Cook v. Commonwealth

KELLER, Justice,

Concurring.

I concur in the result reached by the majority opinion, but write separately as to Part II (Blood Alcohol Test Results). Although I agree with the majority opinion’s bottom-line Part II conclusion, i.e., that Deputy Stack’s wrongful refusal of Appellant’s request to contact an attorney before the administration of the blood test “was rendered harmless by the issuance of the warrant and did not require suppression of the blood test results[,]”11 emphatically disagree with the majority’s suggestion that Appellant’s claim for suppression of the blood test results “would be a better argument if he had actually consented to the blood tests and was claiming that the violation of the statute negated his consent.” 2 Of course, the majority’s commentary regarding a hypothetical factual situation wholly distinct from the one actually presented in the case at bar is nothing more than obiter dictum. My primary concern, however, is that the obiter dictum in question is also inaccurate. This theoretical “better argument” for suppression of alcohol concentration results — which, as I understand it, would be premised upon a claim that the suspect’s decision to submit to testing was involuntary because of a denial of KRS 189A.105(3)’s statutory right to counsel — would be no “better” than, and, in fact, would be just as deficient as, Appellant’s own argument.

Just two years ago, in Commonwealth v. Hemandez-Gonzalez,3 this Court shut the door on this allegedly “better argument” when we recognized that a DUI suspect has already impliedly consented to “one (1) or more tests of his blood, breath, and urine, or combination thereof’4 simply by operating a vehicle within Kentucky “if an officer has reasonable grounds to believe that a violation of KRS 189A.010(1) or 189.520(1) has occurred.”5 This Court observed in Hemandez-Gonzalez that “[t]he 2000 amendment of [KRS 189A.103(1) ] to read ‘has given his consent’ makes it unmistakable that a suspected drunk driver must submit to a test to determine blood alcohol concentration.”6 We thus held that inaccuracies in the “pre-testing warnings” established in the same Act that created KRS 189A.105(3)’s right to counsel could not render a DUI suspect’s submission to testing involuntary because, “as consent is implied by law, one cannot claim coercion in consenting to a test.”7 Accordingly, the implicit premise upon which the majority opinion’s supposed “better argument” rests, ie., that a separate “volun-tariness” inquiry is appropriate when a DUI defendant raises questions regarding the process leading up to his or her decision to roll up his or her sleeve, is a myth that was debunked in Hemandez-Gonza-lez. And, the assertion that a police officer’s conduct can somehow negate a DUI suspect’s decision to submit to testing simply misses the point of implied consent. In my view, therefore, today’s majority opinion does the Bench and Bar a disser-*366not counted noses), the word “conviction” is not limited to a final judgment.

Commonwealth v. Reynolds, Ky., 365 S.W.2d 853, 854 (1963) (holding that for purposes of impeachment by evidence of conviction of a felony under CR 43.07, it is immaterial that no sentence was ever pronounced). See also Thomas v. Commonwealth, Ky., 95 S.W.3d 828, 829 (2003) (defendant was a convicted felon for purposes of KRS 527.040 where he had been convicted but not yet sentenced for prior offense). Of course, it is also well settled that the Commonwealth cannot introduce evidence of charges that have been dismissed or set aside. Robinson v. Commonwealth, Ky., 926 S.W.2d 853, 854 (1996); Scrivener v. Commonwealth, Ky., 539 S.W.2d 291, 293 (1976); Dial v. Commonwealth, 142 Ky. 32, 133 S.W. 976, 977 (1911) (“When, therefore, the judgment of conviction has been set aside by the court rendering it, when it had jurisdiction to do so, the verdict stands as if judgment had not been rendered.”).

The trial judge held that Judge Johnson did not have jurisdiction to dismiss the indictment in 1974 because the trial court lost jurisdiction over the convictions ten days after entry of Judge Jones’s order of February 3, 1972. We disagree. The ten day period within which to file a motion to alter, amend or vacate runs from the date of the entry of the final judgment. CR 59.05; Commonwealth v. Gross, Ky., 936 S.W.2d 85, 87 (1996); Silverburg v. Commonwealth, Ky., 587 S.W.2d 241, 244 (1979). Criminal Rule 11.04(1) provides now, as it did in 1972, that “[a] judgment of conviction shall set forth the plea, the verdict or findings, the adjudication and sentence_’’(Emphasis added.) Until a final judgment was entered, the Wdiitley Circuit Court retained jurisdiction to alter, amend or vacate Appellant’s convictions. Thus, Judge Johnson had jurisdiction to effectively vacate the convictions by entering the 1974 order sustaining the Commonwealth’s motion to dismiss the indictment.

Even if Appellant’s 1972 convictions had not been previously vacated, they still would have been inadmissible at Appellant’s trial of his 2001 offense. Since the 1972 convictions were never finalized by entry of a judgment, the time for appealing the convictions had not expired.

It is the holding of this court that a prior conviction may not be utilized under KRS 532.055 ... unless:
(1) The time for appealing the conviction has expired without appeal having been taken, or
(2) Matter of right appeal has been taken pursuant to § 115 of the Constitution of Kentucky and the judgment of conviction has been affirmed.

Melson v. Commonwealth, Ky., 772 S.W.2d 631, 633 (1989).

The Commonwealth asserts that the error was waived when defense counsel agreed to stipulate to the prior offenses in lieu of an introduction of official documents pertaining to the 1971 indictment. We disagree. Appellant preserved his objection by a motion in limine that was overruled by a verbal order of the trial court during the course of the trial. KRE 103(d). Defense counsel never withdrew the objection but only agreed to the stipulation as a method of presenting the evidence to the jury.

Accordingly, Appellant’s conviction of murder is affirmed; however, the sentence imposed for that conviction is vacated and this case is remanded to the Wdiitley Circuit Court for a new sentencing phase of the trial in accordance with the contents of this opinion. *367vice with its obiter dictum that ignores this Court’s prior precedent and invites litigants to argue a theory that this Court has already rejected.

Graves, J., joins this concurring opinion.

. Cook v. Commonwealth, Ky., 129 S.W.3d 351, 359 (2004).

. Id. at 358.

.Ky., 72 S.W.3d 914 (2002).

. KRS 189A.103(1).

. Id.

. Hernandez-Gonzalez, 72 S.W.3d at 915.

. Id. at 916.