THE STATE OF WASHINGTON, Aрpellant, v. VERNELL TEYNAC HENNINGS, Respondent.
No. 49323-5
Supreme Court of Washington
October 6, 1983
100 Wn.2d 379 | 670 P.2d 256
En Banc.
UTTER, J., concurs with DOLLIVER, J.
Elizabeth K. Selleck of Washington Appellate Defender Association, for respondent.
BRACHTENBACH, J. — This case presents the issue whether the State may appeal a trial court dismissal of a habitual criminal charge when the dismissal is based upon insufficient evidence. Respondent argues that the double jeopardy clause prohibits the State from attempting again to prove that charge. We hold that the double jeopardy clause bars a second habitual criminal proceeding where the State initially fails to prove beyond a reasonable doubt the validity of each conviction necessary to establish habitual criminal status.
On October 1, 1981, the court, on the basis of stipulated facts, found Vernell Teynac Hennings guilty of five counts of robbery in the first degree while armed with a deadly weapon and one count of second degree robbery. The State subsequently filed a supplemental information charging Hennings with being a habitual criminal under
The 1974 guilty plea resulted from a December 14, 1973 armed robbery of the Mission Pharmacy. Hennings originally was charged with robbery while armed with a firearm, but an amended information deleted the firearms allegation. Hennings’ “Statement of Defendant on Plea of Guilty” includes the statement: “I held up the Mission Pharmacy and took money out of the cash register.” Clerk‘s Papers, at 37. The plea statement also set out the maximum sentence of 20 years to life and enumerated several rights of the defendant, but did not include any reference to Hennings’ privilege against self-incrimination.
At the habitual criminal hearing, the only other significant evidence before the judge was the testimony of Mr. Covell, Hennings’ attorney in the 1974 case. Covell testified that he had no independent recollection of either Hennings personally оr representing him in the 1974 case. The transcript does, however, contain the following statement by Covell:
I‘ve gone over [the guilty plea] form with Mr. Hennings, and I believe he fully understands all the matters included therein, and his change of plea on the basis of the indicated dismissals of the special findings is voluntarily and knowingly made.
Exhibit 11, at 2. He also testified that he would not have made this statement if it was not true. Moreover, Covell testified that it was his ordinary practice to advise his clients of the rights they were giving up before entering a guilty plea, and to review the guilty plea statements with his clients. Again, there was no mеntion of the privilege against self-incrimination, or even which of defendant‘s rights Covell usually discussed.
The court concluded the 1974 guilty plea was not knowingly and voluntarily entered because Hennings did not understand that by entering the plea he waived: the right
A habitual criminal proceeding under
The double jeopardy clause of the Fifth Amendment plainly provides that: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ...“.
The double jeopardy clause clearly prohibits the retrial of a defendant who has been acquitted of a crime charged. United States v. DiFrancesco, 449 U.S. 117, 129-30, 66 L. Ed. 2d 328, 101 S. Ct. 426 (1980).
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 78 S. Ct. 221, 6 A.L.R.2d 1119 (1957). The Burks Court characterized this same interest:
The Double Jeоpardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.
Burks, at 11. In general, the double jeopardy clause may implicate one or more of the following distinct values: (1) the integrity of jury verdicts of not guilty, (2) the lawful administration of prescribed sentences, and (3) the interest in repose. Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich. L. Rev. 1001, 1002 (1980).
Among the three values, the Court is most protective of the first because acquittals based upon insufficient evidence indicate that the State has failed to carry its burden. Burks, at 16. Cf. Tibbs v. Florida, 457 U.S. 31, 72 L. Ed. 2d 652, 102 S. Ct. 2211, 2217-18 (1982) (reversal because of
A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial.
Tibbs, at 41. Prior to the Burks decision, the courts did not extend double jeopardy analysis to cases in which the defendаnt obtained a reversal of his conviction on appeal. See, e.g., Bryan v. United States, 338 U.S. 552, 94 L. Ed. 335, 70 S. Ct. 317 (1950). In Burks, however, the Court found that a reversal on appeal based upon insufficiency of the evidence is tantamount to an acquittal, which bars retrial. Burks, at 16. Thus, at least in terms of failure to prove a crime the double jeopardy clause prohibits the State from making successive attempts to convict an individual.
The Court has been more reluctant to extend double jeopardy principles to sentencing proceedings. That reluctance was reflected in the Court‘s conclusion that defеndants who obtained a new trial for any reason could be retried and a harsher sentence could be imposed because the original conviction was nullified and “the slate wiped clean.” North Carolina v. Pearce, 395 U.S. 711, 721, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). That rule, however, was recently modified by the Court in Bullington v. Missouri, 451 U.S. 430, 443, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981).
