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Newcomb v. Commonwealth3/6/1998
TO BE PUBLISHED
AFFIRMING
Michael Newcomb (Newcomb) appeals from a judgment of the Fayette Circuit Court finding him guilty of the offenses of operating a motor vehicle (OMV) while license is revoked or suspended for driving under the influence (DUI)--third offense, giving an officer a false name, and being a first-degree persistent felony offender (PFO). Finding no error, we affirm.
In January 1996, Newcomb was arrested and charged with OMV while license is revoked or suspended for DUI. See Kentucky Revised Statute (KRS) 189A.090. Newcomb had previous convictions for that offense in 1991, 1992, and 1994. As his 1994 conviction was his third offense, it resulted in his conviction of a Class D felony at that time. KRS 189A.090(2)(c). Newcomb also had been convicted of a felony offense in 1974.
The 1996 indictment by the grand jury charged Newcomb with OMV while license is revoked or suspended--third offense, based on his 1991 and 1992 prior offenses. The indictment also charged Newcomb with first-degree PFO based on the 1974 felony and the 1994 felony OMV conviction. The trial court denied Newcomb's motion to dismiss the PFO charge, and the jury convicted him of OMV while license is suspended or revoked--third offense, giving an officer a false name, and first-degree PFO. Newcomb was sentenced to one year on the OMV charge which was enhanced to ten years by the PFO charge. The trial court probated the ten-year sentence based on the circumstances surrounding the OMV offense, and this appeal by Newcomb followed. Newcomb's first allegation of error is that the PFO charge should have been dismissed on the basis of double enhancement, since the same prior charges (the 1991 and 1992 misdemeanor OMV convictions) which were used to make the OMV charge herein a felony had also been used in 1994 to enhance that OMV charge to a felony which led to its use as a prior felony to support the PFO charge herein. In support of his argument, Newcomb relies on Heady v. Commonwealth, Ky., 597 S.W.2d 613 (1980), as interpreted by Corman v. Commonwealth, Ky. App., 908 S.W.2d 122 (1995).
In Heady, the defendant was charged with carrying a concealed weapon which is ordinarily a misdemeanor. However, Heady had previously been convicted of an armed robbery involving a deadly weapon. That conviction upgraded his misdemeanor carrying a concealed weapon offense to a felony, and his sentence was set at four years of imprisonment. His punishment was then enhanced to twenty years, as he was declared to be a first-degree PFO. The court held that prosecution as a PFO was impermissible since the misdemeanor charge could not be enhanced to a felony and then used again to "trigger" further enhanced punishment. Id. at 613.
In Corman, supra, the defendant was convicted of DUI-- fourth offense, and for being a second-degree PFO. The defendant's prior felony conviction was for OMV while license is revoked or suspended for DUI--third offense. Corman maintained that the prior DUI offenses which caused him to be indicted for the felony of DUI--fourth offense had been previously used to prove the felony of third-offense OMV while license is revoked or suspended for DUI, the prior felony on which the PFO charge was based. Finding that the prior DUI convictions are separate convictions from the OMV conviction, this court held that there was not double enhancement and that Corman's case was distinguishable from Heady.
In order to properly analyze the issue herein, reference to several other cases is appropriate. In Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980), the defendant's prior felony assault conviction resulted in his being charged with possession of a handgun
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