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Fletcher v. State (6/10/2011) ap-2312

Fletcher v. State (6/10/2011) ap-2312

         The text of this opinion can be corrected before the opinion is published in the Pacific 
        Reporter.   Readers are encouraged to bring typographical or other formal errors to the 
        attention of the Clerk of the Appellate Courts. 

                                  303 K Street, Anchorage, Alaska    99501
                                           Fax:  (907) 264-0878
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WINONA M. FLETCHER,                               ) 
                                                  )         Court of Appeals No. A-10455 
                             Appellant,            )      Trial Court No. 3AN-05-10472 CI 
              v.                                  )                    O P I N I O N 
STATE OF ALASKA,                                  ) 
                                                  )            No. 2312 - June 10, 2011 
                             Appellee.             ) 

                 Appeal     from    the   Superior    Court,    Third   Judicial   District, 
                 Anchorage, Philip R. Volland, Judge. 

                 Appearances:      Beth G.L. Trimmer, Assistant Public Advocate, 
                 and    Rachel    Levitt,   Public    Advocate,     Anchorage,      for   the 
                 Appellant.  Nancy R. Simel, Assistant Attorney General, Office 
                 of Special Prosecutions and Appeals, Anchorage, and Daniel S. 
                 Sullivan, Attorney General, Juneau, for the Appellee. 

                 Before:     Coats,    Chief   Judge,   Bolger,    Judge,   and   Andrews, 
                 Senior     Superior    Court   Judge.*     [Mannheimer,        Judge,   not 


                 BOLGER, Judge. 

        *    Sitting   by   assignment   made   pursuant   to   article   IV,   section   11,   of   the   Alaska 

Constitution and Administrative Rule 23(a). 

----------------------- Page 2-----------------------

                In 1985, the superior court waived juvenile jurisdiction over Winona M. 

Fletcher, and she then pleaded no contest to two counts of first-degree murder and one 

count    of  second-degree      murder.    In   2005,   Fletcher   filed  an  application    for  post- 

conviction relief, alleging that new evidence required that her conviction be vacated. 

The   new   evidence   consisted   of   the   recantation   of   Fletcher's   co-defendant   and   new 

research on juvenile brain development suggesting that she would have been amenable 

to treatment as a juvenile. 

                The superior court dismissed Fletcher's application, and she now appeals. 

We conclude that Fletcher's claim is non-jurisdictional and that she waived her right to 

contest any non-jurisdictional defects in the juvenile waiver proceeding when she entered 

her pleas of no contest. 


                In April 1985, Fletcher and her boyfriend Cordell Boyd forced their way 

into the home of Tom and Ann Faccio and Emilia Elliott.                 At the time, Fletcher was 

fourteen years old and Boyd was nineteen years old.   Boyd demanded money from Mr. 

Faccio, who gave Boyd approximately $700.               Fletcher shot and killed Ms. Faccio and 

Elliott, and either Boyd or Fletcher shot and killed Mr. Faccio. 

                The State filed a petition for waiver of juvenile jurisdiction over Fletcher. 

Boyd testified against Fletcher at the waiver hearing.          Based on Boyd's testimony, the 

court found that, before the robbery, Boyd did not have any interest in killing the victims, 

but Fletcher explicitly stated that she was willing to kill them. 

                The court also found that Fletcher "was not forced, coerced, induced, or 

under influence by Boyd when she shot Ann Faccio and Emilia Elliott."                  Accordingly, 

                                                - 2 -                                            2312

----------------------- Page 3-----------------------

the court concluded that there was probable cause to believe that Fletcher committed 

first-degree murder in the killing of Mr. Faccio, Ms. Faccio, and Elliott. 

                 Five   mental   health   professionals   -   Drs.   James   Harper,   David   Coons, 

Michael Rose, Irvin Rothrock,   and Deborah Geeseman - testified about Fletcher's 

amenability to treatment.         Dr. Harper testified that Fletcher has a moral deficiency that 

caused her to lack normal emotional feelings.  Drs. Harper, Rothrock, Rose, and Coons 

testified that an individual with Fletcher's personality features has a "poor prognosis for 

rehabilitation."     Dr.   Geeseman   was   the   only   expert   who   believed   that   there   was   a 

likelihood that Fletcher could be successfully treated before she turned twenty. 