Thus, the “clean slate” rationale recognized in Pearce is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case.
Bullington, at 443. This modification reiterates the importance of double jeopardy interests where the State fails to prove its case. Along with United States v. DiFrancesco, supra, the Bullington opinion now controls the analysis of double jeopardy principles in bifurcated sentencing pro-
Bullington v. Missouri, supra, involved a death penalty statute which required the prosecution to prove certain aggravating circumstances beyond a reasonable doubt in a separate penalty phase of trial. The statute also required a unanimous vote in order to impose the death penalty, which was not mandatory even if the aggravating circumstances were proved. The only alternative penalty, however, was life imprisonment with no possibility of parole for 50 years, which was also the mandatory penalty if the State failed to prove sufficient aggravating circumstances. In Bullington‘s case, the jury did not impose the death penalty. After he obtained a new trial on the grounds that women had been automatically exempted from jury service, Duren v. Missouri, 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979), the State notified him that it was again going to seek the death penalty. The lower courts, relying on Pearce, held that the double jeopardy clause did not prevent the State from seeking the harsher penalty upon retrial.
The United States Supreme Court relied on four features of the Missouri procedure to distinguish its previous decisions: the separate nature of the sentencing proceeding; the fact that specific aggravating circumstances had to be proved; the “beyond a reasonable doubt” proof standard; and the limited discretion given the jury. Bullington, at 438. The Court described these features of the sentencing procedure as “the hallmarks of the trial on guilt or innocence.” Bullington, at 439. The Court reasoned that in its prior cases, involving discretionary and essentially standardless sentencing statutes, it was not possible to determine whether the prosecution had failed to meet any burden of proof it may have had. Bullington, at 443-44. The Court also noted that by imposing the “beyond a reasonable doubt” proof requirement, the Legislature or courts had recognized that the risk of error was great. Bullington, at 441.
On this latter basis, the Bullington Court distinguished United States v. DiFrancesco, supra, which involved the
Respondent argues that Washington‘s habitual criminal procеdure is more similar to Missouri‘s death penalty procedure than to the federal “dangerous special offender” procedure. In habitual criminal proceedings, the State must prove the facts necessary to establish the habitual criminal status beyond a reasonable doubt. State v. Murdock, 91 Wn.2d 336, 588 P.2d 1143 (1979). Also,
A comparison of the DiFrancesco and Bullington
There is additional support for extending Bullington to state habitual criminal proceedings in a recent Fifth Circuit decision construing Texas statutes. Bullard v. Estelle, 665 F.2d 1347 (5th Cir.), cert. granted, 457 U.S. 1116, 73 L. Ed. 2d 1328, 102 S. Ct. 2927 (1982).1 In Bullard the defendant filed a habeas corpus petition challenging a state court conviction on a habitual criminal charge. Under Texas statutes, the State must prove in a separate trial that the defendant committed the prior felony offenses. Bullard, at 1357. Also, the twо prior convictions must be alleged in the indictment, the allegations are treated as substantive elements of the offense, and the State must establish those elements beyond a reasonable doubt. Bullard, at 1358.
After the Bullard decision, the Texas courts adopted a similar analysis in regard to their habitual criminal proceedings. Cooper v. State, 631 S.W.2d 508 (Tex. Crim. App. 1982). The Texas court found that the State had failed to prove which crime resulted in a 1968 conviction they were attempting to use to establish the habitual criminal charge. Cooper, at 512. The court noted that its old rule allowed remand for a new trial in which the State had another “attempt to meet its burden of proof as to the enhancements in the punishment portion of the trial.” Cooper, at 512-13 (citing Porier v. State, 591 S.W.2d 482 (Tex. Crim. App. 1979)). The court, however, overruled Porier and reasoned that Bullard and Bullington preclude successive attempts by the State to satisfy its burden of proof. Cooper, at 513. In particular:
To allow the State to attempt at a new hearing to producе the proof that it could not produce at the initial hearing is to again subject the defendant to jeopardy. Bullington tells us that the Double Jeopardy Clause can apply to punishments when the punishment depends on
whether the State has proved or failed to prove specific punishment allegations. When the punishment does depend on such allegations and the State fails to prove them initially, the State may not attempt to make the defendant endure a relitigation of the issue.
