                                           RENDERED: SEPTEMBER 28, 2017
                                                       TO BE PUBLISHED

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                             20 l 6-SC-000530-TG
                              (2016-CA-OO 1399-MR)




COMMONWEALTH OF KENTUCKY                                           APPELLANT


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



JOSHUA DEANTE JACKSON .                                             APPELLEE



AND

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




COMMONWEALTH OF KENTUCKY                                           APPELLANT

                    ON APPEAL FROM WARREN CIRCUIT COURT
v.                      HONORABLE JOHN GRISE, JUDGE
                               NO. 16-CR-00645

TELLY SAVALAS DENSON
                )
                                                                    APPELLEE


             OPINION OF THE COURT BY JUSTICE VENTERS

                                 REVERSING


      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) of KRS 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·amendment increased the look-back period from five years to

    ten years. By the terms of the 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 during which 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 of the 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 newly-

    amended version of KRS 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 five-

    year· look-back period of the former law, but within the ten-year   look-bacl~


    period of the current law.

          The circuit court held that the convictions exceeding the former five-year

/   look-back period could not be used to elevate the current DUI charges to DUI,
                                                                                       /
    Fourth Offense. The Commonwealth appealed to the Court of Appeals.

                                            2
R~cognizing   the matter as one of "great and immediate public import~nce,"

pursuant to CR 74.02, we accepted transfer of the appeal.

      For the reasons explained below, we conclude that the trial court erred

by excluding Jackson'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 of KRS

189A.010. As predicates for the DUI, Fourth Offense, charges, Jackson and

Denson each had at least three prior DUI convictions, two of which were

committed within five years of the current charge, but one of which preceded

the current offense by more than five years, but less.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 pertinent here, 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 of additional DUI offenses or operating on a
      suspended license offenses, penalties will be increased with each
      conviction.
      6. I understand if I plead GUILTY, the Court may impose any
      punishment within the range.provided by law .... The legal DUI penalty
      ranges are: (a) First Offense Within 5 Years [penalties stated] . . . . (b)
                                        3
         Second Offense Wjthin 5 Years [penalties stated] .... (c) Third Offense
         Within 5 Years [penalties stated] .... (d) Fourth or Subsequent Offense
                                                                  1
         Within 5 Years [penalties stated].1                   ·

         The plea agreements correctly stated the sentencing scheme applicable -
                                                                                            /




 when each DUI charge was incurred, including the -then-current five-year look-

 back peri~d provided in the pre-2016 version of KRS 189A.010.
r
         Just after the effective change of the look-back period, Jackson and

 Denson were each charged with DUI, Fourth Offense, based in part upon their

 respective 2009 and 2011 convictions. Under the former version of KRS

    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 of KRS 189A.010, they each fit easily within the ten-year)ook-

 back period.

         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       of the

 2016 amendment to their pre-2016 conviction violates expostfacto principles;·

 2) the amendment was "entrapment by estoppel";2 and 3) respectively, the use

 of the 2009 and 2011 DUI convictions violates due process under Boykin

 because each defendant was informed at the time of his guilty plea that his


 1Denson's Bullitt County plea agreement had the additional relevant paragraph: "I
 understand that because of my conviction here today, I may be subjected to
 greater/ enhanced penalties if found guilty and/ or convicted of any future criminal
 offenses ... ~,,
        The defendants abandoned their "entrapment by estoppel" argument and so
         2
 we do not further address ·that theory of reµef.                             '-

                                            4
crime exposed him to penalty enhancements only for future DUis committed

within five years.

      The trial court was not persuaded by these arguments, and instead

concluded sua spohte that the provisions of the 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 penalty for 2016 offenses   wo~ld   violate contractual rights established in
                                                                                      )
the defendants' plea agreements.

      The Commonwealth appealed both rulings to the Court of Appeals. We

accepted transfer pursuant to 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 of the 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 when interpreting and enforcing plea agreements."). The
                                           5
                                                    "-
interpretation of a contract is a question of law to be determined de novo on

appellate review. Kentucky Shakespeare Festival, 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 binding upon the Commonwealth-subject to

approval by the trial court-and the accused is entitled to the benefit of his

bargain." Elmore v. Commonwealth, 236 S.W.3d 623, 626 (Ky. App. 2007)

(citations omitted).

