Schooley v. Com.

• Decision Date: 08 July 1977
• Citation: 556 S.W.2d 912
• Parties: Lonnie SCHOOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 912

556 S.W.2d 912

Lonnie SCHOOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

July 8, 1977.

Discretionary Review Denied Nov. 14, 1977.

Jack Emory Farley, Public Defender, Larry H. Marshall, Assistant Public Defender, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, for appellee.

Before MARTIN, C. J., and GANT and PARK, JJ.

PARK, Judge.

The appellant, Lonnie Schooley, appeals from an order of the Jackson Circuit Court overruling his motion under RCr 11.42 seeking to vacate and set aside an earlier judgment of the Jackson Circuit Court sentencing him to two consecutive five year terms for storehouse breaking. Schooley was a juvenile at the time the offenses were committed. In his motion under RCr 11.42, Schooley asserted that the circuit court never acquired jurisdiction over the charges against him because there was no valid transfer of the case by the Jackson County Juvenile Court.

Schooley was originally charged with seven counts of breaking and entering at a time when he was sixteen years of age. Following a hearing on October 8, 1968, the juvenile court entered an order transferring Schooley's case to the circuit court. On October 15, 1968, the grand jury returned two indictments against Schooley for storehouse breaking. Schooley entered a plea of guilty to both charges, and he was sentenced by the circuit court on October 21, 1968, to two consecutive five year sentences.

There was no direct appeal of the judgment of conviction, but the record reflects that Schooley filed an earlier motion under RCr 11.42 in the circuit court on February 14, 1972. The circuit court overruled this motion to vacate the judgment of conviction. Schooley apparently attempted to prosecute an appeal from the denial of his first motion under RCr 11.42, but the record does not establish an appellate decision on the merits. This first motion under RCr 11.42 was filed by Schooley pro se.

The motion now under consideration was filed with the circuit court on July 23, 1974, by the public defender's office on Schooley's behalf. The disposition of this motion was delayed when Schooley escaped from the Jackson County jail while awaiting the hearing on his motion. Following his return to custody, the circuit court conducted hearings on the motion on February 12 and February 20, 1976. The circuit court denied the motion to vacate judgment, holding that there was a valid transfer of jurisdiction from the juvenile court to the circuit court in 1968.

The provisions of KRS 208.170(1) govern the transfer of felony charges against a juvenile from juvenile court to circuit court. In construing KRS 208.170(1), this state's highest court held in Hubbs v. Commonwealth, Ky.,511 S.W.2d 664, 666 (1974):

" * * * either the waiver order, and accompanying statement, or the juvenile court record must include (1) a showing that the juvenile had a hearing at which he was represented by counsel and (2) a statement of the reasons for the transfer which are specific enough to permit meaningful review for the purpose of determining whether there has been compliance with KRS 208.170(1)."

See also, Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Bingham v. Commonwealth, Ky., 550 S.W.2d 535 (1977); Risner v. Commonwealth, Ky., 508 S.W.2d 775 (1974); Whitaker v. Commonwealth, Ky., 479 S.W.2d 592 (1972). A transfer order does not meet the foregoing test if the statement of reasons for the transfer does no more than parrot the language of KRS 208.170(1). The transfer order is not sufficient if it merely states that "the best interest of the child and of the public" require that the juvenile be tried as an adult in circuit court. Bingham v. Commonwealth, supra; Hamilton v. Commonwealth, Ky., 534 S.W.2d 802 (1976).

If the juvenile court fails to make adequate findings, the transfer order is deemed invalid. In Richardson v. Commonwealth, Ky., 550 S.W.2d 538 (1977) the Supreme Court held that an order transferring jurisdiction from the Christian County Juvenile Court was invalid. The Supreme Court then stated that the circuit court did not acquire "jurisdiction" of either the "person or the subject matter" of the case. Not having jurisdiction, the indictment and subsequent judgment in the circuit court were "void." Juvenile offenders convicted in circuit court have successfully challenged their convictions on the grounds of the inadequacy of the transfer order in a number of different circumstances. In the Richardson and Hubbs cases, the challenge was by direct appeal from a judgment based upon a jury verdict. In the Bingham case, the challenge was by direct appeal from a judgment entered upon a guilty plea. In the Hamilton case, the challenge was successfully raised in a subsequent prosecution for being an habitual criminal. Strange as it may seem, there never has been a successful challenge by a motion under RCr 11.42.

