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Ault v. Commonwealth4/1/2005
AFFIRMING
At 4:00 a.m. on the morning of August 10, 1996, Gary M. Ault, a drunk driver, drove his vehicle onto Interstate 64 in Louisville at the 9th Street exit and began traveling west in the eastbound lane. Because Ault was traveling on the wrong side of the highway, several vehicles had to swerve in order to avoid being hit by the Ault vehicle. Tragically, the Ault vehicle crashed head-on into a truck driven by Richard Melson, killing Melson instantly.
Ault acknowledged to emergency medical personnel that he had drunk eight or nine beers. A search warrant was obtained in order to retrieve blood and urine samples from Ault, and the test results revealed Ault's blood alcohol content to be .15g/100 ml and his urine alcohol content to be .22g/100 ml. As a result of the incident, Ault was indicted by a Jefferson Circuit Court grand jury for the offenses of murder, six counts of first-degree wanton endangerment, two counts of first-degree criminal mischief, operating a motor vehicle with a revoked or suspended driver's license, and DUI. He retained Hon. Fred Radolovich as his attorney.
On August 26, 1997, Ault and his attorney signed a plea agreement with the prosecutor whereby the murder charge would be amended to second-degree manslaughter and Ault would then plead guilty to all charges and would receive a total sentence of thirteen years in prison. Specifically, Ault agreed to the minimum sentence of ten years on the manslaughter charge, three years on each of the six wanton endangerment charges, three years on each of the criminal mischief charges, and six months on the suspended license charge. Pursuant to the agreement, the penalty for DUI would merge into the penalty for second-degree manslaughter. Further, the ten-year sentence on the manslaughter charge would run consecutively with the three-year sentence on one of the counts of wanton endangerment for a total sentence of thirteen years, and the sentences on all remaining counts would run concurrently with the thirteen-year sentence. The agreement also stated that the Commonwealth "adamantly objects to probation and shock probation." In addition to signing the plea agreement, Ault signed a Motion to Enter Guilty Plea and his attorney signed a Certificate of Counsel.
On October 6, 1997, the circuit court sentenced Ault to thirteen years in prison in accordance with the plea agreement. The court also denied probation. Thereafter, Ault moved the court to grant him shock probation. In an order entered on March 13, 1998, the court denied the motion.
Ault filed a motion to vacate or set aside his convictions and sentences pursuant to RCr 11.42. The motion was filed on December 29, 2000. The motion was based primarily on Ault's claim of ineffective assistance of counsel by Radolovich.
In an order entered on April 5, 2001, the court denied the motion as being untimely. Ault filed an appeal with this court, and, in an opinion that became final on October 25, 2002, this court vacated and remanded the case to the circuit court to address Ault's contention that the Commonwealth had agreed to waive any objection to the timeliness of his motion.
On January 27, 2003, the circuit court entered an order finding that the Commonwealth had agreed that Ault's RCr 11.42 motion be heard although it may have been untimely. The court thereafter conducted an evidentiary hearing, and the parties submitted memoranda to support their arguments. In an order entered on November 4, 2003, the court denied Ault's motion. In a four-page opinion and order, the court ultimately concluded that it was "not convinced that, but for Mr. Radolovich's alleged errors, Mr. Ault would have insisted on tak
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