Jeffrey Carpenter v. Walt Chapleau

72 F.3d 1269

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 20, 1996
• Docket: 94-6240
• Status: Published

Opinions

RYAN, J., delivered the opinion of the court, in which BATCHELDER, J., joined. MOORE, J. (pp. 1274-1278), delivered a separate dissenting opinion.

RYAN, Circuit Judge.

Walt Chapleau, the warden of a Kentucky State Correctional Institution, appeals the judgment of the district court granting a writ of habeas corpus to the petitioner, Jeffrey Carpenter, on the grounds that the enhancement of Carpenter’s state court sentence as a first degree persistent felony offender, following a previous sentence enhancement for second degree persistent felony offender, violated the Double Jeopardy Clause of the United States Constitution as applicable to the state’s through the Fourteenth Amendment.

We conclude that the court erred, and therefore reverse.

I.

In February 1990, there was a security problem, to put it mildly, at the Logan County Jail in Kentucky. Carpenter was then an inmate at the jail. He and a fellow inmate, Kevin Whittaker, escaped from the jail through a hole in the ceiling and later returned to the jail with two cases of beer. After Carpenter, Whittaker, and several other inmates finished the beer, Carpenter again left the jail, obtained more beer, and returned a second time. Still on the same day, Carpenter and Whittaker escaped from the jail again. During this third escapade, the two ransacked the Sheriffs Office and evidence room, took some evidence and weapons, and set the Sheriffs Office on fire. Logan County police apprehended Carpenter in the attic of the jail where he was found surrounded by drugs, firearms, and other contraband.

Carpenter was indicted by the Logan County grand jury on seven counts: (1) burglary in the first degree; (2) arson in the third degree; (3) tampering with physical evidence; (4) escape in the second degree; (5) possession of a handgun by a convicted felon; (6) promoting contraband in the first degree; and (7) persistent felony offender in the first degree. At the request of one of Carpenter’s codefendants, the possession of a handgun by a convicted felon charge was severed, to be tried separately.

At the first state trial in October 1990, a jury convicted Carpenter of: (1) burglary in the first degree; (2) arson in the third degree; (3) tampering with physical evidence; (4) escape in the second degree; and (5) promoting contraband in the first degree. In support of its effort to enhance Carpenter’s sentence for being a persistent felony offender, Ky.Rev.Stat.Ann. § 532.080, the state introduced evidence that Carpenter had been convicted of four prior felonies. Under Kentucky law, proof of two or more prior felony convictions permits a jury to find that the defendant is a persistent felony offender in the first degree (PFO I). The evidence of four prior felony convictions notwithstanding, Carpenter’s jury convicted him of two counts of persistent felony offender in the second degree (PFO II), which requires proof of only one prior felony conviction. One count was used to enhance Carpenter’s sentence for the tampering with evidence charge, and the other, to enhance his sentence for promoting contraband. The evidence-tampering and promoting-contraband sentences were each enhanced to five years.

Carpenter was later brought to trial for the felon in possession of a firearm charge, which had been severed from the charges tried in the first ease. He was convicted. To enhance the firearm offense sentence, the state sought to convict Carpenter of being a PFO I by introducing evidence of three of the same prior felony convictions of which it introduced evidence in the first trial. The jury convicted Carpenter of PFO I and his sentence was enhanced to ten years.

Carpenter appealed to the Kentucky Supreme Court. He claimed that his protection against double jeopardy was violated when the jury in the firearm offense case convicted him of PFO I after the jury in the first trial refused to convict him as a PFO I, convicting him instead of PFO II. The court rejected Carpenter’s argument and affirmed his convictions and sentences. He then filed a petition for habeas corpus in the United States District Court for the Western District of Kentucky, raising several issues in addition to the double jeopardy claim he raised and lost in the Kentucky Supreme Court. A magistrate judge recommended that the petition be granted, in part, because, the magistrate judge found, the petitioner’s PFO I conviction, imposed following the second trial, violated his right to be free from double jeopardy. The district court adopted the magistrate judge’s recommendation. The district court believed that the magistrate judge “persuasively reasoned [that] ‘once a persistent felony offender conviction has been obtained, in whatever degree, that degree of persistent felony offender, and no other, may be applied to all charges in the indictment for enhancement purposes.’ ” The district court added that “the facts of this case — -a bifurcated trial on the count charging Petitioner as a felon in possession of a handgun — run afoul of the double jeopardy prohibition against, in the Supreme Court’s words, ‘affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” (Quoting Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978).) Accordingly, the district court issued a writ of habeas corpus and ruled that “Petitioner can only be found a persistent felony offender in the second degree and should be resen-tenced accordingly.”