       The Commonwealth accepts that contract principles generally govern

plea agreement issues,3 but it disputes the trial court's interpretation ofthe

2009 and 20I1 plea agreements as having created      a contractual promise to
Jackson and Denson, respectively, that their convictions could only enhance

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

KRS 189A.010 applicable,at that time. Upon revie;w of the 2009 and 2011

guilty pleas, we agree that Jackson 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 penalty for a subsequent DUI conviction more than five

years in the future.
                          (\




3We hasten to add that plea agreements are also governed by due process analysis.
      Because a defendant pleading guilty pursuant to a plea agreement
      waives several fundamental constitutional rights, see Boykin v. Alabama,,
      395 U.S. 238, 243 (1969), the circumstances surrounding the plea
      agreement'must comport with due process to ensure defendant's
      understanding of its consequences. _The notion of fundamental fairness
      embodied in due process implies that whatever promises the government
      makes in the course of a plea agreement to induce a guilty plea must be
      fulfilled;
Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162,
167 (2d Cir. 2000) (mternal citations omitted).
                                         6
       Jackson's and Denson's arguments, and the trial court's decision in each.

case, rely only on the two sections .of the 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 of future DUI

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

agreement that accurately details the range of penalties applicable at 'the time

of the plea. That provision does not promise that DUI convictions can only be

used to enhance penalties of future offenses for five years. That provision

relates only to the crime being pled, and says nothing about the penalty for

subsequent DUI violations. We do not believe it would be reasonable for a

defendant pleading guilty under the agreement to infer from some combination

of the two provisions that the future   r~mifications   of his conviction would cease

after five years. They were not told that, and the plea agreement contract does

not say that. We reject the contentions of Jackson 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 of the 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 of the boilerplate language parroting the

statutory range of penalties for a DUI conviction as a promise by the

Commonwealth limiting the future effect of the conviction so as to immunize .

                                          7
the defendant forever thereafter from future legislative modifications of the

look-back period. That 'clearly is not the purpose of th.e language relied upon;

and if indeed such was the intent of the parties, then the expectation would be

that such a crucial limitation would be prominently featured instead of being

embedded ambiguously in an informational provision whose primary purpose

is to explain· the range of penalties applicable to the specific conviction.

      Similarly, frbm a subjective perspective, we are not persuaded that either

the defendants, defense counsel, the prosecutors, or the presiding judge left

the courtroom after completing the guilty pleas with the belief that the .plea

agreement had locked-in the statutory five-year look-back period. Realistically,

that concern, if it existed at all, was not part of the agreement.

      It is also worth noting that, under the defendants' theory, a DUI

defendant who had incurred the same prior DUI offenses on the same previous

dates but who went to trial instead of pleading guilty would have no cognizable

claim to the exemption from the 2016 amendment, while the similarly situated

defendant pleading guilty would 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 California have addressed

virtually the same issue, under substantially similar plea agreement terms.

See People 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,



                                          8
examined and rejected the contractual theory applied here by the trial court

and urged now by Jackson 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 plea bargain process, were not intended to constitute

an immunization of DUI defendants from the 2016 changes to the DUI statute,

and so may not be relied upon by defendants to avoid the application of the

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 if we are otherwise disposed to reject the proffered

contractual theory. We consider each argument in turn.


1) Application of the 2016 amendments to KRS 189~.010 does not violate
   ex post 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 of the newer

statute \\l'Ould violate ex post 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 of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts, or grant any Title of Nobility."

                                           9
Ky. Const.§ 19(1).s They further argue that       applicati~n   of the amended look-
                                                                      ,,
back period would violate the retroactivity rules contained in KRS 446.080(3).

