In the Matter of the Personal Restraint of DOUGLAS S. FLETCHER, Petitioner.
No. 54099-3
En Banc.
July 13, 1989.
CALLOW, C.J., and UTTER, BRACHTENBACH, DORE, PEARSON, ANDERSEN, DURHAM, and SMITH, JJ., concur.
Gary P. Burleson, Prosecuting Attorney, and Robert W. Johnson and Victoria Meadows, Deputies; Kenneth O. Eikenberry, Attorney General, and William L. Williams and Aaron K. Owada, Assistants, for respondent.
CALLOW, C.J.—The defendant, Douglas S. Fletcher, pleaded guilty to first degree kidnapping, first degree robbery, and first degree assault. He subsequently was sentenced to three 33-year terms to run consecutively. Fletcher contends that the imposition of consecutive sentences violates double jeopardy and merger principles. We disagree.
I
On February 21, 1979, Douglas Fletcher and Ivan Dishon made plans to rob the Agate store. While driving to the store, they decided that they needed another vehicle to commit the robbery, as they were currently using Fletcher‘s parents’ car. When they pulled up to an intersection, Dishon jumped out of the car and forced his way into another car at gunpoint. The car was occupied by two women. Dishon drove the women‘s car, and Fletcher followed in his parents’ car. The pair drove several miles to a
On February 22, 1979, the Mason County Prosecutor filed an information charging Fletcher with two counts of first degree kidnapping, two counts of first degree assault, one count of first degree robbery, and one count of auto theft. On March 27, 1979, the prosecutor filed an amended information, charging Fletcher and Dishon jointly with the same counts. The information also included a statement that Fletcher and Dishon were armed with deadly weapons or firearms as defined by
COUNT I [kidnapping]
That . . . FLETCHER . . . on or about February 21, 1979, did with intent to facilitate commission of a felony of robbery and flight thereafter, or with intent to inflict bodily injury on [the victim], or with intent to inflict extreme emotional distress on [the victim], did intentionally abduct the said [the victim].
COUNT III [assault]
That . . . FLETCHER . . . on or about February 21, 1979, with intent to kill [the victim], . . . or with intent to commit
the felony of robbery upon the person or property of [the victim], did assault such person with a firearm or deadly weapon.
COUNT V [robbery]
That . . . FLETCHER . . . on or about February 21, 1979, did unlawfully take personal property, to-wit: a 1972 Datsun stationwagon [sic], from the person and in the presence of [the victim], against her will, by use or threatened use of immediate force, violence and fear of injury to such person, and in the commission of and immediate flight therefrom the Defendants were armed with deadly weapons, to-wit: guns, and inflicted bodily injury upon [the victim].
In his statement on plea of guilty, Fletcher stated that:
On February 21, 1979, Ivan Dishon, and I kidnapped 2 women in Mason County. We did this in order to steal their car . . . During this time, I shot [the victim] with a .22 rifle. During the kidnapping and theft of the car, Ivan Dishon used a .22 pistol in my prescence [sic] and with my knowledge.
On June 14, 1979, the court sentenced Fletcher, imposing maximum sentences of life imprisonment on each count, with minimum sentences to be set by the Board of Prison Terms and Paroles (Board). The court also made special findings that Fletcher was armed with a firearm as defined by former
Fletcher subsequently filed a personal restraint petition, raising double jeopardy and merger claims, and asking that his sentence be reviewed under the sentencing reform act. On June 2, 1987, the Court of Appeals entered an order dismissing Fletcher‘s petition. The Indeterminate Sentence Review Board subsequently reconsidered Fletcher‘s sentences. The Board reduced his sentences, but determined that they should continue to run consecutively. Fletcher then filed a petition for review with this court, arguing that
After we accepted review, the Board again reconsidered Fletcher‘s sentences, this time setting the minimum terms to run concurrently. Because of the Board‘s action, Fletcher moved to dismiss this appeal as moot.
However, despite the Board‘s decision, Fletcher‘s maximum terms continue to be consecutive. It appears that these sentences might deleteriously affect Fletcher‘s offender score treatment under former
II(A)
Fletcher asserts that the imposition of consecutive sentences for his kidnapping, robbery, and assault convictions constitutes multiple punishments for the same offense in violation of the guaranties set forth in the double jeopardy clause of the United States Constitution. The double jeopardy clause provides that no person shall “be twice put in jeopardy of life or limb” for the same offense. The double jeopardy clause is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969).
