Lemon v. StateLemon v. State
- Reporters:
- ,
- Before:
- Singleton
OPINION
SINGLETON, Judge.
Olivеr Floyd Lemon was arrested on February 6, 1972, in Barrow, Alaska for the crime of burglary not in a dwelling, former
After reversal of the burglary conviction, but prior to a supreme court decision on the escape charge, the parties entered into plea negotiations. Ultimately, an agreement was reached including both a plea and a sentence bargain. Under the agreement, Lemon would drop his appeal of the escape conviction, would not appeal the hаbitual criminal conviction and would agree to a twenty-five year sentence as a habitual criminal. The state, in turn, would dismiss the burglary indictment, agree to a concurrent escape sentence, and not rеtry defendant for burglary after the supreme court reversal.
See Lemon v. State,
514 P.2d 1151 (Alaska 1973). The trial court accepted the bargain and imposed sentence accordingly. While defendant was not able to head off a decision on the escape conviction,
see Lemon
v.
State,
522 P.2d 160 (Alaska 1974), the state did dismiss the burglary indictment. Thereafter, Lemon began serving his sentence, and in 1979 petitioned the superior court for a writ of habe-as corpus. He сhallenged his conviction,
inter alia,
on the ground that imposition of a twenty-five year sentence as a habitual criminal in place of a previously imposed two-year sentence for escape, where escape was the target crime triggering the habitual criminal prosecution, violated his right under the federal and state constitutions
1
not to be twice put in jeopardy.
See State v. Carlson,
560 P.2d 26 (Alaska 1977) and
Sonnier v. State,
483 P.2d 1003 (Alaska 1971).
2
We will treat this petition as an
The state concedes that the procedure followed in this casе violates Carlson and Sonnier, but argues that Lemon voluntarily, knowingly, and intelligently waived his right to raise double jeopardy contentions by entering into a sentence agreement providing for a twenty-five year sentence with full knowledge of his rights under the double jeopardy clauses of the federal and state constitutions. 3 This argument was not made to the trial court. Waiver is a mixed question of fact and law. Nevertheless, the state contends that the mаterial facts are undisputed and that the question may therefore be decided on appeal as a pure question of law. We thus face two questions: (1) may a defendant, consistent with our state and federal constitutions, “waive” a double jeopardy claim based on Carlson and Sonnier and (2) if so, could reasonable people differ that Lemon did do so. In addressing these questions, it is necessary to distinguish three separate but related concepts. First, waiver: the intentional relinquishment of a known right. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). Second, forfeiture: the loss of a right through failure to assert it or through actions, such as a plea of guilty, inconsistent with its assertion. See Westen, Away From Waiver: A Rаtionale For The Forfeiture of Constitutional Rights In Criminal Procedure, 75 Mich.L.Rev. 1214 (1977). Third, estoppel: the principle that where a party by his representation or his conduct induces another party to detrimentally rely on the representation, he is thereafter precluded from acting inconsistently with the promise or representation. See Groseth v. Ness, 421 P.2d 624, 630 (Alaska 1966). 4
Prior to Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), it was generally assumed that questions of double jeopardy were forfeited unless raised at trial. See 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 193, at 705-06 (1982). Generally, nonjurisdic-tional defenses are forfeited by a plea of guilty, see Cooksey v. State, 524 P.2d 1251, 1255 (Alaska 1974), but so-called jurisdictional defenses cannot be forfeited, see Gray v. State, 525 P.2d 524, 527 (Alaska 1974). The general rule has been that claims of double jeopardy are nonjurisdic-tional. See State v. Owens, 127 Ariz. 252, 619 P.2d 761, 762 (App.1980).
In
Menna v. New York,
423 U.S. at 62 n. 2, 96 S.Ct. at 242 n. 2, 46 L.Ed.2d at 197 n. 2. the court held “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.” Double jeopardy was determined to fall within this category of claims. The court did point out that under some circumstances double jeopardy claims can be waived.
Id.
