 S.W.3d 623, 626 (Ky. App. 2007) (citations omitted). The Commonwealth accepts that contractprinciples generally govern plea agreement issues,3 butit disputes the trial court's interpretation ofthe 2009 and 20I1 plea agreements as having created

# acontractual promise to Jackson and Denson, respectively, that their convictions could only enhance

-future DUI offenses committed within the five-year limitation ofthe version of

KRS 189A.010 applicable,at that time. Upon revie;w ofthe 2009 and 2011 guilty pleas, we agree thatJackson and Denson were not promised, nor were

. \ they reasonably induced to believe, that their pleas in these cases would never be used to enhance the penaltyfor a subsequentDUI conviction more than five years in the future. (\

3 We hasten to add thatplea agreements are also governed by due process analysis. Because a defendantpleading guiltypursuant to a plea agreement waives several fundamental constitutionalrights, seeBoykin v. Alabama,, 395 U.S. 238, 243 (1969), the circumstances surrounding the plea agreement'must comportwith due process to ensure defendant's understanding ofits consequences._The notion offundamental fairness embodied in due process implies that whatever promises the government makes in the course ofa plea agreementto induce a guiltypleamust be fulfilled; Spence v. Superintendent, GreatMeadow Correctional Facility, 219 F.3d 162, 167 (2d Cir. 2000) (mternal citations omitted). 6Jackson's and Denson's arguments, and the trial court's decision in each. case, rely only on the two sections .ofthe plea agreement quoted**~hove.** The plea agreements clearly explained that DUI penalties "will be increased with each conviction," but neither agreement promised a time limit to the period for which the conviction could be used as a penalty enhancement offuture DUI

·convictions. The only reference to a five-year period is the section ofthe plea

agreement that accurately details the range ofpenalties applicable at 'the time ofthe plea. That provision does not promise that DUI convictions can only be used to enhance penalties offuture offenses for five years. Thatprovision relates only to the crime being pled, and says nothing about the penalty for subsequent DUI violations. We do not believe itwould be reasonable for a defendant pleading guiltyunder the agreement to infer from some combination ofthe two provisions that the future**r~mifications** ofhis conviction would cease after five years. Theywere not told that, and the plea agreement contract does not say that. We reject the contentions ofJackson and Denson that the plea agreement contains a five-year look-back period. Utilities Electrical Machine Corp. v..Joseph E. Seagram & Sons, 187 S.W.2d 1015, 1018 (Ky. 1945), held that the meeting ofthe minds was "the most essential factor to constitute a binding contract." Objectively, we conclude from the language employed in the plea agreement that a reasonable person could not construe the intent ofthe boilerplate language parroting the statutoryrange ofpenalties for a DUI conviction as a promise by the Commonwealth limiting the future effect ofthe conviction so as to immunize
. 7the defendant forever thereafter from future legislative modifications ofthe look-back period. That'clearly is not the purpose ofth.e language relied upon; and ifindeed such was the intent ofthe parties, then the expectation would be that such a crucial limitation would be prominently featured instead ofbeing embedded ambiguously in an informational provision whose primarypurpose is to explain·the range ofpenalties applicable to the specific conviction. Similarly, frbm a subjective perspective, we are not persuaded that either the defendants, defense counsel, the prosecutors, or the presidingjudge left the courtroom after completing the guilty pleas with the beliefthat the .plea agreement had locked-in the statutoryfive-year look-back period. Realistically, that concern, ifit existed at all, was not part ofthe agreement. Itis also worth noting that, under the defendants'theory, a DUI defendant who had incurredthe same prior DUI offenses on the same previous dates butwho went to trial instead ofpleading guiltywould have no cognizable claim to the exemption from the 2016 amendment, while the similarly situated defendant pleading guiltywould be exempted. This theory produces an absurd result, which further supports our conclusion that this was not the intent of the plea agreement language relied upon by the defendants. We further note with interest that courts in Californiahave addressed virtually the same issue, under substantially similar plea agreement terms. 

### SeePeople v. Sweet, 207 Cal. App. 3d 78 (Cal. App. 2d Dist. 1989); 

### People v. Forester, 156 Cal. App. 4th 1021 (Cal. App. 2d Dist. 2007). Those courts, too,

8examined and rejected the contractual theory applied here by the trial court and urged now byJackson and Denson. In summary, we conclude that language in DUI agreements such as that in this case, and similar allusi.ons to the five-year look-back period which may have occurred during the pleabargain process, were not intended to constitute
an immunization ofDUI defendants from the 2016 changes to the DUIstatute, and so may not be relied upon bydefendants to avoid the application ofthe I)ew look-back period.

III. THE ALTERNATIVE GROUNDS.RELIED UPON BY JACKSON AND DENSON FOR AFFIRMING THE TRIAL COURT'S DECISION ARE UNPERSUASIVE Jackson and Denson cite**altern~tive** grounds upon which we might affirm the trial court ifwe are otherwise disposed to reject the proffered contractual theory. We consider each argument in turn. 1) Application ofthe 2016 amendments to KRS**189~.010** does not violate 

### expost facto principles or KRS 446.080(3). The defendants argue that the new look-back rule should'not be applied to their post-April 2016 DUI charges because the application ofthe newer statute \\l'Ould violate 

### expost facto principles prohibited under both the United States Constitution and the Kentucky Constitution. U.S. Const. art. I,§ 10;4

4 "No State shall
... pass any Bill ofAttainder, expostfacto Law, or Lawimpairingthe Obligation ofContracts, or grant anyTitle ofNobility." 9Ky. Const.§ 19(1).s They further argue that**applicati~n** ofthe amended look-

,, back period would violate the retroactivity rules contained in KRS 446.080(3). An 

### expost facto law is any law, which criminalizes 

### ari act thatwas innocentwhen done, aggravates or increases the punishment for a crime as compared to the punishmentwhen the**crim~** was committed, or alters the rules ofevidence to require less or different proofin order to convict than what was necessary when 'the crime was committed. The key inquiry is whether a retrospective law is punitive. 

