JACKSON (JAMES) VS. NOT BE PUBLISHED COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 05-CR-00008
COMMONWEALTH OF KENTUCKY
VACATING AND REMANDING
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BEFORE: CAPERTON, LAMBERT, AND THOMPSON, JUDGES.
CAPERTON, JUDGE: James Jackson appeals the denial of his motion to vacate,
pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(e) and Kentucky Rules
of Criminal Procedure (RCr) 11.42 motions, his final judgment and sentencing by
the McCracken Circuit Court. Jackson argues that he received ineffective
assistance of counsel when his counsel failed to object to the district court that he
was ineligible for transfer to the circuit court. Jackson also argues that the district
court’s decision to transfer him to circuit court as a youthful offender was in error
as the circuit court lacked jurisdiction over Jackson’s case, and therefore violated
his constitutional rights. Finding error in the standard used to review Jackson’s
guilty plea, we vacate and remand to the trial court for further proceedings
consistent with this opinion.
The facts of the case are relatively undisputed. On October 15, 2004,
Jackson was arrested and charged with one felony - first degree trafficking in a
controlled substance, cocaine - and three misdemeanors: possession of marijuana;
use/possession of drug paraphernalia; and possession, manufacture, or
transportation of a handgun by a minor.
On October 19, 2004, Jackson appeared at the detention hearing, at
which point there was a discussion about whether the charges against Jackson
should be firearm-enhanced pursuant to Kentucky Revised Statutes (KRS)
218A.992 and, thus, whether Jackson should be transferred to circuit court to be
tried as a youthful offender pursuant to KRS 635.020(2). Jackson was fifteen years
old at the time.
The Commonwealth indicated that a motion to transfer would be
forthcoming, and the district court set a transfer hearing for November 10, 2004.
At the transfer hearing, the court determined that Jackson should be transferred to
Following the transfer to circuit court, the grand jury indicted Jackson
on four counts: (1) “enhanced” first-degree trafficking in a controlled substance,
cocaine, (2) possession of marijuana, (3) use/possession of drug paraphernalia, and
(4) possession, manufacture, or transportation of a handgun by a minor. Jackson
entered an unconditional guilty plea and was sentenced to ten years in prison.
However, because Jackson was only sixteen years old at the time of sentencing, his
first two years would be served in a juvenile detention center. At no point, either
at the detention hearing, the transfer hearing, or the sentencing hearing, did counsel
for Jackson object to his certification as a youthful offender and subsequent
transfer to circuit court.
When Jackson turned eighteen years old, he appeared before the
circuit court for resentencing as an adult. Jackson, represented by new counsel,
filed a motion to vacate the final judgment and sentence, asserting that the
judgment should be vacated pursuant to RCr 11.42 and CR 60.02(e), in that the
circuit court lacked jurisdiction because he was wrongfully transferred to the
circuit court. Secondly, Jackson argued ineffective assistance of counsel. In
response to the motion, the Commonwealth argued that Jackson was properly
transferred to circuit court. The court summarily overruled Jackson’s motion.
On appeal, Jackson essentially asserts the same arguments as he
previously presented to the trial court. The Commonwealth argues that Jackson’s
guilty plea waived any claim to ineffective assistance of counsel and that Jackson
should not be allowed to denigrate the plea process by reaping the benefit from the
plea bargain and also challenging his transfer as a youthful offender.
First, we note that a valid guilty plea is often said to waive all
defenses other than that the indictment charges no offense. Quarles v.
Commonwealth, 456 S.W.2d 693 (Ky. 1970). The plea must represent a voluntary
and intelligent choice among the alternative courses of action open to the
defendant. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky.App. 1986) citing
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
“There must be an affirmative showing in the record that the plea was intelligently
and voluntarily made.” Sparks at 727 citing Boykin v. Alabama, 395 U.S. 238, 242,
89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). “[T]he validity of the guilty plea is
determined not by reference to some magic incantation recited at the time it is
taken but from the totality of the circumstances.” Sparks at 727 citing Kotas v.
Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978).
Jackson relies on the Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard for assessing ineffective assistance of
counsel. This is the correct standard for evaluating ineffective assistance of
counsel claims but falls short of the full analysis required when assessing
ineffective assistance of counsel claims when a guilty plea has been entered. The
second prong of Strickland, i.e., prejudice, was refined in Hill v. Lockhart, 474
U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985) to require a defendant
to show “that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.”
