State v. Vernell Teynac Hennings

670 P.2d 256, 100 Wash. 2d 379, 1983 Wash. LEXIS 1769

• Court: Washington Supreme Court
• Decided: October 6, 1983
• Docket: 49323-5
• Status: Published

Opinions

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 ROW 9.92-.090. That charge was based upon two prior King County proceedings. On March 8, 1974, Hennings pleaded guilty to robbery. On January 7, 1977, Hennings stipulated to facts sufficient to support a conviction for first degree robbery, while armed with a deadly weapon. On appeal, only the validity of the 1974 guilty plea is challenged; the 1977 and 1981 convictions are not contested.

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. Coveil, Hennings' attorney in the 1974 case. Covell testified that he had no independent recollection of either Hennings personally or 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 mention 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 against self-incrimination, the right to trial by jury, the right to confront and examine adverse witnesses, the right to call witnesses on his own behalf at no expense, the right to require that the State prove the charge beyond a reasonable doubt, and the right of appeal. The judge also concluded there was an insufficient factual basis for the entry of the plea. Therefore, he dismissed the habitual criminal charge.

A habitual criminal proceeding under RCW 9.92.090 involves several significant characteristics relevant to double jeopardy analysis. First, an action to determine the status of habitual offender is a separate, supplemental proceeding. State v. Kirkpatrick, 181 Wash. 313, 315-16, 43 P.2d 44 (1935). Second, the State has the burden of proving beyond a reasonable doubt several facts. One is the existence of two prior valid felony convictions along with the present conviction. State v. Kelly, 52 Wn.2d 676, 328 P.2d 362 (1958). In addition, if, as in this case, any of the convictions were based on guilty pleas and the defendant challenges the validity of the plea, the State must also prove beyond a reasonable doubt that the challenged plea was knowingly made after the defendant was informed of the nature of the offense and the consequences of pleading guilty. State v. Holsworth, 93 Wn.2d 148, 161, 607 P.2d 845 (1980). Finally, the second paragraph of RCW 9.92.090 limits the penalty to life imprisonment; although the sentence may be suspended, there is no discretion to impose a reduced sentence. The question is whether this type of proceeding invokes the protections of the double jeopardy clause.

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 . . .". U.S. Const, amend. 5. That apparent clarity, however, has not resulted in equally clear precedent. Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 82-86 (1979). The United States Supreme Court even admits that its decisions in this area "can hardly be characterized as models of consistency and clarity." Burks v. United States, 437 U.S. 1, 9, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978). Because of this confusion, it is necessary to consider the interests protected by the double jeopardy clause in order to determine whether it should apply to the circumstances of a given case.

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 Jeopardy 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 weight of evidence, rather than insufficiency, does not preclude retrial on double jeopardy principles). Although some argue that this protection represents a special deference to jury conclusions, the Supreme Court has not made such a distinction.

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 defendant 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 defendants 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 proceedings.

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 Bul-lington'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 stan-dardless 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 federal "dangerous special offender" sentencing statute. That statute is similar to the habitual criminal statute involved here in that both permit enhancement of a sentence upon proof of certain prior acts. Unlike Washington's habitual criminal procedure and the Missouri procedure at issue in Bullington, however, the federal statute required proof only by a preponderance of the evidence, and the Court retained broad discretion in setting the sentence. 18 U.S.C. § 3575 (1970). Also, the procedure in DiFrancesco included the right to appellate review of sentences " 'on the record of the sentencing court". Bullington, at 440. The appellate court could modify the sentence itself, rather than remanding for a second proceeding in which the State would have an opportunity to convince another fact finder of facts necessary to impose a particular sentence. Bulling-ton, at 440. Finally, DiFrancesco itself involved only an appeal by the State of the court's exercise of its sentencing discretion, not an appeal of adverse factual findings.

