Opinion
C.C.A. No. 02C01-9802-CR-00038.
July 27, 1999.
SHELBY COUNTY Honorable James Beasley, Jr., Judge (Vehicular Assault — Interlocutory Appeal)
REVERSED AND DISMISSED
FOR THE APPELLANT:
GERALD D. SKAHAN
FOR THE APPELLEE:
JOHN KNOX WALKUP Attorney General Reporter, PETER M. COUGHLAN Assistant Attorney General, WILLIAM L. GIBBONS District Attorney General, and PAULA WULFF Assistant District Attorney General
OPINION
The defendant, Fred Fulgenzi, was indicted for vehicular assault and driving under the influence of an intoxicant (DUI) in separate indictments based on a single instance of alleged criminal behavior. The defendant pleaded guilty to DUI, and the trial court accepted his plea without objection from the state. The defendant then moved to dismiss the indictment for vehicular assault based on double jeopardy. Finding that the defendant's guilty plea had been fraudulently entered, the trial court set aside the plea and denied his motion to dismiss the vehicular assault indictment. In this interlocutory appeal, the defendant argues (1) that the prohibition against double jeopardy bars the state from prosecuting him for vehicular assault following the trial court's acceptance of his guilty plea to DUI and (2) that the trial court erred in setting aside his guilty plea. The state contends that double jeopardy is inapplicable in the present case and (2) even if double jeopardy was applicable, the defendant's plea was properly set aside, thereby negating any bar to further prosecution. After careful review, we respectfully reverse the judgment of the trial court and dismiss the defendant's indictment for vehicular assault, number 97-07010.
BACKGROUND
On July 3, 1997, the Shelby County Grand Jury returned indictment 97-07010 charging the defendant with vehicular assault. On the same day, the same grand jury returned a second indictment, number 97-07011, charging the defendant with driving under the influence of an intoxicant and with reckless driving. Both indictments relate to a single incident of the defendant's alleged criminal conduct that occurred on January 23, 1997.
On December 4, 1997, the defendant announced to the trial court his desire to plead guilty to indictment 97-07011, DUI. When the court inquired of defense counsel regarding disposition of the vehicular assault charge, the defense attorney responded, "I think that's up to the State as to whether they want to proceed on that after this plea, or not." The state responded that it intended to proceed to trial on the vehicular assault indictment. Even so, the state did not object to the defendant's pleading guilty to indictment 97-07011, DUI. At a later hearing, the state candidly admitted that it did not object because it did not perceive any double jeopardy ramifications to the vehicular assault charge. The Assistant District Attorney stated that, had she known the law, she would have objected to the plea.
After advising the defendant of his constitutional rights, the trial court accepted the defendant's guilty plea. Immediately thereafter, the court conducted a sentencing hearing and sentenced the defendant to 180 days confinement, with all but thirty days suspended; eleven months and twenty-nine days probation; a $500 fine; revocation of his driver's license for one year; and mandatory attendance of alcohol safety courses and Alcoholics Anonymous meetings.
Immediately after the court pronounced sentence, the defense moved to dismiss the vehicular assault indictment:
DEFENSE ATTORNEY: Your Honor, as to indictment 97-07010, I believe under the case of State v. Rhodes, 917 S.W.2d 708, Tennessee Criminal Court — Appellate Court, 1995, that case holds the premise that driving under the influence is a lesser included offense of vehicular assault.
And under the case law as it's written in the statute, under the notice of decisions, vehicular assault includes driving under the influence as a lesser included offense. Thus, for double jeopardy purposes, a person cannot be punished separately for DUI and vehicular assault for one act of driving under the influence that causes serious bodily injury.
Taking that statement into account, Your Honor, since [the defendant] has been convicted of driving under the influence and jeopardy to this offense has been attached, we would ask the Court to dismiss the vehicular assault indictment number 97-07010.
THE COURT: Be denied. Set it for trial. And you can take that issue up on appeal if you are unsuccessful in your trial.
On December 8, 1997, the defendant filed a second, written motion to dismiss the vehicular assault indictment based on double jeopardy. The state responded, asserting that the defendant's guilty plea had been fraudulently entered and moved that the plea be set aside.
In its order denying the defendant's motion, the trial court acknowledged that DUI is a lesser included offense of vehicular assault and, therefore, that double jeopardy would generally bar the state from prosecuting the greater offense after the defendant's conviction of the lesser. Nevertheless, the trial court found that defense counsel had taken advantage of good faith, up-front dealing and negotiations by the state and had entered the guilty plea through subterfuge and deception. Thus, the trial court set aside the defendant's plea and stayed judgment on his DUI conviction.
On January 30, 1998, the defendant moved for interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, and the trial court granted permission to appeal. This Court accepted the defendant's application for appeal on March 2, 1998.
