Windsor v. Com., No. 2007-SC-000039-MR.

• Decision Date: 24 April 2008
• Docket Number: No. 2007-SC-000039-MR.
• Citation: 250 S.W.3d 306
• Parties: Shawn WINDSOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

250 S.W.3d 306

Shawn WINDSOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000039-MR.

Supreme Court of Kentucky.

April 24, 2008.

Daniel T. Goyette, Louisville Metro Public Defender, J. David Niehaus, Deputy Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.

Jack Conway, Attorney General, David A. Smith, Assistant Attorney General, Office of the Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCHRODER.

The issue in this case is whether an unconditional guilty plea automatically waives a direct appeal authorized by Section 115 of the Kentucky Constitution. Although the AOC guilty plea form no. 491 used in this case does contain an express waiver of a direct appeal, the waiver is not absolute. Therefore, the case must be remanded for reinstatement of the right to appeal.

Against the advice of counsel, Shawn Windsor entered an unconditional plea of guilty to two counts of murder (and two other charges). At the time he entered a guilty plea, he requested the judge impose the death penalty. At the sentencing hearing, the judge entered a sentence of death on each murder charge (as well as sentences on the other two offenses). In the court's "Judgment of Conviction and Sentence", entered November 17, 2006, the Appellant was found guilty of two counts of Capital Murder (and the two other charges), and sentenced to death on each murder count. The judgment also contained a notice to the Appellant "that he has the right to appeal and that, if he is unable to pay the costs of appeal or employ counsel for appeal, the Court will appoint counsel and will grant the [Appellant] the right to file his appeal in forma pauperis." Subsequently, appointed counsel filed a motion to proceed in forma pauperis on appeal. The Commonwealth objected on grounds that Appellant had waived his right of direct appeal pursuant to his guilty plea. By "Order Amending Judgment", entered December 13, 2006, the circuit court amended the judgment "to reflect that the [Appellant] has no right to appeal but the Judgment will receive the mandatory review by the Kentucky Supreme Court as provided by statute."

Appellant contends that the amended judgment, to the extent that it extinguishes his constitutional right to appeal, constitutes error. We agree. While an unconditional guilty plea waives the right to appeal many constitutional protections as well as the right to appeal a finding of guilt on the sufficiency of the evidence, Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky.App.1986), there are some remaining issues that can be raised in an appeal. These include competency to plead guilty;¹ whether the plea complied with the requirements of Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);² subject matter jurisdiction and failure to charge a public offense;³ and sentencing issues.⁴ In Roe v. Flores-Ortega, the United States Supreme Court recognized that "a guilty plea reduces the scope of potentially appealable issues." 528 U.S. 470,...