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 cоnvicted 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.,
Twyman then filed this petition for post-conviction relief on June 28, 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-conviсtion 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:
*436 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 lаches. 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)
"Jurisdiction of the particular case refers to the right, authority and power to hear and determine a sрecific case within that class of cases over which a court has subject matter jurisdiction." Antrobus,
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. Metropоlitan Board of Zoning Appeals, (1973)
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 lаck of *437 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 § 338-12-2-3 (Burns' Code Ed.1978, since repealed). A delinquent child was defined, inter alia, as а 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 § 81-5-7-4 (Burns' Code Ed.1978, 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)
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)
"That portion of the statute giving exclusive jurisdiction to the juvenile court and requiring other courts with criminal jurisdiction to transfer the juvenile cases to the juvenile court is a transfer of Jurisdiction of the person and thus a limitation on the court's right to try the juvenile for a crime without first sending the matter to the Juvenile Court." (Emphasis added.)
The majority in Atkins held that an indictment or affidavit in criminal court as to a juvenile is a nullity and "gives the érimi-nal court no jurisdiction of the persons named therein or of the cause." Atkins at
We believe the Criminal Court of Marion County had subject matter jurisdiction both of robbery, the offense originally charged, and assault and battery with intent to commit a felony, the offense to which Twyman pleaded guilty and for which he was sentenced. That court may not have had jurisdiction of the person over Twyman or jurisdiction of the particular case, because of Twyman's juvenile status, but under the particular cireumstances of this case and for reasons hereinafter stated, we believe any objection to the lack of either personal jurisdiction or jurisdiction over the particular case has been waived. 4
Our next inquiry concеrns the effect of Twyman's deliberate misrepresentation to the court that he was twenty years old. The only Indiana case which we have found dealing with misrepresentation of age is Cummings v. State, (1969)
With regard to Cummings, first, we believe the emphasized portions of the foregoing quotations therefrom support our view that the age of the offender, whether juvenile or adult, affects jurisdiction of the person, or, at most jurisdiction of the particular case rather than jurisdiction of the subject matter. Second, Cummings is distinguishable because reаsonably prompt action was taken to rectify the error in contrast to the eight year delay in this case.
Courts in other jurisdictions have held that a juvenile who deliberately misrepresents his age as being over the juvenile age waives his or her right to be treated as a juvenile. Penn v. Peyton, (W.D.Va.1967)
Penn is factually quite similar to this case. There, the defendant in a Virginia state court action told the police, his attorney, and the court that he was eighteen. In fact, he was three months short of seventeen. Six years later, he filed a state habe-as corpus action, and upon denial, filed a federal habeas action seven years after his conviction. In the federal proceeding he contended he had been deprived of his constitutional rights by the failure to comply with juvenile law procedures. The federal court held he had waived his right to a juvenile investigation. The court observed that under Virginia law failure to conduct the statutory investigation (waiver proceedings) deprives the court of jurisdiction to try the defendant as an adult. But, the court noted, all the cases so holding dealt with situations where the court knew the defendant was under eighteen. In discussing the problem presented in Penn, the court stated: -
"Thus, if the trial court here had notice that petitioner was a minor, it is clear the trial court should not have tried petitioner as an adult without conducting the statutory investigation. But in the present case the trial court had no notice that petitioner was a minor, and had been misled by petitioner's assertion that he was 18 years of age.
[[Image here]]
"This court feels that petitioner waived his right to the statutory investigation by misrepresenting to the trial court that he was 18 years of age. To hold otherwise would place an unconscionable burden on the state courts. To uphold petitioner's contention would require the state courts to conduct an independent investigation to determine the true age of every defendant. Any minor defendant would be able to mislead a court and take his chances on being tried as an adult, and then if unsatisfied with the result, the minor defendant could assert his minority and have the conviction set aside.... In the present case ... this court feels that petitioner waived his rights as a minor by misrepresenting his true age."
In Nelson, a street-wise teenаge prostitute deceived the court into believing she was over eighteen, received a suspended sentence, and later asserted her juvenile status when faced with probation revocation, a fact not unlike Twyman's assertion of juvenile status after being sentenced as an habitual offender. 5 'The Washington Court of Appeals held she had waived her right to be treated as a juvenile, saying:
"By her intentionally deceptive conduct, she avoided juvenile court where she would have been connected to her record there and treated accordingly. She opted instead to go to adult court where she received a deferred sentence. It was only when it appeared likely she would go to jail because of her probation violations that she claimed her rights as a juvenile. This the law will not countenance."
The Ilinois Court of Appeals in Henderson said that a "[dJefendant should not be allowed to take her chances in the Criminal Division, and upon an adverse outcome, demand reversal and a new trial in the Juvenile Court."
Thus, we believe that it would be a mockery of the courts and our judicial system if Twyman, who deliberately deceived the criminal court as to his age and accepted the benefit of a plea bargain substantially reducing the charge, were allowed, eight years later, when faced with an enhanced sentence as an habitual offender, to assert his juvenile status for the first time, and have his conviction vaсated. This brings us to the issue of laches as a defense to Twy-man's petition for post conviction relief.
Issue Two
While diligence is not necessarily a prerequisite to obtaining post conviction relief, Stutzman v. State, (1981) Ind.App.,
The question of laches is one to be determined by the court in the exercise of its sound discretion from the facts and circumstances of the particular case. Frazier; Haynes; Stutzman.
"[Laches] is the neglect for an unreasonable length of time, under circumstances permitting diligence, to do what in law should have been done. It is an implied waiver arising from knowledge of existing conditions and an acquiescence in them, the neglect to assert a right, as taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to the other party and thus operating as a bar in a court of equity. [Citation omitted.]"
Frazier,
While lapse of time alone does not necessarily constitutе laches, Frazier, it nevertheless is a significant factor to be considered with the other circumstances in determining the question of laches. In fact, in Hernandez, this court found a six year delay in the challenge of a guilty plea, without explanation for the delay, sufficient to permit the trial court to deny a post conviction relief petition without a hearing.
In our opinion, the facts and circumstances in this case, including Twy-man's dеliberate misstatement of his age, his failure to take prompt action to rectify the matter as in Cummings, his failure to challenge the habitual offender determination on any ground other than identification, and his eight year delay in filing his petition for post conviction relief asserting, for the first time, his juvenile status in 1974, justified the trial court in finding him guilty of laches and denying his petition on that ground. A trial court's determination that a petitioner in a post conviction remedy proceeding is barred by laches will be overturned only where there has been an abuse of discretion. Hernandez; Stutzman. We cannot say the trial court abused its discretion.
Judgment affirmed.
Notes
. Ind.Code § 35-1-54-3 (Burns' Code Ed., since repealed) defines the offense of assault or assault and battery with intent to commit a felony and prescribes the penalty.
. Ind.Code § 35-50-2-8 (Burns' 1979 Repl.)
. All of the juvenile statutes referred to have been repealed and replaced. Fоr current law concerning juveniles see Ind.Code § 31-6-2-1 et seq.
, See Hemphill v. Johnson, (1972)
. We are cognizant that our -courts apparently have recognized the right of a person charged with being an habitual offender to challenge the validity of the underlying felony convictions on constitutional grounds, Hall v. State, (1980) Ind.,