ANALYSIS
Two potential issues confront this Court: First, as a threshold inquiry, does the guilty plea to a lesser included offense bar subsequent prosecution for the greater offense regarding the same episode of conduct? If so, did the trial court erroneously set aside the guilty plea as fraudulently entered?
I. Double Jeopardy
The United States and Tennessee Constitutions protect an accused from being twice placed in jeopardy for the "same offense." See U.S. Const. amend. V; Tenn. Const. Art. 1, § 10. This Court has previously determined that DUI and vehicular assault are the "same offense" for double jeopardy purposes. See State v. Rhodes, 917 S.W.2d 708 (Tenn.Crim.App. 1995). Further, the defendant has clearly been put in jeopardy on these charges, as jeopardy attached upon the trial court's unconditional acceptance of his guilty plea. See State v. Todd, 654 S.W.2d 379, 381 (Tenn. 1983). Thus, double jeopardy would apparently bar prosecution of the vehicular assault indictment as a matter of law.
Nevertheless, the state argues that double jeopardy is inapplicable to the present case because the defendant's guilty plea, entered with his knowledge of greater pending charges, does not implicate the policy reasons supporting the prohibition against double jeopardy.
The prohibition against double jeopardy affords three fundamental protections: (1) protection against a second prosecution after an acquittal; (2) protection against a second prosecution after conviction; and (3) protection against multiple punishments for the same offense. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 717 (1969), State v. Lewis, 958 S.W.2d 736, 738 (Tenn. 1997); State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996).
The policy reasons supporting these protections include goals of certainty, reliability, and respect for the judicial process" and "finality of judgments," Bray v. State, 506 S.W.2d 772, 774 (Tenn. 1974); prevention of prosecutorial overreaching, Ohio v. Johnson, 467 U.S. 493, 498-99 (1984); and prevention of the expense, embarrassment, and anxiety of repeated defenses, see id.
The lineage of the state's policy argument begins with Ohio v. Johnson, 467 U.S. 493 (1984). In Johnson, a defendant was accused of two greater and two lesser included offenses in a single indictment. At his arraignment in an Ohio state court, the defendant pleaded guilty to the lesser offenses, and the trial court accepted his plea over the state's objection. The state court then dismissed the greater offenses on the defendant's double jeopardy plea.
On appeal, the United States Supreme Court reversed and held that double jeopardy did not prohibit prosecution of the greater offenses. The Court reasoned that the principles sought by the prohibition against double jeopardy — specifically, "finality and prevention of prosecutorial overreaching" — were not implicated when a defendant, over the state's objection, pleads guilty to a lesser charge while greater charges remain pending. Id. at 501.
Prior to the Johnson decision, the Tennessee Supreme Court had faced this issue in State v. Cloud, 588 S.W.2d 552 (Tenn. 1979). In Cloud, a defendant who was charged with a felony and a lesser included misdemeanor pleaded guilty to, and was convicted of, the lesser offense. The trial court and this Court rejected the defendant's plea of double jeopardy to the greater offense. However, the Tennessee Supreme Court reversed and dismissed the case, holding that the defendant's "plea of guilty to [a lesser included offense] bars his subsequent prosecution for [the greater offense]." Id. at 554.
Despite Cloud, a panel of this Court followed Johnson in State v. Mark Cambron Nickens, No. 03C01-9205-CR-00189 (Tenn.Crim.App. filed Aug. 5, 1993, at Knoxville). As in Johnson, the trial court in Nickens accepted the defendant's guilty plea over the state's objection — a fact the Nickens Court thought important. The Nickens Court distinguished Cloud on the basis that it predates Johnson and "[m]ore importantly, . . . Cloud does not establish that the state attempted as it did here and in Johnson to prevent the offensive use of the double jeopardy provision by objecting to the offered guilty pleas."
We decline to follow Nickens — first, because we are unpersuaded by its reasoning and, second, because it is distinguishable from the present case, in which the state did not object to the defendant's plea.
II. Fraud
Having concluded that the defendant's conviction on his guilty plea to DUI bars the state from prosecuting the vehicular assault indictment against him, we now turn to the trial court's determination that the defendant's plea was fraudulently entered and should be set aside, thereby negating this bar to further prosecution.
The facts constituting the defendant's alleged fraud are undisputed and are in the record before this Court. Thus, whether these facts constitute fraud is purely a question of law, and our review is de novo.