                 The court concluded that Fletcher would be unamenable to treatment before 

reaching twenty years of age.           The court therefore waived juvenile jurisdiction over 

                 Fletcher was indicted on three counts of first-degree murder.  Fletcher then 

pleaded no contest to two counts of first-degree murder and one count of second-degree 

murder.     The court originally sentenced Fletcher to consecutive terms of ninety-nine 

years   of   imprisonment   for   each   count,   but   her   sentence   was   later   reduced   to   three 

consecutive, forty-five-year terms. 

                 In   December       1986   -    two    days   after  Fletcher    was    sentenced     -    a 

newspaper article stated that Boyd had recanted his testimony from the waiver hearing 

when he said the killings were Fletcher's idea.             In the article, Boyd stated that he told 

         1   Former AS 47.10.060 (1984 & Supp. 1985) provides as follows: 

            Waiver of jurisdiction. (a) If the court finds at a hearing on a petition
            that there is probable cause for believing that a minor is delinquent and
             finds that the minor is not amenable to treatment under this chapter, it
             shall order the case closed. After a case is closed under this subsection,
            the minor may be prosecuted as an adult.
                                                   - 3 -                                                2312 

----------------------- Page 4-----------------------

Fletcher to kill Ms. Faccio and Elliot.           He indicated that he was telling the truth "for 

Winona's sake" and admitted that he "still care[d] for his one-time love." 

                In June 1987, Boyd was interviewed by Fletcher's attorney.                  During the 

interview, Boyd again stated that he lied during the waiver hearing.   Boyd stated that he 

was primarily responsible for the murders and that he told Fletcher to kill the women. 

                On August 5, 2005, Fletcher filed an application for post-conviction relief. 

Fletcher     alleged    in  her   amended      application    that   Boyd's     recantation    and   new 

developments in juvenile brain research had altered the opinions of the mental health 

professionals who evaluated Fletcher's amenability to treatment.                 Fletcher alleged that 

this new evidence   could have caused the court to deny the State's motion to waive 

juvenile jurisdiction and that the adult court would not have had jurisdiction over her. 

                To support her application, Fletcher included updated opinions from three 

of   the   five   mental   health   professionals   who   originally   evaluated   her   amenability   to 

treatment.       In  particular,   Dr.  Harper    indicated    that  "had    the  new    juvenile   brain 

development research, as well as Mr. Boyd's new statement been available ... at the time 

[he] evaluated [Fletcher], this data would have affected [his] findings, inferences based 

on those findings, and ultimate opinion."            Based on this new information, Dr. Harper 

indicated he "would almost certainly have concluded that Winona Fletcher could be (or 

could have been) rehabilitated by her 21st birthday." 

                The State filed a motion to dismiss Fletcher's application and Superior 

Court   Judge   Philip   R.   Volland   granted   the   motion.    Judge   Volland   concluded   that 

Fletcher's application was barred by the statute of limitations because she did not present 

anything that legally qualified for the exception for newly discovered evidence.  The 

court also concluded that Fletcher waived any defects in the juvenile waiver proceeding 

by pleading no contest in adult court. 

                                                  - 4 -                                             2312

----------------------- Page 5-----------------------

                Fletcher now appeals the superior court's order dismissing her application. 

We review this ruling as an order granting summary disposition, viewing the evidence 

in the light most favorable to Fletcher and independently determining whether the State 
was entitled to dismissal as a matter of law.1 


                A criminal defendant waives all non-jurisdictional defects in the previous 
proceedings when she enters a plea of guilty or no contest.2                 In other words, when a 

defendant enters a no contest plea, she "may not thereafter raise independent claims 

relating to the deprivation of constitutional rights that occurred prior to the entry of the 
... plea."3  Jurisdictional defects, which cannot be waived, include those constitutional 

defects   that   cannot   be   cured   -   issues   that   would   forever   preclude   the   defendant's 
conviction, regardless of his factual guilt.4 