II.

Warden Chapleau contends that the district court erred, arguing that persistent felony offender is a status, not an offense, and is therefore not subject to the bar against double jeopardy.

Carpenter responds that he was indeed twice placed in jeopardy because he was subjected a second time to a first degree persistent felony offender trial when the state failed to present sufficient evidence of that status in the first trial. Carpenter claims that the first jury’s PFO II determination was an implicit acquittal of PFO I status. Thus, Carpenter argues, he could not be “retried” on a first degree persistent felony offender charge. This is especially true, he contends, because the determination of persistent felony offender status is a “trial-like” procedure in which the state is required to prove each element of persistent felony offender status beyond a reasonable doubt.

III.

In an appeal involving a habeas corpus petition, this court renders de novo review of a district court’s conclusions of law and mixed questions of law and fact. O’Hara v. Wigginton, 24 F.3d 823, 827 (6th Cir.1994).

IV.

The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. It is well settled, however, that sentence enhancement provisions do not subject a defendant to multiple punishments for the same offense. Witte v. United States, —— U.S. -, -, 115 S.Ct. 2199, 2206, 132 L.Ed.2d 351 (1995) (citing Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258-59, 92 L.Ed. 1683 (1948)). We have held on a number of occasions that a habitual offender sentence does not violate the Double Jeopardy Clause. See, e.g., United States v. Ilacqua, 562 F.2d 399, 404 (6th Cir.1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497, and cert. denied, 435 U.S. 917, 98 S.Ct. 1473, 55 L.Ed.2d 508, and cert. denied, 435 U.S. 947, 98 S.Ct. 1532, 55 L.Ed.2d 545 (1978).

We have also held that a state may use the same predicate offenses to enhance a defendant’s sentence on more than one occasion without running afoul of the Double Jeopardy Clause. In 1980, we addressed Kentucky’s habitual offender law, Ky.Rev.Stat. Ann. § 431.190, repealed by section 532.080 (1975), which is the predecessor to the provision applied in this case. In Montgomery v. Bordenkircher, 620 F.2d 127 (6th Cir.), cert. denied, 449 U.S. 857, 101 S.Ct. 155, 66 L.Ed.2d 71 (1980), the defendant was convicted in a Kentucky state court of one count of armed robbery and one count of habitual criminality under section 431.190. These convictions took place in 1975. The state used three previous convictions as grounds for the habitual criminal charge: a 1950 conviction for robbery, a 1954 conviction for assault with the intent to rob, and an armed assault and habitual criminality conviction in 1964. Id. at 128. The defendant exhausted his state remedies and petitioned for habeas corpus relief, arguing that his right to be free from double jeopardy was violated when the prior felony convictions were used to enhance his sentence. This court held:

It is clear that the habitual criminal statute does not establish an independent criminal offense. Rather, it defines a status and thereby serves to enhance punishment for a crime committed by a person who is a habitual criminal. Because the habitual criminal statute defines a status and not a separate offense, the double jeopardy prohibition is inapplicable.

Id. at 129 (citations omitted). This court therefore denied the defendant’s petition.

Section 431.090, which was then applicable, provided:

Any person convicted a second time of felony shall be confined in the penitentiary not less than double the time of the sentence under the first conviction; if convicted a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty unless the jury finds, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.

The new statute, under which Carpenter’s sentences were enhanced, section 532.080, eliminates the mandatory sentences set out in section 431.090, and provides instead that the severity of the authorized sentence enhancement depends upon the class of the underlying felony. Ky.Rev.Stat.Ann. § 532.080(6)(b). The new statute is premised on the policy that all persistent felony offenders should be punished more severely, but that not all persistent felony offenders deserve the same level of severity. Ky.Rev. Stat.Ann. § 532.080, comment.

The Kentucky Supreme Court has held that double jeopardy does not attach to persistent felony offender proceedings under section 532.080. In White v. Commonwealth, 770 S.W.2d 222 (Ky.1989), the defendant was convicted in a Kentucky state court of burglary and criminal mischief and his sentence was enhanced for being a PFO I. The Kentucky Court of Appeals reversed the PFO I conviction, ruling that the two prior felonies used to enhance the defendant’s sentence constitute only one prior felony under section 532.080. The court of appeals remanded the case to the trial judge to sentence the defendant as a PFO II. Id. at 223. The defendant appealed and argued to the Kentucky Supreme Court that resentencing for PFO II was barred by the Double Jeopardy Clause. The Kentucky Supreme Court disagreed, stating:

A PFO trial does not involve an independent criminal offense but rather a status which enhances punishment for a crime committed by a person who is an habitual criminal....