Over a century ago, the United States Supreme Court recognized that the double jeopardy clause protects against the imposition of multiple punishments for the same offense. See Ex parte Lange, 85 U.S. (18 Wall.) 163, 168, 21 L. Ed. 872 (1873). However, Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1976) stated that:
Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.
Missouri v. Hunter, 459 U.S. 359, 366, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983) added that:
With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.
The double jeopardy clause does not prohibit the imposition of separate punishments for different offenses. State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983) held that:
In order to be the “same offense” for purposes of double jeopardy the offenses must be the same in law and in fact. If there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same and the double jeopardy clause does not prevent convictions for both offenses.
II(B)
The test set forth in Vladovic involves two components. First, the offenses must be factually the same. If “proof of one offense would not necessarily also prove the other“, double jeopardy would not protect against multiple punishments. Vladovic, at 423. In State v. Claborn, 95 Wn.2d 629, 628 P.2d 467 (1981) the defendant was charged with first degree assault, second degree burglary, and first degree theft. The burglary and theft charges also included special allegations that the defendant was armed with a deadly weapon. The charges arose out of an incident in which the defendant and two accomplices broke into a tool shop and stole tools and a truck. A jury found the defendant guilty on all three counts and also found that he had been armed with a deadly weapon on the burglary and theft counts. Claborn, at 631.
The defendant contended that the deadly weapons findings on both the burglary and theft counts constituted double jeopardy because the burglary and theft arose out of the same transaction. Claborn, at 636. The court said:
While the state of being armed was the same in both the burglary and the theft, the acts performed to constitute the two
enhanced crimes are quite different both physically and chronologically. Under the facts of this case the burglary was complete once appellant entered the building with intent to steal property therein. The theft occurred after the unlawful entry and took place only when appellant actually took the property. It continued until after he left the building, loaded the truck and drove away. In short, these were separate crimes with distinctly different elements, committed during different segments of time. At best they were only close in point of time . . . A person is not subjected to double jeopardy because two charges arise from the same general incident unless the evidence required to support a conviction on one of them would have been sufficient to warrant a conviction on the other.
(Footnotes omitted.) Claborn, at 636-37.
In State v. Mahoney, 40 Wn. App. 514, 699 P.2d 254 (1985), the defendant was convicted of first degree robbery and second degree assault. He appealed, asserting that the force element of the assault charge was the same force alleged as an element of the robbery charge, and therefore the prohibition against double jeopardy prevented his convictions on both charges. The charges arose out of an incident in which the defendant attacked his foster mother in the garage of her home and pushed her into a car in the garage. The defendant then released the woman, followed her into the house, and demanded her wallet. After she had complied, the defendant then told her husband to give him his wallet. The defendant was convicted of second degree assault against his foster mother and first degree robbery against her husband. Mahoney, at 515-16.
The court stated:
At the time of the assault, there was no attempt at robbery. The money was taken from Mr. Dooley inside the house, but no injury was inflicted at that time and no weapon was present. We believe it is significant that infliction of injury had ceased before the robbery attempt was made. Because the acts constituting the assault were separate and distinct from the acts alleged in the first degree robbery count, there is . . . no risk of double jeopardy.
In this case, the charges against Fletcher were based on the theft of the vehicle, the kidnapping of the owner, and the later shooting. The robbery and kidnapping occurred simultaneously at the moment when Dishon forced his way into the vehicle at gunpoint. Because they occurred simultaneously and the same evidence would be used to prove both crimes, the robbery and kidnapping charges are factually the same.
However, the assault did not take place until after the robbery and kidnapping were completed. As in Claborn and Mahoney, the initial crime was over before the later one was committed. In this case, different evidence would be used to prove the assault than would be used to prove the earlier crimes. Thus, the assault is not the same offense in fact as the robbery and kidnapping, and Fletcher may be punished separately for the assault without violating double jeopardy principles.
