`MODIFIED: AUGUST _24, 2017
" RENDERED: APRIL 27, 2017
` TO BE PUBLISI-IED_

Supreme Tnuri of WHN A|Ll h

2015- SC- 000597- DG

|DATE§!M:_WMD¢

COMMONWEALTH OF KENTUCKY _ ' ~ APPELLANT

' , ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2014-CA-001467-MR
KENTON CIRCUIT COURT NO. 1:4-CR-0021 1

WILLIAM F-UGATE ' d APPELLEE

OPINION OF TH-E COURT BY JUSTICE WRIGHT

REVERSING

. William Fugate Was'arrested for operating a motor Vehicle on a DUI-
suspended license. Because it‘Was his third such offense in less than three l
years, the Commonwealth charged him With a Class D felony under the
penalty-enhancement provision in KRS 189_A.090(2)(c). Fugate challenged this
enhancement by collaterally attacking his earlier lconvictions, arguing that his
guilty pleas in those cases Were invalid under Boykin v. Alal_)ama, 395 U.S. 238
(1969), Which requires trial judges to ensure that guilty pleas are Inade
_ intelligently, knowingly, and-voluntarily before accepting them.

The circuit court1 rejected that challenge on the merits, and Fugate

conditionally pleaded guilty, reserving the right to appeal that decision. The

\\

Court of Appeals reversed the trial court’s ruling and vacated the judgment of `
conviction because it viewed the record as lacking sufficient evidence showing-
that Fugate’s past guilty pleas complied with the Boykin requirements
Because that court misapplied or ignored controlling precedent from this
Court, as explained below`, we reverse the Court'of Appeals’ opinion and

reinstate Fugate’s» conviction.

I. BACKGROUND

Police arrested Fugate in January 2014 for operating a motor vehicle on
a DUI-suspended driver’s license. Because he was twice convicted of the same
offense in 2012, the Commonwealth charged him under the enhancement
provision in KRS 189A.090(2)(c), which makes the third offense committed
within‘ 10 years a Class D felony (as opposed to a first-offense Class B
misdemeanor under KRs 189A.0_90(2)(a)).1

Fugate moved to suppress the evidence of his two 2012 convictions and
bar the Commonwealth from using them‘to enhance the 20 14 offense, and he
asked the circuit court to conduct an evidentiary hearing on the motion. In his '
motion, he claimed that his two guilty pleas in district court2 were invalid

under Boykin v. Alabama, 395 U.'S. 238 (1969), because the records in those

 

1 The indictment also included a count of first-degree persistent felony offender,
but the Commonwealth later dismissed that charge.

2 In both cases, Fugate pleaded guilty to irst-offense driving on a DUI-
suspended license. The -Commonwealth charged both as first offenses because their
arrest and conviction dates overlapped_in case no. 12-T-6856, he was arrested and
arraigned in May 2012 but did not plead guilty until August; in the other case, no. 12-
T-7448, he pleaded guilty on the same day of his arrest and arraignment in
June 2012. " '

2

cases contained nothing showing that he was informed 'of and made a knowing,
voluntary, and intelligent waiver of his constitutional rights.3 Instead, his
motion alleged, the audio record of his arraignments and pleas showed that he
was not represented by counsel or informed of his right to, counsel, did not
verbally waive any of his constitutional rights, and did not affirmatively say the
word guilty in responding to the judge’s questioning about whether he wanted
to plead guilty_. The motion added that, at the time he pleaded guilty in district
court, “he did not fully appreciate or understand the constitutional rights
which were ended by the entry of his guilty plea.”4 It also asserted that he did d
not understand his right to consult with an attorney or that the misdemeanor
convictions could be used to enhance a future offense to a felony.

The circuit court held a hearing during which it reviewed recordings of
the 2012 district-court proceedings The recordings of those cases showed that
the district court.recited the constitutional'rights and explained briefly the
consequences of pleading guilty to all;who were present before it took up their
individual arraignments. Later, the court reprised portions of that recitation in

n ` the course of questioning Fugate about whether he wanted to plead guilty

without having counsel appointed. In reciting the constitutional rights, the

 

3 Those constitutional rights that pleading guilty implicates, as laid out in
Boykin, are: 1] the privilege against compulsory self-incrimination, 2] the right to trial
by jury, and 3] the light to confront one’s accusers. 395 U.S. at 243. SQ a guilty plea
is only effective if it included an intelligent and voluntary waiver of those rights.

4 It actually said, “The Defendant states,” before listing what he allegedly did
` not know or understand about his rights, their waiver, and the significance of pleading
guilty. But as the Cornmonwealth points out, this suppression motion was signed by
counsel, not Fugate. Indeed, the record contains no testimony from Fugate himself.

3

judge was mostly: but not completely, comprehensive5 F`ugate confirmed that

' he understood what the district court had told him. The Commonwealth also
introduced to the circuit court evidence of Fugate’s driving record and
extensive criminal history. `Fugate did not testify.

