ROY SHANNON JOHNSON V. COMMONWEALTH OF KENTUCKY
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TO BE PUBLISHED
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2002-SC-0553-MR
[OATIE
ROY SHANNON JOHNSON
V.
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO . 02-C R-00016
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
This matter comes before this Court as a matter of right appeal following
Appellant's conviction by the Knox Circuit Court of manufacturing methamphetamine .
Appellant was also charged with being a first-degree persistent felony offender .
After a jury convicted Appellant on the manufacturing charge, he entered into a
plea agreement whereby he accepted the Commonwealth's offer of an amended charge
of second-degree persistent felony offender . Appellant subsequently appealed his
conviction for manufacturing methamphetamine to this Court after having received a
sentence of twenty-one years imprisonment .
The Commonwealth moved to dismiss this appeal outright, or in the alternative,
to abate and remand to the trial court to determine whether Appellant waived his right to
appeal in exchange for the reduction of the PFO charge . We granted the
Commonwealth's motion in part and remanded the case to the Knox Circuit Court for
such a determination . On May 21, 2003, the Knox Circuit Court entered an order
finding that Appellant had knowingly waived his right to appeal both the amended
charge of second-degree persistent felony offender and the underlying conviction for
manufacturing methamphetamine during the plea colloquy that took place prior to
sentencing . We note that no appeal has been filed from that order . We now have
before us the Commonwealth's motion to dismiss . Appellant objects to the motion,
arguing that the record is not clear on the waiver issue and that by filing a notice of
appeal counsel indicated a lack of awareness of a waiver.
In the May 21, 2003 order, the trial court found that "Johnson did, in fact, waive
his right to appeal his conviction for manufacturing methamphetamine," based on the
record made at entry of the plea.
A review of the trial record reveals the following plea colloquy :
Court: You understand that you also give up your right to
appeal this court's judgment of this case if in fact you plead
guilty?
Defendant : Yes, sir.
After the court further inquired into the knowing and voluntary nature of Appellant's
guilty plea, the trial judge again stated :
Court : And just so the record is clear, it is the Court's
understanding that in consideration of the Commonwealth
agreeing to amend the persistent felony offender charge in
the first degree to persistent felony offender in the second
degree, and agreeing to the sentence that the
Commonwealth recommended, the defendant waives any
claim to appeal his conviction on the charge of
manufacturing methamphetamine . Is that correct?
Counsel for Defendant: That's correct, you Honor.
Court : You understand that? I don't think that I said that as
expressly as perhaps I should have, Mr. Johnson, but you do
understand that you are giving your right, giving up your right
to appeal that particular conviction?
Defendant : Yes, sir.
Surprisingly, this Court does not appear to have directly addressed the question
of whether the right to appeal guaranteed under the Federal and Kentucky Constitution
can be waived under these circumstances . The federal courts have, however,
addressed the waiver of constitutional rights in general .
"Any right, even a constitutional right, may be surrendered in a plea agreement if
that waiver was made knowingly and voluntarily." United States v . Ashe , 47 F .3d 770,
775-776(6 th Cir. 1995) ; see also Town of Newton v. Rumery, 480 U .S. 386, 393, 107 S.
Ct. 1187, 1192, 94 L. Ed . 2d 405, 416 (1987) (holding that plea bargaining does not
violate the U .S . Constitution even if important constitutional rights are waived) . It is
likewise well established that a plea agreement and any waivers contained therein are
binding upon a defendant . United States v . Beason , 42 Fed . Appx . 787, 789 (6th Cir.
2002) .
We see no reason to depart from the reasoning of the federal cases and thus
believe that the right to an appeal may indeed be waived and was so waived here .
Therefore, the motion to dismiss the appeal filed by the Commonwealth is hereby
GRANTED .
Subsequent to the entry of the trial court's determination that Appellant had
indeed waived his right to appeal, Appellant moved for an evidentiary hearing before the
trial court . We see no need for such a hearing given the clear specific language of the
questions propounded by the trial court when the plea was accepted . Therefore, the
motion for an evidentiary hearing is DENIED.
All concur .
Entered : August 21, 2003
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