                The lack of subject matter jurisdiction is a jurisdictional defect that is not 
waived by a no contest plea.5  But personal jurisdiction is not a jurisdictional issue of this 

kind - personal jurisdiction may be acquired by waiver or consent of the defendant.6 

        1   Lindeman v. State, 244 P.3d 1151, 1154 (Alaska App. 2011). 

        2   Cooksey v. State, 524 P.2d 1251, 1255 (Alaska 1974). 

        3   Tollett v. Henderson, 411 U.S. 258, 267 (1973). 

        4   Menna v. New York, 423 U.S. 61, 62 n.2 (1975); Blackledge v. Perry, 417 U.S. 21, 

30 (1974). 

        5   See Wanamaker v. Scott, 788 P.2d 712, 713 n.2 (Alaska 1990) ("A court which 

does not have subject matter jurisdiction is without power to decide a case, this issue cannot 
be waived, and can be raised at any point during the litigation."). 

        6   See Morgan v. State, 635 P.2d 472, 479 n.11 (Alaska 1981) (quoting 21 Am. Jur. 

2d Criminal Law  379 (1965)); see also S.B. v. State, Dep't of Health & Soc. Servs., 61 P.3d 
6, 14 (Alaska 2002) (noting that the respondent waived any objection to personal jurisdiction 
                                                  - 5 -                                               2312 

----------------------- Page 6-----------------------

To determine if Fletcher's claim is non-jurisdictional and barred by her plea, we must 

examine   whether   her   challenge   is   to   the   court's   subject   matter   jurisdiction   or   to   an 

authority similar to personal jurisdiction.            The proper classification of Fletcher's claim 
is a question of law on which we must exercise our independent judgment.7 

                 The State points out that several courts, applying these distinctions, have 

held that defects in a juvenile waiver proceeding are non-jurisdictional defects that are 
waived   or   forfeited   when   the   defendant   enters   a   no   contest   plea.8    For   example,   in 

Rodriguez v. Ricketts, the Ninth Circuit analyzed a case where a seventeen-year-old 

defendant, Roy Rodriguez, entered a guilty plea to second-degree murder after his case 
had been transferred to superior court.9             Rodriguez later filed for habeas corpus and 

claimed that his juvenile transfer proceeding was "infected by a number of constitutional 
errors."10    The   federal   court   held   that   "the   state   superior   court   always   had   original 

jurisdiction over this felony matter." 11         The determination of "whether to try Petitioner 

in superior court or in juvenile court, which is a division of superior court, does not go 

by failing to raise it). 

         7   In re Estate of Fields, 219 P.3d 995, 1003 (Alaska 2009). 

         8   See Rodriguez v. Ricketts, 798 F.2d 1250, 1252 (9th Cir. 1986); State v. Marks, 

920 P.2d 19, 21-22 (Ariz. 1996); State v. Burnight, 978 P.2d 214, 217-18 (Idaho 1999); State 
v. Yodprasit, 564 N.W.2d 383, 384 (Iowa 1997); Waynewood v. State, 552 N.W.2d 718, 719 
(Minn. 1996); Petition of Nilles, 412 N.W.2d 116, 117-18 (S.D. 1987); State v. Griffin, 914 
S.W.2d 564, 567 (Tenn. Crim. App. 1995); State v. Kraemer, 457 N.W.2d 562, 563-64 (Wis. 
App. 1990). 

         9   798 F.2d at 1251. 

         10  Id. 

         11  Id. at 1252. 

                                                    - 6 -                                                 2312 

----------------------- Page 7-----------------------

 'to the very power of the State to bring the defendant into court to answer the charge 
brought against him,' and thus does not raise a jurisdictional question."12 

                 Likewise,   in  State   v.   Marks,   the   Arizona   Court   of   Appeals   addressed 

whether a juvenile waived his objection to the court's jurisdiction where the underlying 
juvenile   transfer   order   was   faulty. 13    While   Richard   Marks's   appeal   of   the   juvenile 

transfer order was pending, he was convicted as an adult.14                  His juvenile transfer order 

was ultimately vacated on due process grounds.15  On appeal, Marks argued that, because 

the juvenile court did not properly transfer its jurisdiction, the adult court lacked subject 
matter jurisdiction.16 