      An ex post facto law is any law, which criminalizes ari act that was
       innocent when done, aggravates or increases the punishment for a
      crime as compared to the punishment when the crim~ was
      committed, or alters the rules of evidence to require less or
       different proof in 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 of Corrections, 466 S.W.3d 480, 486-87 (Ky. 2015)

(In determining whether a statute _violates the constitutional ex post facto

prohibition, courts must consider whether the law imposes a punishment for

an act which was not punishable at the time it was committed, or imposes

additional punishment to that then prescribed.)

      The defendants' 2016 DUI offenses were committed after the effective

date of the 2016 amendment of KRS 189A.010 extending the DUI prior offense
                                    .                                       ~     '
look-back period from five years to ten years. They are not ~harged with a

crime that was legal when committed but was 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 punishment when the crime was.

committed. The _2016 amendment did not alter the rules of evidence to require

les~ proof or different proof to convict than what was 'necessary ~hen the crime


s "No ex post facto law:, nor any law impairing the obligation of contracts, shall be
enacted:"

                                            10
was cdmmitted. Because the 2016 amendment was in effect when the crimes

under review were committed, ex post 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 intent for 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 after the effective date of the 2016 amendment, the

defendants are being   prosecut~d   under the statute that was in effect at the

time of their alleged crimes; There is no retroactive   ~pplication   of _a new law to

a situation that occurred before the law became effective.·

      Under essentially these identical circumstances, we previously held that

any new DUI penalty provisions 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 of the statute enhancing the penalties for subsequent DUI offenses,

KRS 189A.010. When the same defendant was_ charged with another DUI after

the enactment of KRS 189A.010, we held that expostfacto principles posed no

barrier to using the first conviction to enhance the penalties for the latter

conviction. We said that the new statute did not create a new offense, but


                  '\




                                          11
merely imposed different penalties on the same criminal act depending on the .

status of the offender. The same principle is applicable here.

      Based .upon the authorities cited above, we agree with the circuit court's·

conclusion that application of the 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. Alabama doe$ not bar the application of the 2016
   ·an:iendment of KRS 189A.010.
      The defendants also argue that the application of the amended new look-

back period violates the requirements of Boykin v. Alabama, 395 U.S. 238

(1969). Boykin sets forth the constitutional mandates applicable to guilty

pleas. More specifically Boykin requires that when a -plea of' guilty 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 self-

incrimination; his right to a trial by jury; and his right to confrop.t his accusers.

·Id. at 243. Waiver of these three important federal rights cannot be presumed

from a silent record. Id.

      The fact that subsequent legislative measures may unforeseeably alter

the consequences and effects of the criminal conviction does not take the plea

retrospectively outside the scope of the Boykin requirements. A plea entered

without knowledge of unanticipated and unforeseeable consequences that may ·

not become manifest for many years does not have the constitutional
                                                      .                 '
significance of a plea entered without knowledge of its immediate foreseeable


                                           12
 con~equerices, or in ignorance of the fundamental rights to remain silent, to a

Jury trial, and to confront witnesses. Thus, we are unpersuaded that the

 defendants' 2009 and 2011 guilty pleas, undertaken in ignorance of legislative

 changes years in the future; fall within the scope of Boykin.


                                  IV.   CONCLUSION
                                         '
       For the foregoing reasons, the judgments of the Warren Circuit Court in

 Commonwealth v. Jackson and Commonwealth v. Denson are reversed, and the

 cases are remanded for additional proceedings consistent with this opinion.

       All sitting. All concur.



 COUNSEL FOR APPELLANT:

 Andy Beshear
 Attorney General

 Perry Thomas Ryan
 Assistant Attorney General


 COUNSEL FORAPPELLEES:

- Steven Jared Buck
  Assistant Public Advocate
  Department of Public Advocacy

 COUNSEL FOR AMICUS CURIAE KENTUCKY ASSOCIATION OF CRIMINAL
 DEFENSE LAWYERS:

 James David Niehaus
 Professional Arts Building, 4th Floor                                  .   /
 730 W. Market Street
 Louisville, KY 40202

 Amy Irene Hannah

                                             13
President, KACDL
P.O. Box 326
Hebron, KY 41048


Joshua Michael Reho
Advocacy Plaza
719 West Jefferson Street
Louisville, KY 40202




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