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Hodge v. Commonwealth6/10/2005
oning that prior KRS 189A.090 convictions could be inferred from the fact that Hodge had prior DUI convictions. We disagree.
Counsel, of course, has a duty to conduct a reasonable investigation into the facts and the law bearing on her client's case. We agree with Hodge that a reasonable investigation in this case would have revealed that proof of Hodge's prior convictions was apparently lacking and that thus the felony charge was apt to be invalid. It would also have revealed that the Commonwealth was proposing a sentence for Hodge's DUI offense that was twice the legal maximum. Counsel erred, therefore, by failing to discover these irregularities and by advising Hodge to plead guilty before they had been addressed.
Whether the errors were prejudicial depends on whether the felony charge in fact lacked an evidentiary basis, and this we cannot determine from the record before us. Hodge is thus entitled to a hearing at which he may challenge the factual basis for the felony charge. We note that the Supreme Court has held that when an element of an offense or a status is a prior conviction, "the 'best evidence' of that conviction is a certified copy of the prior judgment." We thus disagree with the Commonwealth's suggestion that Hodge's alleged prior convictions under KRS 189A.090 could be proved circumstantially by proof of prior DUI convictions. If on remand the Commonwealth can not prove Hodge's alleged prior convictions with copies of the judgments, then counsel's error in permitting Hodge to plead guilty to a felony for which there was no factual basis must be deemed prejudicial. Hodge's April 2001, conviction, in that case, should be vacated and Hodge should be allowed to withdraw his plea. Accordingly, we vacate the May 20, 2004, order of the Hickman Circuit Court and remand for additional proceedings consistent with this opinion.
ALL CONCUR.
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