The entire basis for the trial court finding of fraud was the defense counsel's response, when asked what was to happen to the vehicular assault indictment, "I think that's up to the State as to whether they want to proceed on that after this plea, or not." The trial court concluded, apparently from this statement, that "[b]oth sides agreed that the Vehicular Assault would have to be tried." Although characterizing the double jeopardy issue as "obvious" — a characterization we think militates against a finding of fraud — the trial court further concluded that "defense counsel took advantage of good faith, up-front dealing and negotiation by the State and obtained [sic] [the guilty plea] by deception." We respectfully disagree.
The record indicates no "dealing and negotiation" by or with the state, in good faith or otherwise. Rather, the defendant tendered his plea of guilty as indicted directly to the trial court. Without question, defense counsel intended the plea to raise a double jeopardy bar to the vehicular assault indictment. Defense counsel argues that this tactic, and the failure to announce his intentions, was not only permissive, but ethically required. While we leave the determination of ethical requirements to other appropriate authorities, we cannot conclude that either counsel's strategy or his failure to reveal this strategy amounted to fraud or subterfuge.
CONCLUSION
For the above reasons, the judgment of the trial court is REVERSED and indictment 97-07010 charging the defendant with vehicular assault is DISMISSED.
_____________________________ JOHN EVERETT WILLIAMS, Judge
CONCUR:
_____________________________ DAVID G. HAYES, Judge
DISSENTING OPINION
I respectfully dissent from the conclusion reached by my colleagues that double jeopardy bars the prosecution of this defendant for the indicted charge of vehicular assault. The trial court's findings of "subterfuge" and "deception" are supported by the record. Thus, I believe the inaccurate and misleading statements of defendant's counsel to the trial court, which led to acceptance of the DUI guilty plea, negate defendant's ability to rely upon double jeopardy to deny the state its day in court.
FACTS SURROUNDING THE PLEA
The guilty plea transcript reveals the following discourse between defense counsel and the court:
DEFENSE COUNSEL: At this time we have a plea to the Court, directly to the Court, if Your Honor cares to hear it.
. . .
THE COURT: Yes, sir. I need to know what he's pleading guilty to.
DEFENSE COUNSEL: Indictment number 97-07011, driving under the influence, as charged. At this time he's not pleading the 97-07010, vehicular assault.
THE COURT: What are we doing with that?
DEFENSE COUNSEL: I think that's up to the State as to whether they want to proceed on that after this plea, or not.
STATE'S COUNSEL: At this point we would want to proceed [due to the critical injuries suffered by the elderly victim], Your Honor. . . .
. . .
STATE'S COUNSEL: . . . we're ready to set a trial date if that's what [counsel] would like to do.
(Emphasis added.) Defense counsel made no response, and the trial court began taking the guilty plea.
Immediately after acceptance of the guilty plea, the trial court conducted a sentencing hearing in which the defendant testified. During defense counsel's direct examination, defense counsel asked defendant, "you understand at this time you still have a pending felony case against you for vehicular assault?" The defendant replied, "yes."
After the trial court pronounced the sentence, and pursuant to his original intention, defense counsel immediately asked to dismiss the vehicular assault indictment.
In a subsequent hearing on defendant's motion to dismiss, state's counsel testified that prior to the plea, defense counsel advised her the defendant would plead to DUI. When she asked defense counsel about the vehicular assault charge, he stated, "we could set it for trial, to wait and see what the judge wants to do with it." In an affidavit filed by defense counsel, he confirmed that he "informed the Assistant Attorney General that we were entering a guilty plea to the Court on the DUI indictment only. They indicated they would proceed to trial on the vehicular assault indictment and I said that would be fine."
Thus, the record clearly indicates that the statements made by defense counsel to the trial court were inaccurate because it was not counsel's position that the state could decide to proceed with the trial on vehicular assault. These statements were misleading as they led the trial court and the prosecuting attorney to believe the vehicular assault charge would proceed to trial. In fact, the record reflects that defense counsel's original intention was to move for dismissal of the vehicular assault charge. Defense counsel does not deny this.
TRIAL COURT'S FINDINGS
In his order denying the motion to dismiss, the trial judge noted that prior to acceptance of the plea, "both sides agreed that the vehicular assault would have to be tried . . ." and that the trial court was under the same impression. The trial court specifically found that the guilty plea was obtained by "subterfuge" and "deception."
The evidence, in my opinion, does not preponderate against these factual findings by the trial court. Thus, the issue is whether a guilty plea to a lesser offense obtained by "subterfuge" and "deception" creates a double jeopardy bar to prosecution of the pending greater offense. I think not.
STATE V. CLOUD
I believe the majority's reliance upon State v. Cloud, 588 S.W.2d 552 (Tenn. 1979), is misplaced. Cloud, finding a double jeopardy violation based upon a guilty
plea to a lesser offense, was decided in 1979. Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), which was decided by the United States Supreme Court in 1984, should be the controlling authority in this case.