Conviction as a Persistent Felony Offender is not a charge of an independent criminal offense but rather a particular criminal status. Consequently double jeopardy does not attach. Persistent Felony Offender proceedings involve the status of the offender and the length of the punishment, not a separate or independent criminal offense.

Id. at 223-24.

The reasoning and the rule announced in Montgomery v. Bordenkircher, to the effect that the Double Jeopardy Clause does not apply to sentence enhancement, controls this case.¹ Although Bordenkircher involved the predecessor to the statute at issue in this ease, the essential purpose of the statute has not changed and the reasoning in Borden-kircher is equally applicable to the current statute. It remains true that section 532.080 does not establish an independent criminal offense; it merely defines a status and serves to enhance punishment for a crime committed by a person who is a habitual criminal.

y.

Carpenter also argues that under the Supreme Court’s decision in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the state was foreclosed from submitting PFO I to a jury a second time. Bullington was the first occasion in which the Supreme Court retreated a bit from its general rule that the Double Jeopardy Clause does not apply to the sentencing phase of a criminal trial. In Bullington, the Court held that the death penalty may not be imposed on a defendant upon reconviction, after an initial conviction in which the death penalty was rejected is set aside on appeal. Id. at 446-47, 101 S.Ct. at 1862-63. The Court held that the Double Jeopardy Clause applied because the death penalty sentencing proceeding under Missouri law was much like a trial on the issue of guilt or innocence. The Court identified several characteristics of Missouri’s sentencing proceedings that made it comparable to a trial: (1) the discretion of the jury was restricted to only two options, death or life imprisonment; (2) the jury made its decision guided by substantive standards and based on evidence introduced in a formal, separate proceeding that resembles a trial; and (3) the state had to prove certain statutorily defined facts beyond a reasonable doubt in order to impose the death penalty. Id. at 438, 101 S.Ct. at 1857-58. The Court concluded that when a jury imposes a life sentence, it has determined that the state has failed to prove its case, and therefore that the jury has rendered an implied acquittal of the death sentence. Id. at 445, 101 S.Ct. at 1861-62. The Court also believed that the anxiety and ordeal suffered by a defendant in a capital sentencing proceeding is equal to the anxiety and ordeal suffered during a trial on the issue of guilt. Id. These principles were reaffirmed three years later in Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984).

Carpenter argues that the determination of persistent felony offender status is a “trial-like” procedure because the state is required to prove each element of persistent felony offender status beyond a reasonable doubt and thus, under Bullington, the state could not subject him to a PFO I determination a second time.

We reject Carpenter’s analogy between Kentucky’s persistent felony offender sentencing proceeding and the death penalty phase of a capital trial. It is true that PFO proceedings in Kentucky share some characteristics of Missouri’s death penalty proceedings discussed in Bullington. As in Bulling-ton, the state must prove each element of PFO status beyond a reasonable doubt, Ky. Rev.Stat.Ann. § 500.070(1), and the PFO status is determined in a separate proceeding, Ky.Rev.Stat.Ann. § 532.080(1). However, we are unconvinced that the anxiety and ordeal suffered by a defendant during a death penalty proceeding are in any respect comparable to those experienced by a defendant in a PFO proceeding.

There is another important distinction between a death penalty proceeding and a PFO proceeding. In a death penalty trial, the jury considers facts bearing on the guilt or innocence of the accused and circumstances surrounding the underlying crime. In Kentucky’s sentence enhancement proceedings, however, the jury’s determination of PFO status is completely independent of the facts surrounding the underlying crime for which the defendant was convicted. We do not believe the Double Jeopardy Clause is implicated in such a proceeding. See Denton v. Duckworth, 873 F.2d 144 (7th Cir.), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989); Linam v. Griffin, 685 F.2d 369 (10th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983).

VI.

Accordingly, we REVERSE the district court’s judgment granting, in part, Carpenter’s petition for habeas corpus relief.

1 . Because we hold that the Double Jeopardy Clause does not apply to sentence enhancement, we do not address Carpenter’s argument that the collateral estoppel component of the Double Jeopardy Clause precluded submission to the second jury of the PFO I charge.