Stevenson v. StateStevenson v. State
- Reporters:
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- Before:
- Burnett
Lead Opinion
This Cоurt granted certiorari to review the denial of petitioner’s application for post-conviction relief (PCR). We affirm.
FACTS
Petitioner was indicted on two counts of assault and battery with intent to kill (ABIK) and two counts of resisting arrest under
Petitioner then filed an application for PCR alleging his convictions and sentences for both resisting arrest and ABHAN constitute a violation of the Double Jеopardy Clause of the Fifth Amendment of the United States Constitution and a violation of
DISCUSSION
Petitioner contends, because his convictions and sentences for both resisting arrest under
There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisiоns in the case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). In order to prove that counsel was ineffective, the applicant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.
The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal or conviction, and protects against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997). In Blockburger v. United States,3 the United States Supreme Court held where the same act or transaction constitutes a violation of two distinct statutory provisions, “the test to determine whether these аre two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”4 284 U.S. at 304, 52 S.Ct. at 182. The Blockburger “same elements” test is the only remaining test for determining a double jeopardy violation in bоth multiple punishment and successive prosecution cases. State v. Easier, supra. In addition to application of the Blockburger test, a court must also consider whether one offense is a lesser included offense of the other. If the lesser offense requires no proof beyond that required for the greater offense, the two are the same offense for purposes of the Double Jeopardy Clause. Brown v. Ohio, supra.
Under Hollman, petitioner’s convictiоns for resisting arrest and ABHAN constitute a violation of the Double Jeopardy Clause. In this case, like Hollman, the assault was inseparable from the resistance of arrest. Both officers testified petitioner was sitting on a couch whеn he was placed under arrest. As one officer grabbed petitioner’s left arm and attempted to handcuff him, petitioner rose from the couch. The other officer grabbed petitioner’s right arm and they all fell over а coffee table. During this struggle, petitioner managed to get one of the officer’s guns and fire four shots. One officer stated he heard the gun shots as they were falling. Petitioner shot one officer in the knee and the other in the сhest. Fortunately, this officer was wearing a bulletproof vest. Petitioner also shot himself.
However, because the Hollman court applied the incorrect analysis, we expressly overrule its holding. Instead, under the Blockburger “same elements” test, convictions for both ABHAN аnd resisting arrest do not constitute a double jeopardy violation.
ABHAN requires proof of a circumstance of aggravation which is not required for resisting arrest. Resisting arrest requires proof that the person assaulted is a law enforcement officer which is not an element of ABHAN. Accordingly, because each requires proof of an element the other does not, neither is a lesser included offense of the other and the double jeopardy clause is not violated by convicting a defеndant of both offenses.
Petitioner contends this Court should insert the circumstance of aggravation relied on to support the ABHAN conviction when comparing the elements of ABHAN with another offense. Therefore, where, as in this case, the circumstance of aggravation supporting the ABHAN is resisting lawful authority, the prohibition against double jeopardy is violated. However, contrary to petitioner’s argument, in State v. Easler, the Court rejected a similar argument сoncerning ABHAN, where the circumstance of aggravation was serious bodily injury and felony driving under the influence causing great bodily injury. The Court stated that a lesser offense is included in the greater only if each of its elements is always а necessary element of the greater offense. Accordingly, although serious bodily injury is an aggravating circumstance, it
Moreover, in this case, the trial judge’s instructions included other possible aggravating circumstances, including use of a deadly weapon and infliction of serious bodily injury. Thus, the jury could have based its ABHAN convictions on these aggravating circumstances. Neither of these aggravating circumstances would create a double jeopardy violation.
We conclude the PCR judge properly found there was no double jeopardy violation and trial counsel was not ineffective. Accordingly, we affirm the denial of petitioner’s PCR application.
AFFIRMED.
TOAL, MOORE, and WALLER, JJ., concur. FINNEY, C.J., dissenting in separate opinion.Notes
. Petitioner did not raise this issue on review.
. The PCR judge analyzed the double jeоpardy claim by comparing the elements of resisting arrest and ABIK because petitioner was indicted for these offenses. However, petitioner was actually convicted of ABHAN and resisting arrest. Therefore, these are the two offenses that should have been compared.
. 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
. Notwithstanding Blockburger a court may conclude there is no double jeopardy violation even if the “same elements” test is met where the legislature clearly intends multiple punishmеnts for a single act. See Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); State v. Wilson, 311 S.C. 382, 429 S.E.2d 453 (1993).
. Other jurisdictions have stated when applying the “same elements” test, the focus should be on the elements of the offenses and not on their application to the facts of a specific case. State v. Cook, 185 Ariz. 358, 916 P.2d 1074 (Ct.App.1995) (the court should focus on the elements of the offenses); State v. Ford, 33 Conn.App. 143, 634 A.2d 1188 (1993) (a court should compare the statutory elements, not the actual evidence produced at trial); State v. Henriquez, 485 So.2d 414 (Fla.1986) (offenses are separate, if a comparison of the elements, without regard to the facts alleged in the information or adduced at trial, reveals that each offense requires proof of an element that the other does not).
. Circumstances of aggravation include the use of a deadly weapon, the infliction of serious bodily injury, the intent to commit a felony, a great disparity between the ages and physical conditions of the parties,- a difference in the sеxes, indecent liberties or familiarities with a female, the purposeful infliction of shame and disgrace, resistance of lawful authority, and others. State v. Easler, supra; State v. Jones, 133 S.C. 167, 130 S.E. 747 (1925), overruled in part on other grounds, State v. Foust, 325 S.C. 12, 479 S.E.2d 50 (1996).
Dissenting Opinion
I respectfully dissent. The majority concludes that the PCR judge properly found there was no double jeopardy violation and trial counsel was not ineffective. I disagree.
Petitioner was convicted of two counts of assault and battery of a high and aggravated nature (ABHAN) and two counts of resisting arrest. Petitioner was sentenced to imprisonment for ten years on each count, to be served consecutively. Petitioner committed the offenses on April 04, 1993 and was sentenced June 02,1994.
Petitioner contends that under State v. Hollman, 232 S.C. 489, 102 S.E.2d 873 (1958) his convictions for ABHAN and resisting arrest violatе the prohibition against multiple punishments under the Double Jeopardy Clause. I agree. The facts in Hollman are very similar to the facts in this case.
In Hollman, the appellant was indicted for two counts of resisting an officer and assault and battery with intent to kill. The jury found the appellant guilty of resisting an officer and guilty of assault and battery of a high and aggravated nature.
Petitioner was convicted of the same offenses as the appellant in Hollman. The majority acknowledges in its opinion that the assault was inseparable from the resistance of arrest. However, the majority applies the Blockburger “same elements” test, and concludes that ABHAN and resisting arrest do not constitute a double jeopardy violation.
The majority relies on State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997) to expressly overrule Hollman. However, the majority disregards and ignores the fact that at the time of Petitioner’s trial in 1994, State v. Easler had not been decided by this Court. Justice requires that this case be remanded for resentencing consistent with Hollman.
During the PCR hearing, trial counsel admitted he never considered whether “resistanсe of unlawful [sic] authority” was included as an element of ABHAN. In my opinion, the PCR judge erred in failing to find trial counsel’s representation defective for not objecting to the sentence under Hollman. Petitioner was clearly prejudiced because he received four sentences instead of two. I would therefore find counsel ineffective.