CONTROLLING AUTHORITY
The factual circumstances of the case before us persuade me to follow the holdings of the United States Supreme Court in Ohio v. Johnson, supra, and our Court in State v. Mark Cambron Nickens, C.C.A. No. 03C01-9205-CR-00189, Tenn. Crim. App. 1993 LEXIS 513, at *1 (Tenn.Crim.App. filed August 5, 1993, at Knoxville) (citing and following Johnson; distinguishing State v. Cloud, supra). These cases dictate that there is no double jeopardy problem here.
In Ohio v. Johnson, the United States Supreme Court held that double jeopardy did not bar subsequent prosecution of a defendant for the indicted crimes of murder and aggravated robbery, even though defendant had pled guilty to the lesser charges of involuntary manslaughter and grand theft. 467 U.S. at 494, 104 S.Ct. at 2538, 81 L.Ed.2d at 430. The Court determined that the defendant had not been exposed to conviction, and the state had been denied the opportunity to pursue a conviction on the greater charges. The Court reasoned that, "acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending . . . 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. . . ." 467 U.S. at 501-502, 104 S.Ct. at 2542, 81 L.Ed.2d at 435 (citations omitted).
Likewise, this Court declined to bar a subsequent prosecution on a greater charge of felonious operation of a motor vehicle in spite of the trial judge's unconditional acceptance of defendant's guilty plea to the lesser offense of driving on a revoked license. Mark Cambron Nickens, 1993 LEXIS 513, at *7. The majority finds Nickens unpersuasive, instead finding State v. Cloud, supra, persuasive. As previously stated, the Cloud holding predated Johnson.
I note that the majority also finds Nickens distinguishable since the state in that case objected to the plea.
The factual similarities between Johnson, Nickens, and this case are numerous. Most importantly, each defendant was indicted for both greater and lesser offenses arising from the same conduct; each defendant was allowed by the trial court to plead guilty to the lesser offense(s); and each defendant subsequently attempted to avoid prosecution on the greater offense(s) by a claim of double jeopardy. As in those cases, no interest of this defendant's protected by double jeopardy principles was implicated where the defendant pled guilty to the lesser offense of DUI; and there "has been none of the governmental overreaching that double jeopardy is supposed to prevent." Johnson, 467 U.S. at 502, S.Ct. at 2542, 81 L.Ed.2d at 435.
LACK OF OBJECTION BY THE STATE
The one distinction between the case at bar and the other cases is the lack of formal objection by the state to the entry of defendant's guilty plea. I do not find this distinction dispositive, particularly in view of the inaccurate and misleading statements of defense counsel.
Based upon the state's failure to object to defendant's guilty plea, my colleagues distinguish Johnson and Nickens. Due to defense counsel's inaccurate and misleading statements not only to the prosecuting attorney, but especially in response to the trial court's direct inquiry regarding the status of the vehicular assault charge, a unique factual situation was created which causes me to question whether the presence or absence of a state objection is determinative in deciding the issue of double jeopardy. Nevertheless, if it does have any significance, I believe the inaccurate and misleading statements by defense counsel suffice as a substitute for an objection by the state.
In Grady v. Corbin, the United States Supreme Court remarked: "we need not decide whether our double jeopardy analysis would be any different if affirmative misrepresentations of fact by a defendant or his counsel were to mislead a court into accepting a guilty plea it would not otherwise accept." 495 U.S. 508, 512, n. 4, 110 S.Ct. 2084, 2088, 109 L.Ed.2d 548, 559 (1990). That, based upon the record and the explicit findings of the trial court, is exactly what we have here. As such, I whole-heartedly agree with the principle enunciated in Johnson that defendant should not be entitled to use the Double Jeopardy Clause as a "sword" so as to "deny the State . . . one full and fair opportunity" to its day in court. 467 U.S. at 501-502, 104 S.Ct. at 2542, 81 L.Ed.2d at 435.
I recognize that should this case be remanded for prosecution of the vehicular assault charge, and defendant is convicted, the DUI conviction could not stand. Rather, it would necessarily merge into the greater offense of vehicular assault resulting in a single conviction against defendant. See State v. Rhodes, 917 S.W.2d 708, 714 (Tenn.Crim.App. 1995).
Based on the foregoing, I respectfully DISSENT from the majority opinion and would AFFIRM the judgment of the trial court and REMAND for further proceedings.
It is not my intention to personally berate, condemn, or embarrass defense counsel. Defense counsel believed he had an obligation to his client to pursue the strategy of entering the guilty plea to DUI to foreclose prosecution for vehicular assault. That is not the issue, however. My legal concern is that, while pursuing this strategy, counsel made inaccurate and misleading statements to the trial court and prosecuting attorney.
________________________ JOE G. RILEY, JUDGE