CRIMINAL – KRS 189A.010(5)(d) & .120(1), Amending Down DUI Charges: Allen David Jones v. Commonwealth (SC 3/19/2009)

Allen David Jones v. Commonwealth
2006-SC-000802-DG March 19, 2009
Opinion by Chief Justice Minton; Justice Schroder not sitting.

Jones was indicted on charges of fourth offense DUI, third offense operating a vehicle on a DUI-suspended license and being a persistent felony offender in the first degree. The trial court allowed the Commonwealth to amend the fourth offense DUI charge to second offense DUI and the third offense operating on a DUI suspended license to a second offense. The prosecution did this in order to save the PFO-I charge by applying one of Jones’ prior DUI convictions as the qualifier for the PFO-I charge. Jones entered a conditional guilty plea. On appeal, he argued that KRS 189A.010(5)(d) and 189A.120(1) prohibit the Commonwealth from amending down the fourth offense DUI charge. The Court of Appeal affirmed the trial court, concluding that 189.120(1) only prevented the Commonwealth from “agreeing” to a defendant’s motion to amend the charges. The Court of Appeals further held that the Commonwealth is free to make its own motion to amend.

The Supreme Court reversed, holding that while the General Assembly may have intended only to prohibit the Commonwealth from acceding to reductions that would lessen a defendant’s ultimate sentence, the Court was bound to construe statutes as they are written. The Supreme Court also took exception to the Court of Appeal’s “impermissibly narrow construction” of the word “agree” as it is used in 189A.120(1), asking rhetorically how it could be said that the Commonwealth did not “agree” to amending the charges when the Commonwealth itself sought the amendments. Justice Cunningham dissented on the grounds that under Hoskins v. Maricle, an independent motion by a prosecutor must be sustained unless it is clearly contrary to manifest public interest. Further, he noted that 189A.120 does not expressly prohibit the Commonwealth from exercising independent discretion and seeking a more severe penalty.

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