II(C)
The second part of the Vladovic test requires that offenses be the same in law in order to constitute the same offense for purposes of double jeopardy. If each offense, as charged, includes elements not included in the other, the offenses are different, and multiple punishments can be imposed. Vladovic, at 423. In Vladovic, the defendant was convicted of attempted first degree robbery, first degree robbery, and four counts of first degree kidnapping. We held that double jeopardy did not prohibit his conviction on both the robbery and kidnapping charges. In Vladovic, the elements of robbery, as charged include (1) a taking of personal property (2) from the person or in one‘s presence (3) by the use or threatened use of force, or violence, or fear of injury, (4) such force or fear being used to obtain or retain possession of the property, and (5) displaying what
In this case, Fletcher has also been charged with first degree kidnapping and first degree robbery. The indictment charged Fletcher with kidnapping by (1) intentionally abducting the victim (2) with intent to facilitate the commission of a felony of robbery and flight thereafter, or (3) with intent to inflict bodily injury on the victim, or (4) with intent to inflict extreme emotional distress on the victim. Fletcher was charged with robbery by (1) unlawfully taking personal property (2) from the person and in the presence of the victim (3) against her will (4) by use or threatened use of immediate force, violence, or fear of injury (5) while armed with a deadly weapon. As was the case in Vladovic, the kidnapping charge required proof of use or threatened use of deadly force, which is not an element of robbery, while the robbery charge required proof of taking of personal property, which is not an element of kidnapping. Thus, the kidnapping and robbery charges are not the same offense. Fletcher can be punished for both crimes without violating double jeopardy principles.
III
Fletcher also argues that his sentences should be vacated under the merger doctrine. Merger refers to a “doctrine of statutory interpretation used to determine whether the Legislature intended to impose multiple punishments for a
where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping).
In State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948 (1980), the defendant was convicted of two counts each of first degree rape, first degree kidnapping, and first degree assault. The convictions resulted from an incident in which the defendant picked up two girls, took them to his cabin, and raped them. In order to prove first degree rape, the State must prove that the rape was accompanied by an act which is defined as a separate crime elsewhere in the criminal statutes. Johnson, at 675. We concluded that:
the legislature intended that conduct involved in the perpetration of a rape, and not having an independent purpose or effect, should be punished as an incident of the crime of rape and not additionally as a separate crime.
Johnson, at 676. We held that the defendant‘s kidnapping and assault convictions merged into the rape conviction.
In Vladovic, we addressed the merger issue in the context of convictions for attempted first degree robbery, first degree robbery, and kidnapping. We distinguished Vladovic from Johnson, stating that in order to prove first degree rape, the State must prove conduct constituting at least one additional crime other than rape. Vladovic, at 419. In contrast, the State can prove first degree robbery without also proving conduct constituting an additional crime. Specifically, proof of kidnapping is not necessary in order to prove robbery. Thus, we concluded that the Legislature did not intend that kidnapping should merge into a robbery conviction. Vladovic, at 421.
As stated, the robbery and kidnapping occurred simultaneously, when Dishon forced himself into the vehicle. Fletcher stated that he and Dishon kidnapped the women in order to steal their car. Thus, the kidnapping was incidental to and a part of the robbery, and did not have an independent purpose or effect, but the assault was separated from the earlier crimes in time and place. The robbery and kidnapping were complete at the time the assault occurred, and the assault was not necessary to carry out these crimes. Because the assault had an “independent purpose or effect“, it is not subject to the merger doctrine, and Fletcher may be punished separately for the assault.
In order to determine whether the robbery and kidnapping convictions should merge it is necessary to examine the elements of each crime to ascertain whether the Legislature intended that the crimes should be punished separately. Proof of kidnapping is not necessary to prove robbery and the kidnapping conviction did not merge into the robbery conviction.
Vladovic stated in dicta that robbery could merge into kidnapping. We said that the first degree kidnapping statute specifically requires proof of another felony in order to elevate the crime to first degree kidnapping. Vladovic, at 421. However, the statute only requires proof of intent to commit various acts, some of which are defined as crimes elsewhere in the criminal code. It does not require that the acts actually be committed.
The order of the Court of Appeals dismissing Fletcher‘s personal restraint petition is affirmed.
BRACHTENBACH, DOLLIVER, DORE, ANDERSEN, and DURHAM, JJ., concur.
UTTER, J. (dissenting)—The majority bypasses the issues of mootness in this case. Realistically, this case does not present a genuine controversy. Worse, the majority misapplies the principles this court has developed in the area of merger. For these reasons, I dissent.
The majority‘s reasons why this court should decide Mr. Fletcher‘s case are not convincing. Although the majority points out that Mr. Fletcher himself now “acknowledges” that the case is not moot, see majority at 46, a party‘s position on mootness has no bearing on whether or not a controversy actually exists.
