STEVEN JOHNSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 5, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000458-MR
STEVEN JOHNSON
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JAMES R. DANIELS, JUDGE
ACTION NO. 94-CR-00423
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
BUCKINGHAM, MCANULTY, and TACKETT, Judges.
BUCKINGHAM, JUDGE.
Steven Johnson appeals from an order of the
Warren Circuit Court denying his RCr1 11.42 motion to vacate or
set aside his conviction and life sentence.
Johnson claims that
he was entitled to RCr 11.42 relief because all circuit court
proceedings were void due to an invalid transfer of his case from
the district court to the circuit court.
Because the trial court
properly denied Johnson relief, we affirm.
Two car jacking incidents in McCracken County in
January 1995 resulted in an indictment against Johnson and four
other individuals.
1
The charges against Johnson were initially
Kentucky Rules of Criminal Procedure
brought in the juvenile division of the McCracken District Court
because Johnson was sixteen years old when the offenses were
committed.
A public defender attorney was appointed to represent
Johnson, and two detention hearings and a transfer hearing2 were
held.
Johnson’s case was transferred by the McCracken District
Court to the McCracken Circuit Court, and he was indicted as an
adult and charged with the following offenses:
complicity to
commit murder, complicity to first-degree robbery, complicity to
kidnapping, complicity to theft by unlawful taking or disposition
of property over $300, two counts of attempted murder, two counts
of attempted kidnapping, first-degree robbery, and attempted
theft by unlawful taking or disposition of property over $300.
After a change of venue to the Warren Circuit Court,
Johnson entered into a plea agreement with the Commonwealth and
pled guilty to all charges except those related to theft.
On
January 13, 1995, a final judgment was entered sentencing Johnson
to two life sentences for complicity to murder and complicity to
kidnapping; twenty-year sentences for complicity to first-degree
robbery, two counts of attempted murder, first-degree robbery,
and attempted kidnapping; and a ten-year sentence for another
count of attempted kidnapping.
After Johnson turned eighteen
years of age, he was returned to the circuit court in July 1995
and was sentenced as an adult and remanded to the custody of the
Department of Corrections.
The final judgment was entered on
2
The procedure for transferring the case of a youthful
offender from the district court to the circuit court is set
forth in Kentucky Revised Statute (KRS) 640.010.
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July 26, 1995, and the sentences were ordered to run
concurrently.
On July 27, 1998, Johnson filed a motion to vacate or
set aside his convictions pursuant to RCr 11.42.
On August 24,
1998, the trial court entered an order appointing a public
defender attorney to represent Johnson and giving counsel until
October 23, 1998, to file a memorandum in support of Johnson’s
motion.
On November 2, 1998, the trial court entered an order
giving counsel an additional thirty days “in which to file a
supplement.”
On November 23, 1998, a supplemental RCr 11.42
motion was filed by Johnson’s counsel.
On January 29, 1999, the
trial court entered an order denying Johnson’s motion without an
evidentiary hearing.
This appeal followed.
Johnson argues in this appeal that the circuit court
lacked jurisdiction in his case and that his convictions were
void because the transfer order from the McCracken District Court
was invalid due to the denial of his right to conflict-free
counsel.
However, before he pled guilty in 1995, Johnson raised
this same defense by written motion to dismiss the indictment due
to the alleged conflict of interest on the part of the attorneys
from the McCracken County public defender’s office who had
represented him in the district court proceedings.
Although it
appears that the trial court never ruled on this motion, Johnson
subsequently entered guilty pleas to the charges.
He is thus
barred from now raising the defense because a guilty plea waives
all defenses other than that the indictment charges no offense.
Centers v. Commonwealth, Ky. App., 799 S.W.2d 51, 55 (1990).
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The facts in the case sub judice are similar to those
in Holt v. Commonwealth, Ky., 525 S.W.2d 660 (1975).
Holt was a
juvenile whose case was transferred to the circuit court so that
he could be tried as an adult on charges of willful murder and
armed robbery.
Holt sought to challenge the transfer order by
seeking to quash the indictment in the circuit court.
When his
requests for relief were denied, he pled guilty in the circuit
court to charges of voluntary manslaughter and armed robbery.
Holt later sought post-conviction relief under RCr 11.42 on the
same ground.
The Holt court upheld the trial court’s denial of
Holt’s RCr 11.42 motion and held that he had already litigated
the alleged error and could not then be heard again by way of an
RCr 11.42 motion.
Id. at 661.
Similarly, in Schooley v. Commonwealth, Ky. App., 556
S.W.2d 912 (1977), the appellant sought to use RCr 11.42 to
vacate sentences he had received in circuit court for crimes he
had committed when he was a juvenile.
Schooley argued in his
motion that there was no valid transfer order and that the
circuit court never acquired jurisdiction over the charges
against him.
The Schooley court affirmed the trial court’s
denial of Schooley’s motion, holding that he had an opportunity
to challenge the validity of the transfer order by direct appeal
or by his earlier RCr 11.42 motion.
Id. at 918.
More
importantly, in rejecting Schooley’s argument that the circuit
court lacked jurisdiction, the court held that “[w]hen the trial
court has general subject matter jurisdiction, an erroneous
finding of the existence of a jurisdictional fact necessary to
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the court’s jurisdiction in the particular case does not
necessarily render the judgment subject to collateral attack.”
Id. at 917.
The court also held that the issue of jurisdiction
could be raised at any time if a transfer order was invalid on
its face, but that there could be a waiver under certain
circumstances by failure to appeal if the issue was considered as
a question of due process.
Id. at 916-17.
The case of Commonwealth v. Ivey, Ky., 599 S.W.2d 456
(1980), is also similar to the case sub judice.
Ivey moved the
court pursuant to RCr 11.42 to vacate his conviction on the
grounds that he was improperly transferred from the juvenile
court to the circuit court and that the circuit court was without
jurisdiction to try him because the prosecution was in violation
of the Interstate Agreement on Detainers.
The court noted that
Ivey had presented the transfer issue to the trial court in a
motion to dismiss prior to his trial.
Citing Holt, supra, the
court held that Ivey could not raise the issue because he had
litigated it previously.
Id. at 458.
We hold that Johnson may not now be heard on the issue
of the validity of the transfer order because he raised the issue
prior to his guilty pleas.
The Commonwealth has argued that the
trial court’s order should be affirmed for several other reasons,
including that both the motion and supplement were filed outside
the three-year time limit set forth in RCr 11.42(10), that the
supplemental motion wherein this argument was raised was not
verified as required by RCr 11.42(2) and Bowling v. Commonwealth,
Ky., 981 S.W.2d 545, 548 (1998), that Johnson’s counsel in the
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district court did not have a sufficient conflict so as to merit
disqualification, and that Johnson has failed to show how he has
been prejudiced by the district court proceedings.
While some of
these arguments may have merit, we decline to address them
because the trial court’s order should clearly be affirmed for
other reasons stated herein.
The order of the Warren Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Marguerite Neill Thomas
Assistant Public Advocate
Frankfort, KY
Albert B. Chandler III
Attorney General
Kent T. Young
Assistant Attorney General
Frankfort, KY
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