DALE SCHINDEWOLF v. COMMONWEALTH OF KENTUCKY
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RENDERED:
FEBRUARY 10, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001343-MR
DALE SCHINDEWOLF
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NOS. 01-CR-00099 AND 02-CR-00250
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Dale Schindewolf, pro se, has appealed from an
order of the Hardin Circuit Court entered on June 25, 2004,
which denied his motion for relief pursuant to RCr1 11.42.
Having concluded that Schindewolf’s arguments are without merit,
we affirm.
1
Kentucky Rules of Criminal Procedure.
On February 28, 2001, a Hardin County grand jury
indicted2 Schindewolf for theft by deception under $300.00,3 and
theft by deception over $300.00.4
2001.
He was arraigned on May 22,
On May 31, 2002, Schindewolf was indicted5 by a Hardin
County grand jury on 53 counts of criminal possession of a
forged instrument in the second degree,6 four counts of theft by
deception under $300.00, one count of theft of mail matter,7 and
one count of possession of stolen mail.8
He was arraigned on
June 25, 2002.
On August 14, 2002, Schindewolf filed a motion in Case
No. 02-CR-00250 requesting the trial court refer him to the drug
court program and the trial court entered an order sustaining
the motion on November 22, 2002.
He filed a similar motion in
Case No. 01-CR-00099 on November 6, 2002.
On November 13, 2002,
and December 18, 2002, the trial court entered orders allowing
Schindewolf to apply for participation in the drug court
2
Case No. 01-CR-00099.
3
Kentucky Revised Statutes (KRS) 514.040, Class A misdemeanor.
4
KRS 514.040, Class D felony.
5
Case No. 02-CR-00250.
6
KRS 516.060.
7
KRS 514.140.
8
KRS 514.050, Class D felony.
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program.9
On December 18, 2002, pursuant to an offer by the
Commonwealth, Schindewolf pled guilty in Case No. 01-CR-00099 to
complicity to commit theft by deception under $300.00 and
complicity to commit theft by deception over $300.00.
In Case
No. 02-CR-00250, Schindewolf pled guilty to all the charges as
set forth in the indictment.
Based upon his agreement with the
Commonwealth, if Schindewolf pled guilty in both cases, if he
got accepted into and completed the drug court program, and if
he attended all court appearances, he would be sentenced to
three years in Case No. 01-CR-00099,10 and 12 years in Case No.
02-CR-00250.11
The sentence in Case No. 02-CR-00250 would be
probated for ten years conditioned upon Schindewolf successfully
completing the drug court program.
He would also be required to
pay full restitution over the ten-year period.
both cases were to run consecutively.
The sentences in
If Schindewolf did not
9
The November 13, 2002, order was entered in Case No. 01-CR-00099 only and
the December 18, 2002, was entered in both Case No. 01-CR-00099 and Case No.
02-CR-00250.
10
The sentence in Case No. 01-CR-00099 was broken down into 12 months on the
conviction for complicity to commit theft under $300.00, and three years on
the conviction for complicity to commit theft over $300.00, to run
concurrently for a total of three years.
11
The sentence in Case No. 02-CR-00250 was broken down as follows: five years
for counts one through 25 of criminal possession of a forged instrument in
the second degree, to run concurrently one with another; five years on counts
26 through 53 of criminal possession of a forged instrument in the second
degree, to run concurrently one with another; two years for theft of mail
matter and two years for possession of stolen mail matter, to run
concurrently one with the other; and 12 months on each of the four counts of
theft by deception under $300.00. Each group of charges were to run
consecutively, one with the other for a total of 12 years.
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successfully complete the drug court program, the three-year
sentence under Case No. 01-CR-00099 would run consecutively to
Case No. 02-CR-00250, for a total of 15 years to serve.
On August 7, 2003, the trial court entered an order
noting that Schindewolf had been terminated from the Hardin
County drug court program, and set both of his cases for
sentencing.
On September 23, 2003,12 Schindewolf was sentenced
to 15 years to serve, with credit for 273 days of time served.
Schindewolf filed a motion for shock probation on February 20,
2004, which was denied by the trial court on February 23, 2004.
On April 14, 2004, Schindewolf filed a motion to
vacate sentence pursuant to RCr 11.42 and requested an
evidentiary hearing.
He raised one issue in his motion claiming
that his trial counsel was ineffective for allowing a delay of
eight months in sentencing because RCr 11.02 requires that a
sentence be imposed “without reasonable delay,” even though the
delay was to allow Schindewolf to participate in the drug court
program and receive a suspension of his sentence.
The trial
court denied the motion in an order entered on June 25, 2004.
This appeal followed.
12
This order was entered on October 1, 2003.
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We first note that because Schindewolf pled guilty, he
waived his right to a direct appeal of his sentence.13
Further,
neither of the issues raised in his appeal are based on
ineffective assistance of counsel, the original theory of his
RCr 11.42 motion.
In any event, Schindewolf’s arguments on
appeal are without merit.
His claims are based on an erroneous
conclusion that the trial court lost jurisdiction to sentence
him following an eight-month period during which he was allowed
to participate in the drug court program and failed to
successfully complete the program.14
Schindewolf agreed to the
delay when he signed a motion to plead guilty based upon the
Commonwealth’s offer that he could participate in the drug court
program and have his sentence placed on diversion during that
time.
Had he successfully completed the drug court program,
Schindewolf would have received a probated sentence.
“Delay in sentencing a defendant after conviction can
in certain instances deprive the court of jurisdiction over him,
13
It is well-established that a defendant may waive his right to appeal and
such a waiver is enforceable if it is agreed to knowingly and voluntarily.
The waiver of such right is also a waiver to challenge the defendant’s
sentence, “regardless of the merits”. See United States v. Khattak, 273 F.3d
557, 561 (3d Cir. 2001).
14
Schindewolf acknowledged the jurisdiction of the trial court to vacate his
sentence pursuant to RCr 11.42 in his motion filed on April 14, 2004,
negating his later argument to this Court that the trial court lacked
jurisdiction to sentence him.
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but the delay must be ‘unreasonable’.”15
When a delay in
sentencing occurs at the request of the defendant and was not
oppressive or a purposeful circumvention of the probation
statutes, then no unreasonable delay has occurred which would
deprive the trial court of jurisdiction to sentence.
Furthermore, Schindewolf failed to object or to question the
trial court’s jurisdiction at the time he was sentenced.
By
such failure, Schindewolf has waived any objection to the trial
court’s jurisdiction to impose a delayed sentence.16
For the foregoing reasons, the judgment of the Hardin
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Dale Schindewolf, Pro Se
Lexington, Kentucky
Gregory D. Stumbo
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
15
Payton v. Commonwealth, 605 S.W.2d 37, 38 (Ky.App. 1980) (citing Green v.
Commonwealth, 400 S.W.2d 206 (Ky. 1966)).
16
See Payton, 605 S.W.2d at 38 (citing Singleton v. Commonwealth, 306 Ky.
454, 208 S.W.2d 325 (1948); and Dilley v. Commonwealth, 243 Ky. 464, 48
S.W.2d 1070 (1932)).
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