Against these cases, this court must reconsider the validity of State v. Braithwaite, 92 Wn.2d 624, 600 P.2d 1260 (1979), where this court held that: “habitual criminаl proceedings do not place a defendant in jeopardy.” Braithwaite, at 626. In Braithwaite, the defendant was originally found not to be a habitual criminal. The Court of Appeals reversed and remanded. This court affirmed, rejected Braithwaite‘s contention that the double jeopardy clause barred relitigation of the habitual criminal charge. The majority relied on numerous cases in which this court held that because “habitual criminal” is a status rather than a crime, the double jeopardy clause is inapplicable. See, e.g., State v. Gilcrist, 91 Wn.2d 603, 590 P.2d 809 (1979). For several reasons, the Braithwaite standard does not appear valid in light of Bullington and Bullard. The Bullington Court applied the double jeopardy clause to a sentencing procedure rather than a criminal trial which seems to eliminate the status distinction. By foсusing on the nature of the proceeding, both the Supreme Court and the Fifth Circuit emphasize that it is not the labels placed upon those proceedings that is important, but the opportunity the State had to present its evidence against the defendant. Like Texas, Washington‘s prior convictions in a habitual criminal proceeding must be alleged in the information and are treated as substantive elements. State v. Murdock, 91 Wn.2d 336, 340-41, 588 P.2d 1143 (1979). Those elements are presented at a separate proceeding, and the State must prove the elements beyond a reasonable doubt. State v. Holsworth, 93 Wn.2d 148, 607 P.2d 845 (1980).
In reaching our decision, several factors compel the conclusion that double jeopardy analysis applies to Washington‘s habitual criminal proceedings. First, the Supreme
Accordingly, we hold that if the State fails to produce sufficient evidence to establish habitual criminal status, then the double jeopardy clause prohibits a second hearing to produce additional evidence.2
WILLIAMS, C.J., and STAFFORD, UTTER, DOLLIVER, DORE, and PEARSON, JJ., concur.
ROSELLINI, J. (dissenting) — While I agree with the analysis of the majority that the double jeopardy clause bars a second habitual criminal proceeding where the dismissal of the charge is based on insufficient evidence, I would hold that the State presented sufficient evidence to support the habitual criminal charge.
I would so hold on the ground that a defendant in a habitual criminal proceeding should bear the burden of proof in challenging the validity of a guilty plea underlying a prior conviction, where such conviction was entered prior
The law concerning habitual criminal proceedings prior to our decision in Holsworth was to the еffect that prior convictions in a habitual criminal proceedings are proved by introducing copies of the original judgment and sentence bearing the seal of the judge who heard the case, annexed to the original attestation by the officer in charge, and that the prosecutor‘s burden is to prove that a defendant was duly convicted in a court of competent jurisdiction, presided over by a qualified judge. State v. Murdock, 91 Wn.2d 336, 588 P.2d 1143 (1979). See also State v. Williams, 98 Wn.2d 428, 432, 656 P.2d 477 (1982).
In Holsworth we held that once a defendant in a habitual criminal proceeding challenges the validity of a former guilty plea relied upon by the State to prоve his habitual criminal status, the State has the burden of proving beyond a reasonable doubt that, prior to entering the guilty plea, the defendant has been apprised of the nature of the offense and the consequences of his plea. Extrinsic evidence regarding the voluntariness of the guilty plea may be considered for any guilty plea entered before September 1976, the date of Wood v. Morris, 87 Wn.2d 501, 554 P.2d 1032 (1976). Wood held that after 1976, the record of the plea hearing must show on its face that the plea was entered voluntarily and intelligently.
The Holsworth holding was based largely on what we considered necessary tо comply with the mandate of Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). Boykin established the rule that a pleading defendant must be apprised of the nature of the offense and the consequences of pleading guilty in order for the plea to be accepted as knowing, intelligent, and voluntary. Boykin, at 243-44.
Although Boykin has not generally been applied retroactively, Holsworth applied Boykin retroactively to the extent that a defendant in a habitual criminal proceeding is enti-
Thus, our decision in Holsworth, while it relied upon some established principles concerning the guilty pleas, effected an abrupt change in the law with respect to procedures in habitual criminal proceedings. The burden upon the prosecutor was significantly increased as a result of that opinion. Also, prior to that decision, attacks on judgments offered in evidence in such proceedings reasonably could have been regarded as collateral attacks, wherein the party attacking must overcome the presumption of validity which ordinarily attaches to judgments. See Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). It is evident that the lower courts, as well as prosecutors, have understandably relied upon that presumption of validity.
(Footnote omitted.) State v. Williams, supra at 432-33.