The circuit court denied the suppression motion. In doing so, it .
addressed the merits of Fugate’s Boykin challenge, finding that his earlier pleas
were intelligent, knowing, and voluntary under'the totality of the
circumstances The court found that the district court’s explanations of his
rights had been adequate, rand that where Fu.gate may not have explicitly
expressed to the district court in those proceedings his understanding of every
one of those rights and the significance of waiving them by'pleading ‘guilty, his
statements and conduct demonstrated as much. In considering the totality of
.Fugate’s particular circumstances-as Kotas vi Commonwealth 565 S.W.2d
445, 447 (Ky. 1978), directs-».-the circuit court _also relied on Fugate’s lengthy
criminal record as further circumstantial proof that he indeed had understood
what his rights were and how pleading guilty would affect them.

Fugate appealed, and the Court of Appeals reversed. The Court of
Appeals acknowledged that Fugate’s failure to testify seemed to be fatal to his

claim m light ofmis\ court’s`hommgm conklin v. commonwealth 799" s.w.2d

 

5 As the Court of Appeals emphasized in reaching its decision, “while the trial
court mentioned some of a defendant’s constitutional.rights, he »did' not recite all of
them.” That court noted that the district court, in one of the cases, failed to mention
the right to a jury trial and, in both cases, failed to specify explicitly that entering a
guilty plea waived these constitutional rights '

4

, 582, 584_(Ky.-1990). Yet despite that, the Court of Appeals believedthat “to
affirm m this case would be disingenuous” because it could not say “with
confidence Fugate’ s pleas. . were intelligent, knowing,' and voluntary.”
Curiously, the Court of Appeals also declined 'to' reach the Commonwealth’s
procedural argument that this Coi.rrt’s precedent foreclosed lifugate*s collateral
Boykin attack. l l

'We' accepted the Commonweal`th’s request for review, and now reverse

-the Court of Appeals and reinstate the circuit court’__s judgment of conviction.

11. ANAL`Ysrs

A. Fugate’ s district-court convictions were not subject to collateral
attack 011_ Boykin matters in this case,

Fugate.did not appeal his district-court convictions which became final
years ago-instead, he only challenged them once the Commonwealth sought
lto use-them to enhance his offense in this case. So our review of the circuit
court’s rejection of Fugateis' collateral attack on his final convictions is different
from that on direct'appeal. S'ee Parke v. Raley, 506 -U.S. 20, 29-30 (1992). In
such reviews we take particular heed of_ a “presumption_ deeply rooted in our
jurisprudence: the ‘presumption of reginarity’ that attaches to` final judgments
even`when the question is waiver of constitutional rights.”~ Id. at 29 (citing
Johnson 1). Zerbst, 304 U. S. 458, 464 (1938)).

That presumption underlies the rule this Court laid out more than two
decades ago: that final convictions offered for enhancement purposes in later

proceedings will not generally be subject to collateral attack. See` Webb v.

Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995); McGui're v. Commonwealth
885 S.W.2d 931,. 937 (Ky. 1994); see also Ri-le_ij v. Commonwealth, 120 S.W.3d
622, 632 (Ky. 2003~)‘.,. Although ‘V_[/",ebb and McGuire involved attacks on prior
convictions being used for PFO_-enhancement purposes under KRS 532.080-, we
see no reason to treat the enhancement here any differently. As with the PFO\
statute, KRS 1898.090(2) requires “proof of the fact of [prior convictions] and
not their underlying Validity._” sll/Ic('.`rm're', 885 S.W.2d at 937.

'l`hat being said, we have also followed the United S_tates Supreme
Court’s lead in carving out an exception to that general rule. That exception
allows for such attacks only if the defendant “claims ‘a complete denial of
counsel in the prior pro'ceeding.”’ McGuire v. Commonwealth 885 S.W.2d at
937 (quotmg custis o. United storos, 51 1 U.s. 435,\ 489 (1994)). sur short of
claiming a complete denial of counsel, collateral review of final judgments of

" conviction being used for enhancement purposes in a subsequent proceeding is
unavailable.6

The Court of Appeals erred when it ignored that controlling precedent to
hold that Fugate’s prior convictions should be suppressed under Boykin v.
Ala'bama, 395 U.S. 238 (1969) (requiring that guilty pleas include an intelligent
and voluntary waiver of the constitutional rights to be free of compulsory self-

incrimination, to a jury trial, and to confront witness`es). To be sure, despite

 

6 Fugate points out that this Court has never expressly overruled our past cases
allowing these sort of challenges--such as Commonwealth 1). Gadd, 665 S. W. 2d 915
(Ky.1984), and Dunn v. Commonwealth, 703 S. W. 2d 874 (-Ky.1985). For the sake of ‘
clarity, then,' we do so now to the extent they conflict with our holding today.

