Opinion
NO. 2012-CA-000485-MR
07-05-2013
PAUL DWAYNE YORK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Paul Dwayne York, Pro se Saint Mary, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND II, JUDGE
ACTION NO. 05-CR-00562
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO, AND VANMETER, JUDGES. VANMETER, JUDGE: Paul York appeals pro se from the December 1, 2010, order of the Boone Circuit Court which denied his CR 60.02 motion to vacate his judgment and sentence of conviction. For the following reasons, we affirm.
Kentucky Rules of Civil Procedure.
York was indicted on charges of first-degree robbery and second-degree persistent felony offender ("PFO"). Pursuant to a plea agreement with the Commonwealth, York pled guilty to an amended charge of second-degree burglary, was sentenced to ten years' imprisonment, and the PFO charge was dismissed. Thereafter, York filed a pro se motion to vacate his conviction and sentence under RCr 11.42, claiming his trial counsel rendered ineffective assistance by advising him to plead guilty when the indictment had not been properly amended to charge him with second-degree burglary prior to entry of his guilty plea. The trial court denied his motion without an evidentiary hearing and this court affirmed on appeal.
Kentucky Rules of Criminal Procedure.
York v. Commonwealth, No. 2008-CA-002097-MR (Ky. App. March 16, 2010).
--------
York then filed the underlying CR 60.02 motion, alleging that improper amendment of the indictment rendered it void and divested the trial court of subject matter jurisdiction to enter a judgment on his plea of guilty to the amended charge. The trial court denied his motion and this appeal followed.
We review a trial court's denial of a CR 60.02 motion for an abuse of discretion. Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998) (citations omitted). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
The trial court held York's CR 60.02 motion was procedurally barred because York was required to raise the issue of subject matter jurisdiction in the RCr 11.42 motion and failed to do so. The trial court held that York was not permitted to relitigate issues that should have been raised under RCr 11.42. Procedurally,
[t]he structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02. CR 60.02 . . . is for relief that is not available by direct appeal and not available under RCr 11.42. The movant must demonstrate why he is entitled to this special, extraordinary relief. Before the movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
On appeal, the Commonwealth urges us to dismiss York's appeal as procedurally deficient. We decline to do so.
York's argument regarding subject matter jurisdiction is reviewable because subject matter jurisdiction is not subject to waiver. Privett v. Clendenin, 52 S.W.3d 530, 532 (Ky. 2001) (citations omitted). It follows that "subject-matter jurisdiction may be raised for the first time on appeal." Id. (citation omitted). Kentucky law distinguishes between erroneous and void judgments in that "the former may be attacked only directly . . . and the latter collaterally only where the fact which rendered them void, namely, the lack of jurisdiction in the Court to render them, appears on the face of the record." Commonwealth ex rel. Dummit v. Jefferson County, 300 Ky. 514, 517-18, 189 S.W.2d 604, 606 (1945) (citation omitted).
[A] judgment is not void if the court rendering it had jurisdiction of the subject-matter and of the person of the defendant against whom it was rendered. If those two facts appear, the judgment rendered will not be void so as to subject it to collateral attack as being void, howsoever erroneous it may be.Commonwealth v. Miniard, 266 Ky. 405, 407, 99 S.W.2d 166, 167 (1936). Thus, York's CR 60.02 motion is reviewable.
That being said, the CR 60.02 motion fails on its merits. First, "defects in an indictment do not deprive a court of its power to adjudicate a case." Unites States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002). Second, a defendant may waive his right to reindictment by a grand jury by entering a guilty plea to an amended indictment. Short v. United States, 471 F.3d 686, 695 (6th Cir. 2006). With respect to whether York's plea colloquy effected a valid waiver of his right to reindictment, we note that a waiver can be implied by a defendant's guilty-plea colloquy in open court. See id. (citation omitted); RCr 6.02(1) ("[a]ll offenses required to be prosecuted by indictment pursuant to Section 12 of the Kentucky Constitution shall be prosecuted by indictment unless the defendant waives indictment by notice in writing to the circuit court, in which event the offense may be prosecuted forthwith by information").
The record reflects that the amendment of the charge from first-degree robbery to second-degree burglary was discussed in open court with York during the plea colloquy. The trial court asked York how he pled to the amended charge of second-degree burglary, to which York responded guilty. The court confirmed that York signed the guilty plea knowingly and voluntarily and emphasized that in accordance with the Commonwealth's recommendation, the PFO charge would be dismissed and York would be sentenced to ten years for burglary in the second degree. The court's failure to expressly inform York of his right to reindictment was a technicality which, in the present circumstances, did not result in any prejudice to York. See Short, 471 F.3d at 696.
Further, the Commonwealth's offer on a plea of guilty reflects the agreement approved by the court and states that under the facts of this case, York did unlawfully enter or remain in the dwelling of another with the intent to commit a crime therein, so as to support the amended charge of second-degree burglary. See KRS 511.030; RCr 6.16 ("[t]he court may permit an indictment, information, complaint or citation to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced[])." Accordingly, York's guilty plea waived the right to reindictment on the amended charge and the court retained subject matter jurisdiction to enter a judgment in accordance with the plea agreement.
The order of the Boone Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Paul Dwayne York, Pro se
Saint Mary, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky