Bally v. Kemna, 95-1465

• Decision Date: 07 September 1995
• Docket Number: No. 95-1465,95-1465
• Citation: 65 F.3d 104
• Parties: James E. BALLY, Appellee, v. Mike KEMNA, Superintendent, Western Missouri Correctional Center; Attorney General of the State of Missouri, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 104

65 F.3d 104

64 USLW 2223

James E. BALLY, Appellee, v. Mike KEMNA, Superintendent, Western Missouri Correctional Center; Attorney General of the State of Missouri, Appellants.

No. 95-1465.

United States Court of Appeals Eighth Circuit.

Submitted June 13, 1995.

Decided Sept. 7, 1995.

Stephen D. Hawke, Jefferson City, MO, argued, for appellant.

Thomas J. Cox, Kansas City, MO, argued, for appellee.

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

HENLEY, Senior Circuit Judge.

The State of Missouri appeals from a judgment of the district court granting James E. Bally's petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. We reverse.

The parties do not dispute the following:

Bally was intoxicated on November 28, 1991 ... when he drove his car past a stop sign without stopping. His car crashed into the side of another car in which Robert Thomason, Thomason's wife, and their one-year old son were riding. Thomason and his wife were seriously injured. Their son sustained minor injuries. In two separate cases, the state charged Bally with driving while intoxicated [DWI] and second degree vehicular assault. Thomason died ten days later. The next day, on December 9, Bally surprised the state by suddenly pleading guilty to the DWI charge in an unscheduled hearing he arranged.

The state did not object to the proceeding. The court accepted Bally's plea but delayed sentencing until an investigation was completed. On December 27, before the investigation was complete, the state asked the court for leave to nolle prosequi the DWI charge. The court granted the request on January 3, 1992, after a hearing. After the state dismissed the DWI charge, it amended the still-pending vehicular assault charge to add an involuntary manslaughter charge and prosecuted Bally for both.

State v. Bally, 869 S.W.2d 777, 778 (Mo.Ct.App.1994) (footnote omitted).

Bally moved to dismiss the indictment for vehicular assault and manslaughter on double jeopardy grounds. The trial court denied the motion and the case proceeded to trial. The jury convicted Bally on both counts.

Bally appealed, arguing that because DWI was a lesser included offense of vehicular assault and manslaughter and because jeopardy attached when the trial court accepted his guilty plea to DWI, the state could not prosecute him on the greater offenses. The state appellate court rejected his argument. The court did not dispute that DWI was a lesser included offense of vehicular assault and manslaughter and that double jeopardy bars prosecution for a greater offense after a defendant has been acquitted of a lesser included offense. Id. at 779. The court also acknowledged that the general rule appeared to be that jeopardy attached when a court unconditionally accepted a guilty plea. Id. at n. 5. However, the court found it unnecessary to decide when jeopardy attached because it believed that a nolle prosequi dismissal with leave of the court was not the "functional equivalent of an acquittal." Id. at 779.

The state court also relied on the so-called "sword" exception of Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). In Johnson, the Supreme Court held that double jeopardy did not bar prosecution on the remaining counts of an indictment after a trial court, over the state's objection, accepted a defendant's pleas to lesser included offenses. Id. at 494, 104 S.Ct. at 2538. In the facts of the case, the Court believed that "[n]otwithstanding the trial court's acceptance of respondent's guilty pleas, respondent should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution of the remaining charges." Id. at 502, 104 S.Ct. at 2542. In Bally, the state court believed that "Bally's decision to plead guilty to DWI, with only minutes notice to the prosecutor ... constitute[d] an impermissible use of the Fifth Amendment as a 'sword.' " 869 S.W.2d at 780. ¹

Bally then filed this habeas petition, which the district court granted. Relying on United States v. Bullock, 579 F.2d 1116, 1118 (8th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978), the district court agreed with Bally that jeopardy attached when the trial court accepted his guilty plea to DWI. The court reasoned that because jeopardy had attached double jeopardy barred prosecution of the greater offenses of vehicular assault and manslaughter. The court also believed that Ohio v. Johnson did not apply, because in that case the prosecutor had charged the defendant in a single indictment charging greater and lesser offenses and had objected to acceptance of guilty pleas to the lesser offenses, whereas in the instant case the prosecutor had charged Bally in two separate indictments and had not objected to acceptance of the plea.

