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Abney v. Commonwealth5/9/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Tony Dale Abney appeals from a judgment of the Montgomery Circuit Court convicting him of operating a motor vehicle on a suspended license, third offense, and sentencing him to three years in prison, enhanced to five years for being a persistent felony offender in the second degree. We affirm.
On April 17, 1998, while on patrol just after midnight, Deputy David Adams of the Montgomery County Sheriff's Department (formerly of the Mt. Sterling Police Department) noticed a vehicle driven by Appellant when it hit the curb exiting a parking lot. Deputy Adams then observed the car weaving in the road, crossing the yellow line two or three times, at which point he pulled Appellant over. Deputy Adams asked Appellant for his license, and Appellant responded he did not have a license. Deputy Adams ran Appellant's name through dispatch and confirmed that Appellant's license was suspended until August of 2000 for a 1995 conviction for driving under the influence .
On July 2, 2001, a jury found Appellant guilty of operating a motor vehicle while his license was revoked or suspended for driving under the influence . Then, during the second phase of the trial, the trial court permitted the Commonwealth to introduce Appellant's two prior convictions for operating a motor vehicle while his license was suspended for driving under the influence, one from 1991 and the other from 1993. Subsequently, the jury found Appellant to be a third offender. Appellant and the Commonwealth reached an agreement as to sentencing, and the trial court sentenced Appellant to three years for the underlying offense, enhanced to five years by his persistent felony offender status.
The only argument Appellant presents on appeal is that the trial court erred in not allowing Appellant to benefit from the 2000 amendment to KRS 189A.090 which imposes a time limit of five years for considering prior offenses to enhance the penalty. In support of this argument, Appellant cites KRS 446.110, which states in part, " f any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect."
The trial court applied the 1991 version of KRS 189A.090, and there was no time limit for the consideration of prior offenses under this version. Specifically, under the 1991 version of KRS 189A.090, in pertinent part, the statute was as follows:
(1) No person shall operate a motor vehicle while his license is revoked or suspended for violation of KRS 189A.010, nor shall any person who has no motor vehicle or motorcycle operator's license operate a motor vehicle while his privilege to operate a motor vehicle has been revoked or suspended for a violation of KRS 189A.010.
(2) Any person who violates subsection (1) of this section shall: ...
c. For a third or subsequent offense, be guilty of a Class D felony.
In 2000, the legislature amended the statute as follows:
(1) No person shall operate or be in physical control of a motor vehicle while his license is revoked or suspended under KRS 189A.010(6), 189A.070, 189A.107, 189A.200, or 189A.220, or operate or be in physical control of a motor vehicle without a functioning ignition interlock device in violation of KRS 189A.345(1).
(2) In addition to any other penalty imposed by the court, any person who violates subsection (1) of this section shall: ...
(c) For a third or subsequent offense within a five (5) year period, be guilty of a Class D felony and have his license revoked by th
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