6

McGuire and Webb’s saying it need not, the circuit court entertained Fugate’s
collateral Boyki'n challenge of his past convictions and rejected it on the merits
ln doing so, then, it reached the correct result for the wrong reason. The Court
of Appeals’~ reversal of that result was error. Because that error is reason
enough to reverse the Court of Appeals and reinstate the judgment of .A
conviction, we need not address the Commonwealth’s other argument that

_ relies on Conkli'n v. Commonwealth 799 S.W.2d 582 (Ky. 1990).7

B. Fugate’s belated “complete denial of counsel” claim does not require
suppression.

As explained above, the circuit court was right to reject Fugate’s
collateral Boykin challenge of his`district-court convictions albeit for a different
reason. That challenge is simply not available to him in this case.

Fugate tries to avoid that problem by urging this Court to find that he
was completely denied counsel-, which is again the one avenue for relief that
our cases have left open in these sorts of collateral attacks See, e.g., Webb` v.
Commonwealth 904 S.W.2d 226,229 (Ky. 1995). But in doing so, he‘runs into
another problem: he appears to have rnade this claim for the first time in his

briefing on appeal. _ ‘_

 

7 The Commonwealth also maintains that the Court of Appeals’ opinion flies in
the face of what this Court said in Conklin_to wit:

A defendant is not entitled to have a conviction suppressed simply
because the record is silent on Boykin matters when neither he nor
anyone else has testified under oath that the Boykin requirements were
not explained to him and that he did not understand his constitutional
rights before the entry of the 'plea.

799 S.W.2d at 584.

Although Fugate’s initial suppression motion alleged in an offhand
manner that he did not have counsel and did not understand his right to
counsel, he did so not as a separate substantive ground for relief but, rather,
only as one of the several circumstances that he argued entitled him to relief
under Boykin. His reply to the Commonwealth’s response to his suppression
motion dispels any doubt about the substance of his allegations In that 'reply,
he clarified that his ‘;two basic arguments . . . are (1) [he] never actually
enter[ed]' a plea of ‘guilty’ and (-2) there is absolutely no evidence that [he] made
a knowing and voluntary waiver of his [constitutional rights] . _. . because the n
recdrd is silent as to all of [them].” [In making his»case to the circuit court
during the suppression hearing, defense counsel mimicked these arguments
practically verbatim.) The oblique, unsworn allusions to not having counsel or
knowing about that right__tossed in'to help prop up his principal argument
~ about the record being silent on Boyki'n'matters_do not equate with claiming
squarely a complete denial of counsel.8 It appears instead, that he`only
advanced the claim as a post hoc response to the Commonwealth’s raising, as
another ground for affirming the trial court, Webb and McGuire’s foreclosure of
his collateral Boylti'n attack. l

Fugate only asked the trial court to find that his guilty pleas had not

been knowing and voluntary in violation of Boykin. He never argued to or

 

8 Not to mention that those allusions as even the Court of Appeals recognized,
were largely refuted by the district-court records which showed that the court asked
Fugate if he wanted counsel appointed, and Fugate turned it down.

8

asked the trial court to find that he was completely denied counsel. So it
comes as no surprise that court never made such a iinding, or even considered
the issue. Because Appellant failed to properly preserve his argument that he
was completely denied'counsel, we need not consider his claim any further.
CONC_LUSION
We reverse the Court of Appeals’ opinion and reinstate the Kenton
Circuit Court’s judgment of conviction.

All sitting. All concur.

coUNsEL FoR APPsLLANT;.

Andy Beshear _ 1
A_ttorney General of Kentucky

Micah Brandon Roberts
Assistant Attorney General

COUNSEL FOR APPELLEE:

Kathleen Kallaher Schmidt

Assistant_ Public Advocate

ii

.r,,.

" 'O§upreme Court rif Benfuckg

2015-SC-000597-_‘DG
COMMONWEALTH OF KENTUCKY _ _ .\ APPELLANT

' oN REviEw FRoM coURT oF APPEALS

.v. _ ` cAsE No. 2014-cA-001467-MR

KENTON CIRCU'IT COURT NO. 14-CR'-002 1 1
WILLIAM FUGATE - APPELLEE

ORDER DEN'YING PE'l‘-ITION FOR REHEARING AND
GRANTING MODIFICATION

 

This matter is before the Court on the Appellee’s petition to modify -the

Opinion of the Court by Justice Wright, rendered April 27, 2017 . The Court

having reviewed-the record and being otherwise fully and sufficiently advised,

_oRDERs: ` ’

.1) The Appellee’s petition to modify the Opinion of the Court rendered ‘
Apri127, 2017 is GR_ANTED; and

2) ' The opinion is MODIFIED on its face by substitution of the

attached opinion in lieu of the original opinion rendered'April 27, 2017. Said

modification occurs on pages 7-12 and does not affect the holding.
All sitting. All concur.

ENTERED: Aiigiisi` 24, 2017.

 

 

