Lewis v. Warner

802 P.2d 1053, 166 Ariz. 354, 68 Ariz. Adv. Rep. 42, 1990 Ariz. App. LEXIS 294

• Court: Court of Appeals of Arizona
• Decided: September 4, 1990
• Docket: 2 CA-SA 90-0117
• Status: Published

Opinions

OPINION

HOWARD, Judge.

This special action was taken from the trial court’s order denying petitioner’s motion to dismiss. The double jeopardy issue presented arises out of the application of the United States Supreme Court’s recent decision in Grady v. Corbin, — U.S.-, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Because this is a matter of statewide concern and turns entirely upon legal principles rather than controverted issues of fact, we accept jurisdiction. University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983). For the reasons set forth below, however, we deny relief.

The essential facts are undisputed. On March 20,1990, Department of Public Safety Officer Hernandez observed petitioner driving his vehicle and weaving from lane to lane. After pulling petitioner over to the side of the road, Officer Hernandez noticed that petitioner exhibited signs of intoxication. A subsequent intoxilyzer test indicated a blood alcohol content of .224 percent. The officer also learned that petitioner’s license had been suspended on March 17, 1988.

Petitioner was arrested and charged with driving while under the influence of intoxicating liquor while his license was suspended, a class 5 felony, in violation of A.R.S. § 28-692.02. He was also issued citations for 1) driving on a suspended license (A.R.S. § 28-473, a class 1 misdemeanor), 2) making an unsafe lane change (A.R.S. § 28-729, a civil traffic offense), 3) use of fictitious plates (A.R.S. § 28-326(B)(l), a class 2 misdemeanor), and' 4) noncurrent registration (A.R.S. § 28-326(C), a civil traffic offense). On March 30,¹ pursuant to a plea agreement, petitioner entered a guilty plea in justice court to driving on a suspended license in violation of A.R.S. § 28-1203, a class 2 misdemeanor. Pursuant to the prosecutor’s recommendation in the agreement, petitioner was ordered to pay a $110 fine and the remaining charges, not including the felony, were dismissed. Also on March 30, the grand jury indicted petitioner on the charge of driving while under the influence of intoxicating liquor while his license was suspended. A.R.S. § 28-692.02.

On July 3, petitioner filed a motion to dismiss the felony charge on two grounds. First, petitioner argued that the felony should be dismissed because he had previously pled guilty to the misdemeanor charge of driving on a suspended license, relying on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Second, petitioner argued that, under Grady v. Corbin, supra, the state was precluded from introducing evidence of the unsafe lane change in any prosecution of the lesser-included offense of driving while under the influence of intoxicating liquor because petitioner had already been “prosecuted” for that conduct in the justice court proceedings. The trial court granted the motion as to the first contention, finding that prosecution for the felony charge was barred by the guilty plea to the lesser-included offense. The court denied the motion, however, as to the Grady issue, apparently ² concluding that jeopardy did not attach to the dismissed charge of unsafe lane change because it is denominated a civil rather than a criminal offense and because dismissal pursuant to a plea agreement did not constitute a formal prosecution within the meaning of the double jeopardy clause. This special action followed.

Although the parties have advanced a number of different grounds for resolving this matter, we find that only one question need be addressed: is a defendant placed in jeopardy on charges which are dismissed³ pursuant to a plea agreement, such that evidence of the conduct encompassed by those charges may not be used in a subsequent prosecution to establish an essential element of another offense? ⁴

The constitutional protection against double jeopardy is threefold:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-665 (1969) (footnotes omitted). As the Supreme Court noted in Ohio v. Johnson, 467 U.S. 493, 498-499, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425, 433 (1984):

[T]he bar to retrial following acquittal or conviction ensures that the State does not make repeated attempts to convict an individual, thereby exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence.

The first inquiry, necessarily, is whether jeopardy has attached to the prior proceedings. In that regard, the Court has stated that “jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is ‘put to trial before the trier of facts, whether the trier be a jury or a judge.’ ” Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265, 274 (1975).⁵ In the present case, because the petitioner was neither convicted of the unsafe lane change charge nor subject to punishment therefor, the issue is whether the dismissal of the charge serves as an “acquittal” for purposes of the double jeopardy clause. In United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354-1355, 51 L.Ed.2d 642, 651 (1977), the Court stated:

[W]e have emphasized that what constitutes an “acquittal” is not to be controlled by the form of the judge’s action. [Citations omitted.] Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.

(Emphasis supplied.)

Although the Supreme Court has not addressed the precise issue before us, it has analyzed the significance of charges dismissed in guilty plea proceedings in the context of the double jeopardy clause. In Ohio v. Johnson, supra, the defendant was the subject of an indictment charging murder, involuntary manslaughter, aggravated robbery and grand theft. At his arraignment, over the state’s objection, the trial court accepted the defendant’s guilty plea to the lesser-included offenses of involuntary manslaughter and grand theft and dismissed the remaining charges on double jeopardy grounds. The Supreme Court held that double jeopardy did not preclude the state from prosecuting the defendant on the greater charges in the indictment.

Respondent has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an “implied acquittal” which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses. [Citations omitted.] There simply has been none of the governmental overreaching that double jeopardy is supposed to prevent. On the other hand, ending prosecution now would deny the State its right to one full and fair opportunity to convict those who have violated its laws.