The burden is on the State to prove each element of a habitual criminal status beyond a reasonable doubt. State v. Murdock, supra at 340-41. To establish status as habitual criminal, the elements the State must prove are (1) prior judgments of conviction and (2) that person named therein is the same person on trial. State v. Kelly, 52 Wn.2d 676, 328 P.2d 362 (1958); State v. Harkness, 1 Wn.2d 530, 96 P.2d 460 (1939). Accordingly, the State has met its burden of proof when it proves beyond a reasonable doubt a prior judgment of conviction and that the person named therein is the same рerson on trial. Introduction of copies of the original judgment and sentence hearing, the seal of the judge who heard the case, annexed to the original attestation by the officer in charge satisfies this burden of proof. Murdock, at 341. The judgment is then entitled to a presumption of validity. See Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1938). An attack on a guilty plea that underlies the judgment of
There is no constitutional requirement that the State prove the validity of a guilty plea underlying a prior conviction. To require such is to transform the habitual criminal proceeding into a trial-within-a-trial. Holsworth could rationally be extended to require the State to demonstrate the constitutional validity of outstanding convictions by proof beyond a reasonable doubt when thе defendant challenges any alleged unconstitutional error underlying the conviction. See State v. Serr, 35 Wn. App. 5, 664 P.2d 1301 (1983).
I would hold that once the State has proved the conviction under the guidelines set forth in Murdock, there is a presumption of validity of any underlying guilty plea entered prior to 1976. A defendant‘s challenge to a pre-1976 plea of guilty should be viewed as a collateral attack on the judgment. The defendant carries the burden of proving that the pre-1976 conviction was obtained in violation of Boykin. Similar holdings are found in State v. Holden, 375 So. 2d 1372 (La. 1979); Williams v. State, Ind., 431 N.E.2d 793 (1982); State v. Adamson, 197 Kan. 486, 419 P.2d 860 (1966).
In the subject case the State met its burden of proof when it proved beyond a reasonable doubt thе prior 1974 judgment conviction for robbery and that Hennings was the person convicted of such robbery. Defendant Hennings did not meet his burden of proof in his collateral attack on the 1974 judgment. In addition, there is no allegation that he
In addition, I would hold that a defendant in a habitual criminal proceeding is prohibited from challenging the validity of a prior conviction based on a guilty plea, where such plea was entered pursuant to а plea bargain resulting in some benefit to the defendant.
The challenged 1974 guilty plea resulted from a December 14, 1973, armed robbery of the Mission Pharmacy. Hennings originally was charged with robbery while armed with a firearm, but due to a plea bargain arrangement in exchange for the guilty plea an amended information deleted the firearms allegation. Because of the deletion of the special firearms charge, Hennings avoided a mandatory 5-year minimum sentence.
In State v. Majors, 94 Wn.2d 354, 356-57, 616 P.2d 1237 (1980), this court noted that a guilty plea entered pursuant to a negotiated plea agreement presents а different situation from the rule that a guilty plea does not preclude a defendant from raising questions concerning the circumstances in which a plea was made.
Plea bargaining is a procedural device in which the prosecution promises to dismiss other pending charges, or to make charge reductions, or to make certain recommendations in exchange for the defendant‘s promise to plead guilty. The plea bargain generally insures the prosecutor a conviction and enables the defendant to obtain a lighter sentence. See generally Alschuler, The Prosecutor‘s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50 (1968); Bishop, Rights and Responsibilities of the Defendant Pleading Guilty, 49 J. Urb. L. 1 (1971); Tarnow, Criminal Law and Procedure, 19 Wayne L. Rev. 437 (1973); Comment, Profile of a Guilty Plea: A Proposed Trial Court Procedure for Accepting Guilty Pleas, 17 Wayne L. Rev. 1195 (1971); Note, Guilty Plea Bargaining: Compromise by Prosecutors
In Bordenkircher v. Hayes, 434 U.S. 357, 363-64, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978), the United States Supreme Court observed:
Plea bargaining flows from “the mutuality of advantage” to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have beеn induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant‘s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” — and permissible — “attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” Chaffin v. Stynchcombe, [412 U.S. 17, 31, 36 L. Ed. 2d 714, 93 S. Ct. 1977 (1973)]. It follows that, by tolerating and encouraging the negotiatiоn of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor‘s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.
(Citations omitted. Italics mine.)
Hayes serves as strong support for prohibiting a habitual criminal defendant from challenging a prior guilty plea
We should not permit a dеfendant to obtain the benefits of a plea bargaining agreement and then subsequently challenge such agreement and obtain the benefit of avoiding habitual criminal status.
DIMMICK, J., concurs with ROSELLINI, J.
BRACHTENBACH, J.