The majority indicates, at pages 45-46, that the Indeterminate Sentence Review Board reconsidered Mr. Fletcher‘s sentences after this court accepted review. The Board set Mr. Fletcher‘s minimum sentences to run concurrently. At issue, then, according to the majority, is solely the impact of the maximum sentences. The majority finds that under former
The majority, however, does not fully address the implications of the Board‘s treatment of Mr. Fletcher‘s case. In resetting Mr. Fletcher‘s minimum sentences to run concurrently in light of the sentencing reform act, the Board found that his offenses constituted the “same criminal conduct.” Thus, under former
Former subsection (5)(a) applies to “[p]rior adult offenses which were found, under
Where a defendant has been sentenced for offenses that he committed before July 1, 1986, and also has had his minimum sentences refactored in light of the sentencing reform act, only one subsection of the offender score provision should apply. For a number of reasons, that provision should be former (5)(a). For one, this court follows the rule of statutory construction that avoids reading statutes so that one provision renders another meaningless. To do this, we read the statute as a whole and attempt to harmonize its provisions in relation to one another. See Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 509, 730 P.2d 1327 (1986); Hanson v. Tacoma, 105 Wn.2d 864, 871, 719 P.2d 104 (1986). Here, the words “for the purpose of computing the offender score” in former subsection (5)(c) imply that they address a situation in which the defendant‘s sentence has not been redetermined in light of the new law. Mr. Fletcher‘s sentence has been so redetermined. Thus, former (5)(c)‘s application is not relevant here.
More essentially, any ambiguity in former
Nonetheless, if a case presents issues of continuing and substantial public interest, then we may choose to hear it in spite of its mootness. LaBelle, 107 Wn.2d at 200; Dunner v. McLaughlin, 100 Wn.2d 832, 838, 676 P.2d 444 (1984). This is not such a case. The sentencing reform act effectively supplants the merger analysis at issue here. See
Despite the mootness of this case, the majority considers its issues—and does so incorrectly. In particular, the majority distorts the application of Vladovic‘s merger analysis.
In Vladovic, this court developed our present test for merger: two offenses will merge if proof of one requires proof of the other and if the second offense did not have independent purposes and effects. Vladovic, 99 Wn.2d at 419-21. The Vladovic majority, in dicta, specifically found that robbery could merge into kidnapping. Vladovic, at 421. Yet, today‘s majority disregards this earlier analysis through a misreading of the kidnapping statute.
The kidnapping statute at issue here states as follows:
(1) A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent:
(a) To hold him for ransom or reward, or as a shield or hostage; or
(b) To facilitate commission of any felony or flight thereafter; or
(c) To inflict bodily injury on him; or
(d) To inflict extreme mental distress on him or a third person; or
(e) To interfere with the performance of any governmental function.
The majority reads this language to mean that only proof of the intent to commit the enumerated acts is required to prove first degree kidnapping. This is probably true for every subsection except the one applicable here: subsection (b). The statute does not state “with intent to commit any felony,” it states, quite plainly, “with intent . . . [t]o facilitate commission of any felony or flight thereafter . . .” (Italics mine.)
In the present case, the Vladovic rule, properly applied, causes the robbery committed by Mr. Fletcher to merge into his kidnapping conviction. Because he kidnapped the women in order to steal their car, one cannot construe a purpose or effect independent from the common conduct of the two offenses. Proof of the robbery is required to show that the kidnapping facilitated the commission of a felony.
Under the Vladovic rule, then, the two offenses merge. As I developed in my dissent in that case, however, an additional reason compels us to recognize merger in this
This case is moot and the majority misapplies precedent in spite of it. For these reasons, I dissent.
PEARSON, J., concurs with UTTER, J.
Notes
“Kidnapping in the first degree. (1) A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent:
“(a) To hold him for ransom or reward, or as a shield or hostage; or
“(b) To facilitate commission of any felony or flight thereafter; or
“(c) To inflict bodily injury on him; or
“(d) To inflict extreme mental distress on him or a third person; or
“(e) To interfere with the performance of any governmental function.
“(2) Kidnapping in the first degree is a class A felony.”
“Prior adult offenses which were found, under
Former
“In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense. Use the conviction for the offense that yields the highest offender score.”