### Buck v. Commonwealth, 308 S.W.3d 661, 664-65 (Ky. 20_10) (citations omitted);


### see also Pate v. Department ofCorrections, 466 S.W.3d 480, 486-87 (Ky. 2015) (In determining whether a statute_violates the constitutional 

### expost facto prohibition, courts must considerwhether the law imposes a punishment for
an actwhich was not punishable at the time itwas committed, or imposes additional punishmentto that then prescribed.) The defendants' 2016 DUI offenses were committed 

### afterthe effective date ofthe 2016 amendment ofKRS 189A.010 extending the DUI prior offense

.**~** ' look-back period from five years to ten years. They are not**~harged** with a crime thatwas legal when committed butwas rendered**ill~gal** by the 2016 amendment. Because their current crime was committed after the 2016 amendment, it cannot be**s~d** that the amendment aggravated or increased the punishment beyond the applicable punishmentwhen the crime was. committed. The_2016 amendment did not alter the rules ofevidence to require

### les~ proofor different proofto convict than what was'necessary

### ~hen the crime

s "No expost facto law:, nor anylawimpairingthe obligation ofcontracts, shallbe enacted:" 10was cdmmitted. Because the 2016 amendmentwas in effect when the crimes under review were committed, 

### expost facto principles cannot preclude its application to the crimes under review. The defendants also argue that the April 2016 amendment should not be applied to them as the amended statute fails to state an intentfor retroactive application. KRS 446.080(3) pro"."ides that "No statute shall be construed to be retroactive, unless expressly so declared." 

### See also, KRS 446.110 ("No new law shall be construed to repeal a former law as to any offense committed against a former law
...."). Again, however, because the crimes under review were allegedly committed 

### afterthe effective date ofthe 2016 amendment, the defendants are being**prosecut~d** under the statute that was in effect at the time oftheir alleged crimes; There is no retroactive**~pplication** of_a new lawto
a situation that occurred before the law became effective.· Under essentially these identical circumstances, we previously held that any new DUI penaltyprovisions as contained in the amended statute may be applied to the new DUI charges.- In 

### Commonwealth v. Ball, 691 S.W.2d 207

. . ·(Ky. 1985), the defendant had a prior DUI conviction obtained before the enactment ofthe statute enhancing the penalties for subsequent DUI offenses, KRS 189A.010. When the same defendant was_charged with another DUI after the enactment ofKRS 189A.010, we held that 

### expostfactoprinciples posed no barrier to using the first conviction to enhance the penalties for the latter conviction. We said thatthe new statute did not create a new offense, but

'\ 11merely imposed different penalties on the same criminal act depending on the
. status ofthe offender. The same principle is applicable here. Based.upon the authorities cited above, we agree with the circuit court's· conclusion that application ofthe new look-back period to current charges \ against**Ja~kson** ahd Denson is not barred by**~xpostfacto** principles and is not being impro:perly applied retroactively. 

### 2) Boykin v. Alabamadoe$ notbar the application ofthe 2016 ·an:iendment ofKRS 189A.010. The defendants also argue that the application ofthe amended new lookbackperiod violates the requirements of

### Boykin v. Alabama, 395 U.S. 238 (1969). 

### Boykin sets forth the constitutional mandates applicable to guilty pleas. More specifically 

### Boykinrequires that when a plea ofguilty is entered in

. - ' a state criminal triru, the record must affirmatively show t.hat the defendant
was informed of, and waived, his privilege against compulsory selfincrimination; his right to a trial byjury; and his right to confrop.t his accusers. ·Id. at 243. Waiver ofthese three important federal rights cannotbe presumed

from a silent record. Id. The fact that subsequent legislative measures may unforeseeably alter the consequences and effects ofthe criminal conviction does not take the plea retrospectively outside the scope ofthe 

### Boykinrequirements. A plea entered without knowledge ofunanticipated and unforeseeable consequences that may · not become manifest for manyyears does not have the constitutional



## . ' significance ofa plea entered without knowledge ofits immediate foreseeable
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### con~equerices, or in ignorance ofthe fundamental rights to remain silent, to a Jury trial, and to confrontwitnesses. Thus, we are unpersuaded that the defendants' 2009 and 2011 guilty pleas, undertaken in ignorance oflegislative changes years in the future; fall within the scope of

### Boykin.

IV. CONCLUSION ' For the foregoing reasons, thejudgments ofthe Warren Circuit Courtin 

### Commonwealth v. Jackson and 

### Commonwealth v. Denson are reversed, and the
cases are remanded for additional proceedings consistentwith this opinion. All sitting. All concur.

COUNSEL FORAPPELLANT: Andy Beshear Attorney General PerryThomas Ryan AssistantAttorney General
COUNSEL FORAPPELLEES:

- StevenJared Buck

Assistant Public Advocate Department ofPublic Advocacy COUNSEL FORAMICUS CURIAE KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS: James David Niehaus ProfessionalArts Building, 4th Floor 730 W. Market Street Louisville, KY 40202 Amy Irene Hannah . /

13President, KACDL P.O. Box 326 Hebron, KY 41048
Joshua Michael Reho Advocacy Plaza 719 WestJefferson Street Louisville, KY 40202

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