concurring.
I concur with the majority opinion. However, I would urge the Kentucky Supreme Court to review its holding in Baker v. Commonwealth1 that the “failure to object on grounds of double jeopardy does not constitute a waiver of the right to raise the issue for the first time on appeal.”2 As the majority opinion notes, the Baker; Gunter⅛3 and Sherley4, cases appear to provide an exception to the general longstanding rule that “a valid guilty plea effectively waives all defenses other than that the indictment charged no offense.”5
In the Sherley case, our supreme court relied on the U.S. Supreme Court case in Menna6 to create the exception to the general rule.7 However, in the Menna case, the U.S. Supreme Court stated that “[w]e do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that judged on its face the charge is one which the State may not constitutionally prosecute.”8 The Court held only that a conviction may be set aside on appeal, even though it was entered pursuant to a plea of guilty and the issue of double jeopardy was not raised, “[wjhere the State is precluded by the United States Constitution from haling a defendant into court on a charge[.]”9
*23Furthermore, the Kentucky Supreme Court conceded in the Baker case that “[f|rom Menna to Sherley and Gunter is a significant leap of logic and we now question its soundness.”10
The case before this court is not one where the state was precluded from “haling” the defendant into court. Here, there was no double jeopardy issue until Lay pled guilty to both charges. Thus, I believe that his guilty plea constituted a waiver of any double jeopardy claim. Nevertheless, as this court is bound by the precedents of the Kentucky Supreme Court in Sherley and its progeny, we are bound to consider Lay’s double jeopardy claim on its merits.11
Finally, I note that in Spears v. Commonwealth,12 the Kentucky Supreme Court held in a unanimous opinion that Spears’s double jeopardy claim was waived because he had pled guilty to the offenses for which he was charged.13 That opinion has since been withdrawn from publication. However, it is significant in that it represents that our supreme court may no longer follow the hard-and-fast rule of Baker, Sherley, and Gunter.
In short, I concur with the majority opinion, but I urge our supreme court to clarify this issue.
. 922 S.W.2d 371 (Ky.1996).
. Id. at 374.
. Gunter v. Commonwealth, 576 S.W.2d 518 (Ky.1978).
.Sherley v. Commonwealth, 558 S.W.2d 615 (Ky.1977).
. See Thompson v. Commonwealth, 147 S.W.3d 22, 39 (Ky.2004).
. Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975).
. See Sherley, 558 S.W.2d at 618.
. 423 U.S. at 63, 96 S.Ct. 241.
. Id. at 62, 96 S.Ct. 241.
. 922 S.W.2d at 374.
. See Rules of the Supreme Court (SCR) 1.030(8)(a).
.134 S.W.3d 12 (Ky.2004).
. Id. at 15.