COMMONWEALTH OF KENTUCKY
MARSHALL CIRCUIT COURT
INDICTMENT NO. 05-CR-00095
COMMONWEALTH OF KENTUCKY PLAINTIFF
MOTION TO AMEND CHARGE
AND APPLICATION TO ORDER A PRIOR CONVICTION TO BE NOT USED TO ENHANCE PENALTIES
vs AND
MOTION REMAND TO DISTRICT COURT
JONATHAN XXXXXXXX DEFENDANT
******************************************************
Comes now Defendant, through Counsel, and respectfully moves this Court pursuant to amend the charge in this case from DUI 4th Offense to DUI Suspended 3rd Offense, and remand this case to District Court. In support of such motion, the Defendant would show as follows:
I. The Charge
Defendant is charged with DUI 4th offense, which is a Class D felony. In order to get the enhanced penalty for a 4th offense, the Commonwealth must prove his prior three convictions beyond a reasonable doubt.
II. Defendant’s Driving History
The following information is taken from a driving record provided to the Defendant by the Commonwealth. It is too light to be copied, but will be available at the hearing for court inspection. Of key importance is the fact that his most recent conviction for DUI occurred in Livingston County on December 5, 2004. That conviction is listed as being a conviction for a “1st” DUI. At that time, the Defendant recalls being told the penalties that he would receive in the event he got another DUI. Those penalties were the penalties for a “2nd” DUI, not a 4th.
III. Under Boykin v. Alabama and KRS 189A.310 this Court should not consider for enhancement purposes Defendant’s last prior conviction for DUI.
Defendant Jonathan XXXXXXXX was represented by counsel during his last conviction for DUI. Tragically, that attorney is now deceased and unavailable for this hearing. However, Defendant asserts that at the time that he entered his guilty plea, he did so to a “1st” DUI, and was informed that the penalties for a subsequent DUI would be those penalties which are referenced for a 2nd DUI in the statute. Because the Defendant thought that he would be facing penalties for a 2nd, not 4th, DUI in the event of a subsequent conviction, his plea in that case should not be considered for enhancement purposes because it was not “knowing, intelligent and voluntary” as those terms are used in the context of guilty pleas.
The Supreme Court in Boykin v.Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S. Ct. 1709 (1969) held that a guilty plea must be voluntarily made, and applied the same standard to entry of guilty plea that the Court had previously applied to a waiver of counsel:
Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.
We think the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality.
In this case, at the time of his last conviction, Defendant did not understand that even though he was pleading to a “1st” DUI, the Commonwealth could consider it a “3rd” offense at a later time. Defendant may have known he was guilty of prior offenses, but not being a lawyer, he should not be charged with knowing that the Commonwealth could consider a “1st” DUI as a “3rd” DUI for enhancement purposes. After all, he was informed of the penalties for a 2nd DUI. He does not recall ever being told that if he pled to this 1st DUI, his next one would be a felony. Under Boykin, Defendant’s guilty plea was not voluntary, as defined by the Supreme Court.
Of course, this Court is without authority to set aside the prior convictions. However, it can and must decide not to use the prior convictions for enhancement purposes. KRS 189A.310 “Attacking Admissibility of Prior Convictions to Enahnce Penalties” provides that:
(1) A court may, upon application of the defendant or attorney for the Commonwealth or upon its own motion, and if the facts of the case so indicate, order that a prior conviction not meeting applicable case law regarding admissibility of a prior conviction cannot be used to enhance criminal penalties including license suspensions or revocations, or for other purposes for which such a conviction might be used.
(2) The Transportation Cabinet shall give full faith and credit to any court decision meeting the requirements of this section.
Thus, not only does Kentucky statutory law allow for involuntary guilty pleas not to be used for enhancement purposes, it actually anticipates that “Boykin motions” will be used to order such prior convictions not be used to enhance.
Defendant’s charge should be amended from DUI 4th to DUI 3rd offense
V. Remand to District Court is appropriate.
In Kimbro v. Lassiter, 645 S.W.2d 860, 861 (Ky. 1983), the Supreme Court held that where a felony and misdemeanor are originally joined pursuant to RCr 6.18, but are later separated, the circuit court may remand the misdemeanor to the district court for disposition:
The statute and case law is clear. The district court has exclusive jurisdiction of a misdemeanor unless it is joined with a felony. When the felony was dismissed, the circuit court was correct in remanding the remaining misdemeanor charge to the district court for trial.
Hence, upon amendment of the felony charge of driving on a DUI suspended license, 3rd offense to a 1st offense, there is no longer any felony before this court, and this case should be remanded to Marshall District Court.
WHEREFORE, Defendant prays that his charge be amended to DUI 3rd Offense and that regardless, the case be remanded to District Court for trial and/or disposition.
Respectfully,
______
B. Scott West
Asst. Public Advocate
503 N. 16th St.
Murray, KY 42071
(270) 753-4633
NOTICE OF HEARING
The Commonwealth will please take notice that a hearing on the above motion will be heard in Marshall District Court on the 5th day of March, 2007 at 9:00 a.m., or prior to trial on March 7, 2007, or at the Court’s pleasure.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing motion was sent via U.S. Mail, postage pre-paid or hand-delivery, to Hon. Mike Ward, Commonwealth Attorney, Marshall Judicial Center, on this ______day of February, 2007.
______
B. Scott West
2