"The Double Jeopardy Clause ... affords a defendant three basic protections[.]" ² Ohio v. Johnson, 467 U.S. at 497-98, 104 S.Ct. at 2540. " '[I]t 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.' " Id. (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977)). Moreover, "the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been tried and acquitted or convicted on the lesser included offense." Id. at 501, 104 S.Ct. at 2542. Where, as here, "successive prosecutions are at stake, the [Double Jeopardy Clause] serves a 'constitutional policy of finality for the defendant's benefit.' " Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225 (quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion)). More specifically, "the 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." Ohio v. Johnson, 467 U.S. at 498-99, 104 S.Ct. at 2540.

"As an aid to the decision of cases in which the prohibition of the Double Jeopardy Clause has been invoked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of 'attachment of jeopardy.' " Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). The Supreme Court has held that "[i]n the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn[,]" and "[i]n a nonjury trial ... when the court begins to hear evidence[,]" id., but has not yet decided when jeopardy attaches to a guilty plea. See Ricketts v. Adamson, 483 U.S. 1, 8, 107 S.Ct. 2680, 2685, 97 L.Ed.2d 1 (1987) ("We may assume that jeopardy attached at least when respondent was sentenced ... on his plea of guilty[.]"). It follows, of course, only if jeopardy has attached "does any subsequent prosecution of the defendant bring the guarantee against double jeopardy even potentially into play." Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978).

In this appeal, the state does not challenge the district court's observation that as a general rule courts have held that jeopardy attaches when a trial court unconditionally accepts a guilty plea. ³ See Fransaw v. Lynaugh, 810 F.2d 518, 523 n. 9 (5th Cir.) (collecting cases), cert. denied, 483 U.S. 1008, 107 S.Ct. 3237, 97 L.Ed.2d 742 (1987). The state also acknowledges that in United States v. Bullock, 579 F.2d at 1118, this court stated: "Of course, jeopardy would attach when a plea of guilty is accepted." However, the state argues the statement in Bullock is dictum and that this court has never resolved the issue.

The state then requests that this court adopt the position of the Tenth Circuit in United States v. Combs, 634 F.2d 1295, 1298 (10th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 304 (1981), which indicated that jeopardy does not attach upon acceptance of a guilty plea but only attaches upon sentencing and entry of judgment. The state argues that acceptance of a guilty plea does not implicate the policies behind the Double Jeopardy Clause. In particular, the state argues "mere acceptance of a guilty plea does not carry the same expectation of finality and tranquility that comes with a jury's verdict or with an entry of judgment and sentence[,]" United States v. Santiago Soto, 825 F.2d 616, 620 (1st Cir.1987), and a guilty plea hearing does not entail the expense, strain, or embarrassment of a trial and at a hearing the prosecution does not have the opportunity to "hone its presentation of its case through a trial." Ohio v. Johnson, 467 U.S. at 501, 104 S.Ct. at 2542. The state also notes that in certain circumstances Missouri law prohibits entry of judgment even though a judge accepts a guilty plea, citing Mo.S.Ct.R. 24.02(e).

Bally responds that the statement in Bullock was holding, not dictum. In any event, he argues that this court should follow the rule that jeopardy attaches upon acceptance of a guilty plea. He argues that he suffered strain and embarrassment at the plea hearing. Moreover, he argues that jeopardy means "risk of a determination of guilt," Serfass v. United States, 420 U.S. at 391, 95 S.Ct. at 1064, and asserts that he was put at risk of conviction of vehicular assault and manslaughter because at the plea hearing he admitted he was driving while intoxicated. Bally also argues that to hold that jeopardy attaches upon sentencing would be unworkable in Missouri because of state law concerning suspended imposition of sentence, citing Mo.Rev.Stat. Secs. 557.011, 559.012.

We agree with the state that the statement in Bullock was dictum. In ...