Ohio v. Johnson, 467 U.S. at 501-502, 104 S.Ct. at 2542, 81 L.Ed.2d at 435.

Other courts which have addressed the issue have concluded that the dismissal of charges prior to trial, as part of a plea agreement or otherwise, does not operate as an acquittal so as to preclude later prosecution on the ground of double jeopardy. Lowery v. Estelle, 696 F.2d 333 (5th Cir. 1983); United States v. Barker, 681 F.2d 589 (9th Cir.1982); United States v. Johnson, 537 F.2d 1170 (4th Cir.1976); United States v. Williams, 534 F.2d 119 (8th Cir. 1976); United States v. Myles, 430 F.Supp. 98 (D.D.C.1977), aff'd, 569 F.2d 161 (D.C.Cir.1978); State v. Boudreaux, 402 So.2d 629 (La.1981); Commonwealth v. Ward, 493 Pa. 115, 425 A.2d 401 (1981), cert. denied, Ward v. Pennsylvania, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981).⁶ The common thread of these decisions is the finding that the dismissal of the charges involved neither the presentation of any evidence nor any factual findings as to the merits of those charges. As the court stated in State v. Boudreaux, supra:

[T]he defendant at bar was not, in the proceedings in which his guilty plea [to simple robbery] was accepted, in direct peril of being convicted and punished for [armed robbery]. He was not forced to “run the gauntlet” on that charge. No trier of fact refused to convict him on that charge and none was given the choice between finding him guilty on either that charge or on [simple robbery]. The prosecutor and the judge had the sole options of accepting or rejecting the plea on the lesser charge. By accepting it, no determination was made, explicit or implicit, on the merits of the charge not embraced in the plea. There was no implicit acquittal. A plea to a lesser charge necessarily deprives the court of an opportunity to consider the greater charge.

402 So.2d at 632. More succinctly, a dismissal of other charges following a guilty plea to one charge “in no way indicate[s] that the defendant was innocent.” United States v. Myles, 430 F.Supp. at 101. Such a dismissal cannot therefore be considered an acquittal for purposes of double jeopardy.

In the present case, the unsafe lane change citation was dismissed pursuant to petitioner’s plea agreement with the state. There is nothing in the record to suggest, nor do the parties contend, that in accepting petitioner’s plea of guilty the justice court heard any evidence or made any factual determinations with respect to the merits of the unsafe lane change charge. Accordingly, the dismissal was not an acquittal of that charge and jeopardy did not attach to the justice court proceedings with respect to that charge.

In Grady v. Corbin, supra, the Supreme Court held that “the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” - U.S. at-, 110 S.Ct. at 2093, 109 L.Ed.2d . This holding presupposes that the defendant has already been prosecuted, that is, acquitted, convicted or punished as a result of prior proceedings. In Grady, the state was prohibited from proving conduct for which the defendant had previously been convicted pursuant to a guilty plea. The state was not precluded, however, from prosecuting the defendant to the extent that it could rely on conduct for which the defendant had not already been prosecuted. Grady v. Corbin, supra.

In this case, because petitioner has not been prosecuted for the alleged unsafe lane change, Grady does not require that the state be precluded from offering evidence of the conduct involved in that charge to prove the elements of the misdemeanor charge of driving while intoxicated. Accordingly, the trial court did not err in denying petitioner’s motion to dismiss on this ground.

Relief denied.

FERNANDEZ, C.J., concurs.

1 . Although the record is not entirely clear on this point, it appears that petitioner had his initial appearance on the felony charge on March 21 and that he has remained in custody on that charge from the date of his arrest through the date this petition was filed. The justice court orders of March 23 and March 30 both reflect petitioner’s incarceration. However, this fact is not relevant to our decision.

2 . The trial court’s minute entry is not included in the record before us. However, the state does not disagree with petitioner’s characterization of the trial court’s ruling.

3 . Since the justice court’s order does not indicate otherwise, the dismissal must be presumed to be without prejudice. See Ariz.R.Crim.P. 16.-5(d), 17 A.R.S. Accordingly, we do not address the issue of the effect of a dismissal with prejudice. Moreover, since the parties have not raised the question before either the trial court or this court, we do not decide whether the use of evidence of the unsafe lane change in a subsequent prosecution violates the justice court plea agreement.

4 . No contention is made that Blockburger applies to prevent prosecution of the misdemeanor DUI.

5 . Of course the acceptance of a guilty plea and the finding of guilt pursuant to such plea is the functional equivalent of a trial. See Smith v. Municipal Court of Western Judicial District, County of Contra Costa, 139 Cal.Rptr. 121, 71 Cal.App.3d 151 (1977).

6 . The only decision we have found to the contrary is Mason v. State, 302 Md. 434, 488 A.2d 955 (1985). In that case, the defendant had pled guilty to one count of a four-count information in exchange for the state’s agreement to enter a nolle prosequi on the remaining counts and three counts in a second information. The state then obtained a nine-count indictment covering the same period and at least one of the same offenses as the original informations, and the defendant pled guilty to one charge identical to one previously dismissed pursuant to the plea agreement. The appellate court reversed this conviction, finding a double jeopardy violation. While the state’s conduct no doubt constituted a breach of the plea agreement, and therefore due process, we cannot agree that the second prosecution violated double jeopardy.