Our Court in Sparks at 727-728, set forth the proper standard to be
used when a defendant challenges the effectiveness of his counsel’s advice after a
guilty plea has been entered as:
A showing that counsel's assistance was ineffective in
enabling a defendant to intelligently weigh his legal
alternatives in deciding to plead guilty [and such
showing] has two components: (1) that counsel made
errors so serious that counsel's performance fell outside
the wide range of professionally competent assistance;
and (2) that the deficient performance so seriously
affected the outcome of the plea process that, but for the
errors of counsel, there is a reasonable probability that
the defendant would not have pleaded guilty, but would
have insisted on going to trial. Hill v. Lockhart, 474 U.S.
52, 106 S.Ct. 366, 370, 80 sic  L.Ed.2d 203 (1985).
Cf., Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
Id. at 727-728. “Where, as here, a defendant is represented by counsel during the
plea process and enters his plea upon the advice of counsel, the voluntariness of the
plea depends on whether counsel's advice ‘was within the range of competence
demanded of attorneys in criminal cases.’” Hill at 56 citing McMann v.
Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). The
voluntariness of an unconditional guilty plea is important and competent advice
from counsel is necessary for a defendant to enter such a plea because the entry of
such a plea waives almost all of a defendant’s rights.
In dismissing Jackson’s motion, the trial court failed to undertake an
analysis as to whether the guilty plea entered by Jackson was voluntary. This
Court must refrain from a de novo determination that the plea was entered
voluntarily. Lynch v. Commonwealth, 610 S.W.2d 902 (Ky.App. 1980). To
further confuse matters, the record neither indicates if the standard adopted in
Sparks was ever argued to the trial court, nor whether the trial court applied it as
the proper standard.
Accordingly, we remand back to the trial court to determine if
Jackson’s guilty plea was voluntary. Upon remand, the trial court will need to
determine if a hearing is required under Fraser v. Commonwealth, 59 S.W.3d 448
(Ky. 2001), or if the record conclusively resolves the issues. Whether or not a
hearing is necessary, the Strickland standard as refined by Hill and adopted in
Sparks must be applied to determine whether Jackson’s guilty plea was entered
We do not agree with Jackson’s remaining argument, namely, that the
circuit court lacked jurisdiction when he was improperly transferred, thereby
rendering the judgment void. A circuit court has general jurisdiction over felony
cases and properly transferred juvenile cases. Schooley v. Commonwealth, 556
S.W.2d 912 (Ky.App. 1977). Therefore, the circuit court had general subject
matter jurisdiction over transferred cases; the issue remaining is whether the circuit
court had jurisdiction over Jackson’s particular case.
This issue “is one of policy rather than power. The policy
consideration is one of due process.” Schooley at 916. In Schooley we concluded
that, in order to succeed with a subject matter jurisdiction claim on an RCr 11.42
[M]ust be an error of such magnitude as to render the
judgment of conviction so fundamentally unfair that the
defendant can be said to have been denied due process of
law. The interest of the public in the finality of criminal
judgments of long standing [sic] weighs heavily in the
determination when the error is relatively minor. When
the trial court has general subject matter jurisdiction, an
erroneous finding of the existence of a jurisdictional fact
necessary to the court's jurisdiction in the particular case
does not necessarily render the judgment subject to
Id. at 917.
It is quite apparent that Jackson was represented by counsel during the
proceedings. The record indicates that the court-designated worker checked the
appropriate boxes for classification as a youthful offender and that the district court
made the required findings for Jackson to be certified as a youthful offender.
Jackson argues that the circuit court was without jurisdiction because of erroneous
evidentiary findings in that Jackson was not properly certifiable as a youthful
offender because the charges could not be enhanced under KRS 218A.992,1 with
the “enhancement” then providing the basis for transfer under KRS 635.020(2).
Nevertheless, evidentiary challenges to the basis for certification
should have been raised on direct appeal, especially since Jackson may no longer
benefit from an adjudication in a juvenile proceeding. Any evidentiary error that
counsel failed to bring to the attention of the district court is not now a due process
issue but instead an ineffective assistance of counsel issue. The unconditional
guilty plea entered by Jackson complicated the review of his dilemma, as it served
Without the sentence enhancement Jackson could not meet the felony level required for transfer
to the circuit court under KRS 635.020.
to waive his evidentiary defenses and subsequent claims of error. See Quarles.
Accordingly, we do not believe that the judgment is void or that the evidentiary
error rises to the level of a due process violation.
In light of the posture of this case, the proper procedure is to vacate
the trial court’s ruling on the RCr 11.42 motion and remand for reconsideration
under Sparks as to the voluntariness of Jackson’s guilty plea.
For the aforementioned reasons, we vacate and remand to the trial
court for determination of whether Jackson’s guilty plea was voluntary.
THOMPSON, JUDGE, CONCURS.
LAMBERT, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General