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Commonwealth v. Parson6/17/2004
hus, if that conviction cannot be used for PFO enhancement of his present DUI 4th and OSL/DUI 3rd convictions, the enhanced sentences for those convictions must be vacated .
We agree that at least some of the same prior convictions used to enhance the offenses underlying the March 14, 1998, convictions to Class D felonies were also used to enhance to Class D felonies the DUI and DUI/OSL offenses of which Appellant was convicted in this case. However, the 1998 DUI 4th conviction was only one offense, not four offenses consisting of that offense plus the three prior offenses used to prove that the offense was a Class D felony. Likewise, the 1998 DUI/OSL 3rd conviction was for only one offense, not three offenses ; Appellant's present conviction of DUI 4th is for only one offense, not four; and his present conviction of OSL/DUI 3rd is for only one offense, not three . The only prior DUI and DUI/OSL convictions used to obtain PFO enhancement of Appellant's present convictions were the March 24, 1998, felony convictions. Since those convictions were not used to enhance Appellant's present DUI and DUI/OSL convictions to Class D felonies, they were properly used for PFO enhancement under KRS 532 .080(6)(b). Corman v. Commonwealth , Ky. App ., 908 S .W .2d 122, 124 (1995) (prior conviction of OSL/DUl 3rd could be used for PFO enhancement of present conviction of DUI 4th even though a prior DUI conviction that was a predicate for the OSL/DUl 3rd conviction was also used to prove that the present conviction was Appellant's fourth DUI conviction) . See also Commonwealth v. Grimes, Ky., 698 S .W.2d 836, 837 (1985) (penalty for second offense controlled substance conviction could be further enhanced under PFO statute where the prior offense used for PFO enhancement was not the same prior offense used to prove that the underlying controlled substance offense was a second offense); Eary v. Commonwealth , Ky., 659 S.W .2d 198, 200 (1983) (penalty for conviction of possession of a handgun by a convicted felon, KRS 527 .040, could be further enhanced under PFO statute where prior felony conviction used to prove the convicted felon element of the underlying offense was a different conviction from those used for PFO enhancement).
Accordingly, the judgment of convictions and sentences imposed by the Jefferson Circuit Court are affirmed .
Lambert, C .J . ; Graves, Johnstone, and Wintersheimer, JJ., concur. Keller, J ., concurs in part and dissents in part by separate opinion, with Stumbo, J ., joining that opinion .
OPINION BY JUSTICE KELLER Concurring in part and dissenting in part:
I simply cannot decide what I find most troubling about Part IV (Witness Deposition) of the majority opinion . I have, however, prepared a "short list." First, despite the fact that the Commonwealth has never - either in the trial court or in its brief to this Court - uttered or written the word "waiver" as a justification for its introduction at trial of the videotaped deposition of licensed physical therapist Timothy Nichol, the linchpin of the majority's basis for affirming Appellant's Second-Degree Assault conviction is the majority's factual determination that Appellant's federal and state constitutional rights of confrontation were waived by his trial counsel's agreement to depose Nichol. Second, the majority opinion's finding that the Appellant acquiesced in the waiver is unreasonable because the wording of the multiple part question asked by the trial court and the Appellant's answer do not support the majority opinion's conclusion that Appellant acquiesced in the waiver of his right to confront Nichol, particularly so because "'courts indulge every reasonable presumption against waiver' of
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