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NO. 96-CA-1219-MR TRACY GEE v. APPEAL FROM McCRACKEN CIRCUIT COURT HONORABLE JAMES R. DANIELS, JUDGE CRIMINAL ACTION NO. 95-CR-000371 APPELLEE OPINION AFFIRMING * * * * * BEFORE: BUCKINGHAM, GUIDUGLI and MILLER, Judges. Tracy Lee Gee (Gee) appeals from an order of APPELLANT

COMMONWEALTH OF KENTUCKY

GUIDUGLI, JUDGE.

the McCracken Circuit Court entered April 22, 1996, following a jury trial, finding him guilty of driving under the influence (fourth offense), operating a motor vehicle while his license was suspended for DUI, and driving without insurance. We affirm.

On December 6, 1995, the McCracken County Grand Jury returned an indictment against Gee charging him with operating a motor vehicle while under the influence (fourth offense), operating a motor vehicle while his license was suspended for DUI, and driving without insurance. guilty. Gee entered a plea of not

On March 4, 1996, Gee filed a motion in limine seeking to exclude from trial evidence of three prior DUI convictions from Ballard County, Kentucky. As grounds for his motion, Gee

alleged that he was not made aware of his rights and protections prior to entering a plea of guilty to those charges as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Gee attached an unofficial transcript of the proceedings

before the Ballard Circuit Court, which showed that although Gee was represented by counsel, the court did not advise Gee of the consequences of his guilty plea and resulting waiver of rights prior to accepting his plea. The Commonwealth filed its response

to Gee's motion on March 5, 1996, wherein it alleged that under McGuire v. Commonwealth, Ky., 885 S.W.2d 931 (1994), it was not required to affirmatively prove that Gee's constitutional rights were explained to him before proof of the three prior DUI's could be admitted. On March 6, 1996, the day of the trial, the trial court made the following ruling: The attorney for [Gee] has asked this court to prohibit the Commonwealth from using prior DUI convictions in Ballard County, alleging that they did not meet the requirement of Boykin versus Alabama. This court has reviewed the pleadings, the transcript of evidence from Ballard County, as well as the arguments of counsel and finds that, although it would appear on their face that there may have been some deficiencies in the taking of the pleas in Ballard County, that the case of McGuire versus Commonwealth, 885 S.W.2d 931 is controlling on this matter. The Court has assured counsel for the defendant that any attack on the convictions in Ballard County resulting in a favorable ruling on behalf of

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this client may be brought to the court's attention, if and when a conviction occurs in the instant case. The court has also ruled in a preliminary matter that the Commonwealth may introduce evidence of prior DUI conviction or convictions to show the necessary proof for prosecution of count 2 in this indictment, KRS 189A.090, operating a motor vehicle while license was suspended for D.U.I. The court cites its authority for that ruling on the case of Ratliff v. Commonwealth, 719 S.W.2d 445. During the guilt phase of the trial, Karl Hardin (Hardin), a hearing officer and records custodian for the Kentucky Transportation Cabinet, was called to testify by the Commonwealth. Prior to Hardin's testimony, counsel for Gee

objected to "any evidence of prior D.U.I.'s or prior Driving under Suspended DUI" and testimony regarding any records pertaining to out of state convictions. The trial court

overruled the objection, and held that Hardin could testify as to Gee's prior record to the extent necessary to prove that at the time he was arrested his license was under suspension for DUI. Hardin testified that on April 23, 1991, Gee's license was suspended for DUI and had not been reinstated. At that point,

the trial court admonished the jury that the evidence of the prior DUI could not be considered when deciding whether Gee was guilty of DUI on the present charge. The jury retired for

deliberations, and returned a verdict finding Gee guilty of all three counts of the indictment. The next phase of the trial was for the jury to decide, based upon Gee's DUI record, whether he was a felony or misdemeanor DUI offender. The trial court informed the jury that

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they could "accept as fact" that on February 15, 1991, Gee was convicted of three DUI charges in Ballard County, and that on April 18, 1991, Gee was convicted of DUI in McCracken County.1 The jury found that Gee was a felony DUI offender. Following the

punishment phase of the trial, the jury recommended a five year sentence. Final judgment in accordance with the jury's findings

was entered on April 22, 1996, and this appeal followed. Gee argues that the trial court erred by admitting testimony concerning the three prior Ballard County DUI convictions into evidence. In support of his position, Gee

relies on KRS 189A.310, which provides in pertinent part: (1) A court may, upon application of the defendant, and with notice to the Transportation Cabinet, which shall be a party, and if the facts of the case so indicate, order that a prior conviction cannot be used to enhance penalties or license suspensions or revocations, or for other purposes for which such a conviction might be used. Determinations pursuant to this section shall be made in strict conformity to the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), and the requirements of that case shall not be expanded upon unless later applicable case law so dictates.

(2)

KRS 189A.310(1) and (2). We need not reach the merits of Gee's argument as our review of the record does not indicate that the Transportation Cabinet was joined as a party as required by KRS 189A.310(1).

Apparently no objection was made to the introduction of the McCracken County charge.

1

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Use of the word "shall" indicates that the joining of the Transportation Cabinet as a party is mandatory for relief to be afforded under KRS 189A.310. While we do not address whether the

mailing of a copy of the motion in limine to the director of the Transportation Cabinet satisfies the notice requirement of the statute, we hold that simply mailing a copy of the notice does not result in the Transportation Cabinet becoming a party to the action. Thus, Gee's failure to comply with the mandatory

provisions of the statute precludes the relief sought on appeal. Gee further contends that the trial court erred by allowing the Commonwealth to prove that Gee had a prior DUI conviction during its case in chief. Gee contends that the

evidence was unduly prejudicial, and that the charge of driving under a license suspended for DUI should have been severed from the remaining counts and tried during a separate phase. Gee concedes that under KRS 189A.090 the Commonwealth must show that his license was suspended for DUI in order to prove the charges against him. Thus, his reliance on

Commonwealth v. Ramsey, Ky., 920 S.W.2d 526 (1996), for the proposition that he was entitled to bifurcation is misplaced. Ramsey, the Commonwealth argued that the prior DUI convictions were admissible during the case in chief because they were necessary to establish a fourth DUI as a felony. S.W.2d at 527. Ramsey, 920 In

The Court held that because KRS 189A.010(4) only

recognizes that a person who has a prior DUI has the status of a prior offender and thus can be punished as such, the prior DUI

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convictions are not necessary elements to determine guilt. at 528.

Id.

Here, the fact that Gee's license was suspended for a

prior DUI must be shown to merit a conviction under KRS 189A.090. The trial court properly admonished the jury that they could not use the evidence of prior DUI convictions as proof that he committed the DUI for which he was charged. However, it does

not appear that Gee requested any further relief after the admonition. Therefore, because Gee failed to request further

relief aside from the admonition of the trial court, he is "deemed to be satisfied with the relief given or, despite the error, desires to have the jury as empaneled render the verdict." Morton v. Commonwealth, Ky., 817 S.W.2d 218, 224 (1991). Thus,

he is not entitled to further relief at the appellate level. Having considered the parties' arguments on appeal, the order of the McCracken Circuit Court is affirmed. BUCKINGHAM, JUDGE, CONCURS. MILLER, JUDGE, DISSENTS.

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BRIEF AND ORAL ARGUMENT FOR APPELLANT: Roger Perry Benton, KY Russell J. Baldani Baldani, Rowland & Richardson Lexington, KY

BRIEF AND ORAL ARGUMENT FOR APPELLEE: A. B. Chandler, III Attorney General Perry T. Ryan Assistant Attorney General Frankfort, KY

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