In determining whether the Jackson Circuit Court had jurisdiction to enter judgment on Schooley, consideration must be given to the meaning of the term "jurisdiction." In Duncan v. O'Nan, Ky., 451 S.W.2d 626 (1970), the argument was made that a circuit court had no jurisdiction in a will contest case because there was no valid judgment of the county court by which the circuit court could gain jurisdiction on appeal. In holding that the circuit court judgment was not invalid for want of jurisdiction, the court stated:

"As we pointed out in Commonwealth Dept. of Highways v. Berryman, Ky., 363 S.W.2d 525: 'The word "jurisdiction" is more easily used than understood.' That case recognized the general elementary principle that subject-matter jurisdiction cannot be waived. A party will not be estopped to show lack of subject-matter jurisdiction at any time. The parties may not confer subject-matter jurisdiction by agreement. The problem, however, is in delineating the concept 'jurisdiction of the subject matter.' Chief Judge Desmond of the Court of Appeals of New York undertook to do so in In Re Estate of Rougeron, 17 N.Y.2d 264, 271, 270 N.Y.S.2d 578, 583, 217 N.E.2d 639, 643, in this language:

'In other words the rule that subject-matter jurisdiction cannot be born of waiver, consent or estoppel has to do with those cases only where the court has not been given any power to do anything at all in such a case, as where a tribunal vested with civil competence attempts to convict a citizen of a crime. In other words, "subject matter" does not mean "this case" but "this kind of case" * * *.'

"The circuit court had general jurisdiction of the subject matter. It had the power to try this kind of case. A jurisdictional element of this particular case was a judgment complying with formal requisites properly entered in county court. * * *.

"Once it is understood that the circuit court had subject-matter jurisdiction in the pervasive sense and that the mechanics of perfecting invocation of that jurisdiction were jurisdictional elements, then the emphasis shifts from a power concept to a policy concept." 451 S.W.2d at 631-32.

Whether a circuit court has "jurisdiction" of a juvenile felony offender is governed by the foregoing principles.

Circuit courts have general jurisdiction to try felony cases, including charges of storehouse breaking. Circuit courts also have general jurisdiction to try juvenile felony offenders if there has been a valid transfer order pursuant to KRS 208.170(1). Therefore, the Jackson Circuit Court had general subject-matter jurisdiction. The question to be determined is whether the Jackson Circuit Court had jurisdiction of Schooley's particular case. Applying the principles adopted in Duncan v. O'Nan, supra, the question is one of policy rather than power. The policy consideration is one of due process. In Anderson v. Commonwealth, Ky., 465 S.W.2d 70 (1971), the claim was made that the juvenile court acquired no jurisdiction because of its failure to notify the juvenile's parent, guardian or custodian as required by KRS 208.080 and 208.090. As the juvenile court allegedly lacked jurisdiction, it was then argued that it was impossible for the juvenile court to transfer the case to circuit court. In rejecting the jurisdictional argument, the court stated:

"No sound reason appears for holding that the juvenile court lacks jurisdiction respecting a child charged with crime for failure to notify the child's parent, guardian, or custodian. It might well be that a proceeding, totally without notice, would be invalid, but its invalidity would stem from its failure to afford due process and fair treatment, not from any fundamental infirmity in the court's jurisdiction. To the extent that the prior decisions of this court (whether specifically cited herein or not) have been premised on a question of jurisdiction, they are regarded as unsound and nonauthoritative.

"In this framework the failure of appellant, through counsel, to challenge, at least in circuit court, the due-process adequacy of the juvenile court proceedings could well be regarded as failure to preserve the question for appellate review. However, in light of the language of earlier opinions, such a ruling would itself be at least unfair. But, viewed as a due-process question rather than a jurisdictional one, nothing appears which suggests lack of due-process or fair treatment. Appellant had able counsel who was far better able to protect his rights than a parent, guardian or custodian. Not a word is hinted to indicate that more could have been done for appellant in juvenile court than was done there. In light of this, the court holds...