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Black v. Commonwealth7/1/2005
jury should not have been allowed to issue a superceding indictment. Essentially, he claims that the grand jury's failure to indict him on tampering constituted a "no true bill" on that charge, requiring the prosecutor to present the evidence to another grand jury in order to obtain an indictment on that charge. We disagree with this contention; moreover, it is unnecessary to further consider the issue because Black waived his right to appeal the trial court's decision when he entered an unconditional guilty plea.
A guilty plea waives all defenses except that the indictment failed to charge a crime. Centers v. Commonwealth, 799 S.W.2d 51 (Ky. App. 1990). Black recognizes this doctrine and attempts to circumvent it by arguing that subject matter jurisdiction, which cannot be waived, is involved. We disagree.
In Kentucky, subject matter jurisdiction over a felony offense may be invoked either by a grand jury indictment or by information in cases where the individual consents. . . The right to waive a particular form, mode, or kind of accusation in a particular instance is an individual right of the accused.
Malone v. Commonwealth, 30 S.W.3d 180, 183 (Ky. 2000). Thus, if an individual can waive his right to be indicted and allow the Commonwealth to proceed against him by indictment, it stands to reason that that he may also waive any defects in the form of the indictment. By pleading guilty, Black waived his argument that the indictment against him was defective.
Black's second argument is that the trial court erred by refusing to allow him to withdraw his guilty plea at his sentencing. Kentucky Rule of Criminal Procedure 8.10 requires a trial court to allow a defendant to withdraw his guilty plea if the trial court is not going to sentence him in accordance with the plea bargain. Black claims that the trial court's refusal to state whether it would grant him shock probation in ninety days deviated from the sentence he had bargained for. He further contends that, if it decided not to allow him to withdraw his plea, the trial court should have substituted the original offer of a three-year sentence. Black cites no authority supporting the proposition that he should have been allowed to accept an offer that no longer existed.
The plea bargain was never an either/or situation: the initial offer was three years to serve, which he rejected. Only after that rejection did the second offer come into existence. Furthermore, the trial court's refusal to state whether it would later grant shock probation did not violate the terms of the plea agreement. The plea agreement bound the Commonwealth not to oppose shock probation after ninety days if Black's presentence conduct so merited. While one could make a good argument that Black's conduct in getting arrested in New York would have allowed the Commonwealth to oppose shock probation, that issue is irrelevant. The trial court was not bound by the terms of the plea agreement to actually grant the motion for shock probation. Black's attempt to argue that the plea agreement guaranteed shock is not supported by its language. Thus, the trial did not reject the agreement and was not required by RCr 8.10 to allow him to withdraw his plea.
For the foregoing reasons, the judgment of the Mason Circuit Court is affirmed.
ALL CONCUR.
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