Twyman v. State

• Decision Date: 18 August 1983
• Docket Number: No. 2-183A3,2-183A3
• Parties: Nickie L. TWYMAN, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 434

452 N.E.2d 434

Nickie L. TWYMAN, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.

No. 2-183A3.

Court of Appeals of Indiana,

First District.

Aug. 18, 1983.

Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for petitioner-appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for respondent-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Nickie L. Twyman appeals from the denial of his petition for post-conviction relief under Indiana Rules of Procedure, Post-Conviction Rule 1. We affirm.

FACTS

In May of 1974, Nickie L. Twyman was arrested on a charge of robbery. An information was filed on May 15th charging William Twyman with the robbery. Nickie Twyman was in fact the person arrested on this charge. William is Nickie's brother who was then twenty years old. At the time, Nickie was three months short of seventeen. Nickie Twyman appeared in the Criminal Court of Marion County, Division Two, and pleaded not guilty. At no time did he reveal either his true age or identity to the court although he testified he told his lawyer. Later, pursuant to a plea agreement, the charge was reduced to assault and battery with intent to commit a felony, ¹ and Nickie pleaded guilty on July 24, 1974, receiving an indeterminate sentence of one to ten years. At the guilty plea hearing, Nickie twice told the court he was twenty years old. At his sentencing hearing on July 29, 1974, Nickie stated, in response to the court's question, that he knew of no reason why the court should not enter sentence on his guilty plea. Nickie's identity as the person who committed the offense clearly was established at the guilty plea hearing by the testimony of the victim and the arresting officers. Nickie served the sentence imposed.

In 1978, and again in 1980, Nickie was convicted of burglary. In the 1980 charge, an additional count charging him with being an habitual offender ² was added and his sentence was enhanced by thirty years for a total sentence of forty years. The 1974 conviction is one of the underlying felonies supporting the habitual offender charge. He appealed the habitual offender determination challenging only the sufficiency of the evidence of identification of him as the same person as the William Twyman whose prior convictions were the basis for the habitual offender adjudication. Our supreme court affirmed. Twyman v. State, (1982) Ind., 431 N.E.2d 778.

Twyman then filed this petition for post-conviction relief on June 23, 1982, asserting for the first time his juvenile status in 1974, and attacking the 1974 conviction on the ground the court lacked jurisdiction to accept his guilty plea and to enter sentence. The state answered that Twyman's claim for post-conviction relief was barred by the failure to assert his claim from July 29, 1974, to the filing of the petition in June of 1982.

Following a hearing on the petition, the trial court entered its findings of fact and conclusions of law denying post-conviction relief on the ground that "[t]he issue raised by the Petitioner has been waived for purposes of Post-Conviction Relief under the doctrine of laches because the issue has been available to Petitioner since July 29, 1974." Record at 70.

ISSUES

The issues in this case, which we have restated in the interests of clarity, are:

1. Was Nickie Twyman's 1974 conviction void because the court lacked jurisdiction to accept the guilty plea and to impose sentence?

2. Did the court err in determining that Twyman had been guilty of laches thereby waiving the issue presented in this petition?

DISCUSSION AND DECISION

Issue One

Twyman argues that because of his juvenile status and lack of a waiver from juvenile court in July 1974, the Criminal Court of Marion County lacked subject matter jurisdiction to accept his guilty plea and to enter sentence. Thus he contends his 1974 conviction is void and cannot form the basis for his enhanced sentence as an habitual offender.

If the jurisdictional problem posed by Twyman is one of lack of subject matter jurisdiction, we agree that subject matter jurisdiction cannot be conferred by consent, agreement, waiver, fraud, or laches. To resolve this problem we first must examine the basic concept of jurisdiction and its elements. Then we must consider the effect, if any, of Twyman's misrepresentation of his age and of his delay in asserting his true age.

Jurisdiction is the legal power to entertain any matter or proceeding, and the power to act must be derived from the Constitution or from some statute. Farley v. Farley, (1973) 157 Ind.App. 385, 300 N.E.2d 375, trans. denied (1974). Jurisdiction, in this state, embraces three essential elements: (1) jurisdiction of the subject matter, (2) jurisdiction of the person, and (3) jurisdiction of the particular case. State ex rel . Dean v. Tipton Circuit Court, (1962) 242 Ind. 642, 181 N.E.2d 230; State ex rel. Gilbert v. Circuit Court of Koscuisko County, (1960) 241 Ind. 122, 170 N.E.2d 51; Farley. Subject matter jurisdiction concerns whether or not the particular court has jurisdiction over the general class of actions to which the particular case belongs. Pund v. Pund, (1976) 171 Ind.App. 347, 357 N.E.2d 257; Brendanwood Neighborhood Association, Inc. v. Common Council, (1975) 167 Ind.App. 253, 338 N.E.2d 695, trans. denied (1976). Subject matter jurisdiction must be derived from the Constitution or a statute and cannot be conferred by the consent or agreement of the parties. Carpenter v. State, (1977) 266 Ind . 98, 360 N.E.2d 839; City of Marion v. Antrobus, (1983) Ind.App., 448 N.E.2d 325. Neither can an objection to subject matter jurisdiction be waived. Carpenter; Shanholt v. State, (1983) Ind.App., 448 N.E.2d 308 (transfer pending).