In
Launius v. United States,
575 F.2d
With this background we can proceed to the questions posed by Lemon’s application. We hold that a claim based upon double jeopardy in reliance on our state constitution can be waived, but is not forfeited, by a guilty plea; even a guilty plea that is part of a negotiated settlement. We note that Lemon entered into a sentence bargain, as well as a plea bargain. At the time he did so, his claim that a sentence imposed on the escape charge precluded use of that charge as a trigger for the enhanced penalties availablе against habitual offenders was pending in the supreme court. In his March 23, 1973, opening brief Lemon summarized his argument as follows:
This court has held that once a sentence has been meaningfully imposed, a defendant’s сonstitutional protection against double jeopardy is violated when the trial court brings the defendant back into court and increases the sentence. In this case, appellant had been meaningfully sеntenced on July 13, 1972, for his most recent felony conviction. Any attempt to impose an additional sentence after that time constituted double jeopardy and was invalid.
In the body of his brief, defendant cites
Sonnier v. State,
483 P.2d 1003, 1005 (Alaska 1971) for this proposition, thus anticiрating the holding in
State v. Carlson,
560 P.2d 26, 30-31 (Alaska 1977), the very case he relies upon in this court. Counsel discussed the
Sonnier
problem in Lemon’s presence at the time of the initial sentencing for escape. The trial judge personally questionеd Lemon at the time he agreed to waive his appeals.
5
However, the trial judge did not personally question Lemon about double jeopardy. Based on this record, we find that reasonable persons сould differ on the question of whether the waiver requirements specified by
Menna
and
Launius,
which we have adopted, have been met. Consequently, we may not decide the issue as a pure question of law.
See
The decision of the superior court is VACATED and this case REMANDED for further proceedings consistent with this decision. 7
Notes
.
. Lemon presents two other claims:
(1) Lemon argues that two of the convictions which the court relied upon in sentencing him as a habitual criminal occurred prior to enactment of the habitual criminal statute so that using them to enhance his sentence violated state and federal constitutional prohibitions against ex post facto laws and placing a defendant twice in jeopardy. This precise claim was rejected by the United States Supreme Court in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948). Similar claims were rejected by our supreme court in Danks v. State, 619 P.2d 720 (Alaska 1980) and by this court in Carter v. State, 625 P.2d 313, 315 (Alaska App.1981). We And no error.(2) Lemon argues that a twenty-five yеar sentence amounts to cruel and unusual punishment in violation of the federal constitution. This claim is foreclosed by Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). He does not expressly rely on Alaska Const, art. 1, § 12 , but we feel his argument should be considered under the state standard.
We cannot say that the sentence imposed was so completely arbitrary and shocking to our sense of justice that it amounted to cruel and unusual punishment. See, e.g., Davis v. State, 566 P.2d 640, 643-44 (Alaska 1977). Lemon was a multiple offender who clearly had not been rehabilitated despite many opportunities. Given the state’s dismissal of the burglary charge and the concurrent escape sentence, we cannot say that the sentence violated constitutional norms. Wе note that an application for post-conviction relief or habeas corpus is not a proper, vehicle for obtaining sentence review pursuant toAS 12.55.120 . But cf. Davis v. State, 566 P.2d 640 (Alaska 1977) (court noted might be possible to seek relief from superior court under CriminalRule 35(b) and 39(b)(2)).
. While Lemon relies upon both the state and federal constitutions, it appears he has no federal claim. See Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). The federal courts apparently approve the procedure rejected in Carlson-Sonnier.
. In his article, Westen does not refer to the doctrine of equittable estoppel by name, but it is clear that he considers it a necessary ingredient of an еffective waiver of constitutional rights. See Westen, supra, at 1261.
. Defendant, through counsel, made a number of motions to dismiss the habitual offender proceeding on the basis of the issue presented here prior to the plea agreement in question. Counsel raised the issue in Lemon’s presence at the trial on the habitual offender claim. Additionally, Lemon signed a written affidavit in support of his motion to dismiss the escape appeal.
. An express written or oral statement of waiver [of Miranda rights] is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived [his Miranda rights]. The courts must presume
that a defendаnt did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.
Butler, 441 U.S. at 373, 99 S.Ct. at 1757, 60 L.Ed.2d at 292 (footnote omitted). We would apрly the same test to waiver of other constitutional rights.
.The parties should be permitted a reasonable opportunity to supplement the record on remand. Our decision would not bar summary disposition of this case if in light of the expanded record one party was entitled to judgment as a matter of law.