Respondent argues that Washington's habitual criminal procedure 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, RCW 9.92.090 specifies the facts that must be proven to establish that status. Once that status is proven, the statute specifies a particular sentence that "shall" be imposed. The trial court, however, may suspend that sentence. State v. Gibson, 16 Wn. App. 119, 126, 553 P.2d 131 (1976). The trial court's discretion to choose between life imprisonment and life probation for a habitual criminal is very similar to the jury's option under the Bullington statute to choose between life and death. Although Bullington involved the death penalty sentencing provision, neither the reasoning nor the holding in that case depends upon the presence of the death penalty.

A comparison of the DiFrancesco and Bullington opinions indicates that Washington's habitual criminal proceedings are more like those analyzed in Bullington. Although each Supreme Court decision concerned bifurcated sentencing proceedings, both Washington's procedure and Missouri's involve a beyond a reasonable doubt standard of proof, rather than the preponderance standard used in DiFrancesco. Also, the federal judge in DiFrancesco retained broad discretion in sentencing, 18 U.S.C. § 3575 (1970), whereas the Missouri and Washington tribunals are limited to two distinct choices in sentencing. These similarities indicate that under Bullington double jeopardy principles should apply to Washington's habitual criminal proceedings.

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 two 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.

The Fifth Circuit held that under these requirements, the double jeopardy clause bars a second enhancement proceeding when the evidence at the first enhancement proceeding was insufficient to establish that the defendant committed one or more of the prior offenses necessary for enhancement. . .

Bullard, at 1349. The court concluded that Bullington applied to habitual criminal proceedings because of the similarity in procedures, i.e., a separate proceeding, a requirement of proof of additional facts beyond a reasonable doubt, explicit standards to guide the jury, and a choice of only two alternative sentences. Bullard, at 1360. The court relied on Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978) for the proposition that

a trial verdict or an appellate ruling on insufficiency of the evidence implicates the interest of the defendant in maintaining the integrity of the acquittal and calls for the utmost protection of the double jeopardy clause.

(Footnote omitted.) Bullard, at 1355.

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 produce 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.

Cooper, at 513.

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 criminal 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 focusing 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 Court has recently determined that bifurcated sentencing proceedings may implicate double jeopardy interests. Bul-lington v. Missouri, 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981). Second, at the habitual criminal hearing the State must prove, beyond a reasonable doubt, the existence of the prior valid felony convictions. State v. Hols-worth, supra. Third, the court's sentencing discretion is limited to such an extent that the failure to impose the greater sentence establishes that the State failed to meet its burden of proof to justify that sentence. Bullington v. Missouri, supra. Therefore, the defendant is protected by the double jeopardy clause from successive attempts by the State to establish sufficient proof. Burks v. United States, supra. To the extent that State v. Braithwaite, supra, is inconsistent with this analysis, it is overruled.

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.

1 The procedural path of this case is somewhat more complicated than the citation indicates. After the Fifth Circuit decided Bullard, the Texas Court of Criminal Appeals reexamined its prior holdings and agreed that failure of proof of prior convictions in an enhancement proceeding creates a double jeopardy bar as a matter of federal law, Cooper v. State, 631 S.W.2d 508 (Tex. Crim. App. 1982) (en banc), specifically overruling its decision in Bullard v. State, 533 S.W.2d 812 (Tex. Crim. App. 1976).

The United States Supreme Court subsequently vacated and remanded the Bullard case to the Fifth Circuit, to consider whether the Texas constitution offers respondent relief on grounds independent of the United States Constitution, so as to render inappropriate the decision on federal grounds. Bullard v. Estelle,_U.S__, 74 L. Ed. 2d 987, 103 S. Ct. 776 (1983). There is no indication that the Court disagreed with the application of Bullington to habitual criminal proceedings.

2 This decision does not mean, however, that if Mr. Hennings is subsequently convicted of another felony the State would be precluded from filing another habitual criminal information. It means that in a subsequent hearing the State would be precluded from relying on the invalid 1974 conviction to support such a charge.