"Jurisdiction of the particular case refers to the right, authority and power to hear and determine a specific case within that class of cases over which a court has subject matter jurisdiction." Antrobus, 448 N.E.2d at 329. A court can have jurisdiction over an entire class of actions but not have jurisdiction over a particular case within that class because of the facts of that particular case. Public Service Company of Indiana, Inc. v. Decatur County Rural Electric Membership Corp., (1977) 173 Ind.App. 198, 363 N.E.2d 995, trans. denied. Objections to the trial court's jurisdiction of the particular case may be waived by not raising them at the earliest opportunity. Antrobus; Shanholt; 7 I.L.E. Courts Sec. 7 (1958).

Jurisdiction of the person refers to the particular parties who are brought before the court, and the right of that particular court to exercise jurisdiction over those parties. Farley. Objections to jurisdiction of the person may be waived by failure to assert them in a timely manner. Vogelgesang v. Metropolitan Board of Zoning Appeals, (1973) 157 Ind.App. 300, 300 N.E.2d 101, trans. denied (1974); Ind.Rules of Procedure, Trial Rule 12(H).

Having made these general observations concerning jurisdiction and its elements, we turn now to a determination of whether or not the criminal court, where there had been no waiver from the juvenile court, lacked subject matter jurisdiction in the 1974 charge against Twyman. Or, if there was a jurisdictional defect, was it merely lack of jurisdiction of the person or lack of jurisdiction of the particular case. Inextricably interwoven into that determination is the effect, if any, of Twyman's deliberate misrepresentation of his age.

The applicable statutes in effect in 1974 provided that the juvenile court shall have exclusive original jurisdiction, absent waiver, in all cases in which a child was alleged to be delinquent. Ind.Code Sec. 33-12-2-3 (Burns' Code Ed.1973, since repealed). A delinquent child was defined, inter alia, as a child under eighteen years of age who had committed an act which would be a crime not punishable by death or life imprisonment if committed by an adult. Ind.Code Sec. 31-5-7-4 (Burns' Code Ed.1973, since repealed) . This statute has been held to give exclusive jurisdiction to the juvenile court over all persons under eighteen except in certain specified cases not involved here. Blackwell v. State, (1970) 255 Ind. 100, 262 N.E.2d 632. It was further provided that, under certain circumstances, the juvenile court could "waive jurisdiction and order such child held for trial ... [in] the court which would have jurisdiction of such offense if committed by an adult." (Emphasis added.) Ind.Code Sec. 31-5-7-14 (Burns' Code Ed.1973). ³

Although our courts on occasion have used the term "subject matter jurisdiction" in reference to juveniles charged with crime in an adult court, Blythe v. State, (1978) 268 Ind. 97, 373 N.E.2d 1098; Seay v. State, (1975) 167 Ind.App. 22, 337 N.E.2d 489; a closer examination of the language employed by our supreme court in several cases leads to the conclusion that the problem is one of jurisdiction of the person rather than jurisdiction of the subject matter. For example, it has been held that a criminal court cannot obtain jurisdiction of a juvenile offender until there is a waiver from the juvenile court. Hicks v. State, (1967) 249 Ind. 24, 230 N.E.2d 757. "Before a criminal court can obtain jurisdiction over a juvenile offender charged with an act which would amount to a crime if committed by an adult, the juvenile court must properly waive its exclusive jurisdiction over the juvenile." (Emphasis added.) Edwards v. State, (1967) 250 Ind. 19, 22, 231 N.E.2d 20, 21, reh. granted as to sufficiency of waiver order, 250 Ind. 23, 234 N.E.2d 845 (1968). "The juvenile court's jurisdiction is exclusive with respect to children charged with crimes (citation omitted). Even if the court finds the prerequisites for waiver to exist ... it retains discretion to keep the child within the juvenile system." (Emphasis added.) Trotter v. State, (1981) Ind., 429 N.E.2d 637, 642. In a case involving the propriety of...