                 The court of appeals noted that the superior court is the court of general 

jurisdiction in Arizona and has jurisdiction over delinquent juveniles and criminal cases 
amounting to felonies.17  Although the counties could create juvenile departments within 

the superior court, this departmentalizing process did "not partition [the superior court's] 
general   subject   matter      jurisdiction."18     When      a  transfer    proceeding     is  flawed,   the 

"consequence is to deprive the adult division of personal jurisdiction over an improperly 

         12  Id. (quoting Blackledge, 417 U.S. at 30 (citations omitted)). 

         13  920 P.2d at 20-21. 

         14  Id. at 21. 

         15  Id. 

         16  Id. 

         17  Id. at 21-22. 

         18  Id. at 22. 

                                                     - 7 -                                                 2312 

----------------------- Page 8-----------------------

transferred defendant."19        Since personal jurisdiction can be waived, Marks effectively 

waived his objection by failing to object within the specified time frame.20 

                 In   response   to   these   cases,   Fletcher   points   out   that   other   courts   have 

allowed a minor to withdraw a guilty plea to cure constitutional errors in a juvenile 

waiver proceeding. For example, in Commonwealth v. Cotto, a defendant entered guilty 

pleas to adult charges, specifically reserving the right to appeal the constitutionality of 
the juvenile waiver statute.21       The Pennsylvania Superior Court stated in dicta that issues 

regarding the constitutionality of juvenile waiver proceedings are jurisdictional issues 
that are not waived by a minor's guilty plea.22 

                 Alaska   waiver   proceedings   appear   to   be   more   similar   to   the   Arizona 

proceedings described in the Ricketts and Marks opinions.   In Alaska, the superior court 
has jurisdiction over both juvenile and adult felony prosecutions.23                    So an attack on the 

quality of the evidence produced at the waiver hearing does not implicate the subject 

        19   Id.

        20   Id.

        21   708 A.2d 806, 808 (Pa. Super. 1998). 

        22   Id . at 808 n.1. 

        23   See AS 22.10.020(a) ("The superior court is the trial court of general jurisdiction, 

with original jurisdiction in all civil and criminal matters, including probate and guardianship 
of minors and incompetents."). 
                                                     - 8 -                                                  2312 

----------------------- Page 9-----------------------

matter jurisdiction of the court.24       The waiver hearing only affects the "jurisdiction over 

the minor," an issue of authority that is similar to personal jurisdiction.25 

                 Moreover,        Fletcher     does    not   raise    any    serious    claim     about    the 

constitutionality of the waiver proceeding itself.             Fletcher received a hearing with full 

due process protections, where she was vigorously represented by counsel.  The hearing 

was followed by a direct appeal where she had the opportunity to raise any defects in the 
waiver proceeding.26        It was only after the hearing and the appeal were completed that 

Fletcher made the decision to enter a plea of no contest. 


                 Fletcher   waived   the   right   to   contest   the   result   of   her   juvenile   waiver 

proceeding when she entered her pleas of no contest.   In view of this conclusion, we are 

not required to address Judge Volland's ruling that Fletcher's application was untimely. 

We      AFFIRM        the   superior    court's    order    dismissing      Fletcher's     post-conviction 


        24   See In re Estate of Fields, 219 P.3d at 1005-06 (holding that, despite   statutes 

specifying special probate procedures, the superior court had general jurisdiction over equity 
claims and probate jurisdiction over a decedent's estate). 

        25   See   State   v.   Ladd, 951   P.2d   1220, 1221   (Alaska   App. 1998) (referring   to   the 

waiver decision as affecting "jurisdiction over the minor"); see also State v. G.L.P., 590 P.2d 
65,   70   (Alaska   1979)   (referring   to   the   waiver   proceeding   as   the   process   by   which   the 
"superior court waives its juvenile jurisdiction over [the juvenile]"). 

        26   See W.M.F. v. State, 723 P.2d 1298 (Alaska App. 1986). 

                                                    - 9 -                                                 2312 
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