Thomas v. Morris

• Decision Date: 24 June 1987
• Docket Number: No. 85-1934,85-1934
• Citation: 816 F.2d 364
• Parties: Larry P. THOMAS, Appellant, v. Terry MORRIS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 364

816 F.2d 364

Larry P. THOMAS, Appellant, v. Terry MORRIS, Appellee.

No. 85-1934.

United States Court of Appeals Eighth Circuit.

Submitted March 11, 1986.

Decided April 3, 1987.

Rehearing En Banc Granted June 24, 1987. ^*

Springfield Baldwin, St. Louis, Mo., for appellant.

Patricia D. Perkins, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before McMILLIAN and BOWMAN, Circuit Judges, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge.

Thomas appeals the district court's dismissal of his habeas corpus petition, asserting that a trial court's vacation of his previously commuted sentence is an inadequate remedy for the double jeopardy violation he suffered. He alleges that his continued confinement under a related sentence subjects him to further violation of the double jeopardy clause. For the reasons discussed below, we reverse the district court's decision and remand in accordance with our opinion.

I.

Thomas was convicted of first degree felony-murder and of attempted robbery in the first degree by means of a dangerous and deadly weapon in a jury trial in the Circuit Court of the City of St. Louis. On May 25, 1973, Thomas was sentenced to a fifteen-year sentence for the attempted robbery, and to a term of life imprisonment for the felony-murder. The sentences were ordered to be served consecutively, beginning with the fifteen-year sentence. Appellant began serving this sentence on June 28, 1973. The convictions were affirmed by the Missouri Court of Appeals on February 11, 1975. State v. Thomas, 522 S.W.2d 74, 77 (Mo.App.1975).

Following this affirmation, appellant Thomas collaterally attacked the judgment by filing a Missouri Supreme Court Rule 27.26 motion in state court. The motion was initially dismissed by the state court, but later the Missouri Court of Appeals vacated the dismissal and remanded the cause to the circuit court for a new hearing. On March 27, 1981, appellant's attorney amended the Rule 27.26 motion by adding a double jeopardy claim.

In June of 1981, then Missouri Governor Christopher S. Bond commuted appellant's fifteen-year sentence. One year later, on June 24, 1982, the circuit court vacated the fifteen-year sentence and the conviction for attempted robbery. The court held that the combination of the attempted robbery conviction and the felony murder conviction violated the double jeopardy clause. All of the time Thomas had served prior to the court's vacation was credited toward the remaining life sentence. The Missouri Court of Appeals affirmed the circuit court's decision. Thomas v. State, 665 S.W.2d 621, 625 (Mo.App.1983).

Thomas then filed a petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. Sec. 2254. He asserted that his continued confinement under the life sentence for the conviction of first degree felony-murder was unconstitutional under the double jeopardy clause. United States Magistrate Robert Kingsland issued a recommendation that the writ of habeas corpus be granted. It was the opinion of the Magistrate that because Thomas had "fully satisfied one sentence, the state court was without power to vacate the same sentence and cause petitioner to serve life imprisonment for the same conviction." Thomas v. Morris, No. 84-1760 C(5), slip op. at 11 (E.D.Mo. March 29, 1985).

This recommendation was rejected by the United States District Court for the Eastern District of Missouri on June 28, 1985, in an order by the Honorable Stephen N. Limbaugh. The court denied the habeas petition, holding that the "Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Thomas v. Morris, No. 84-1760 C(5), slip op. at 3 (E.D.Mo. June 28, 1985). The court ruled that Thomas was "not being subjected to greater punishment than the legislature intended" because "the entire time he served for the attempted robbery sentence was duly credited to his life sentence on the felony murder conviction." Id.

Thomas filed an appeal with this court, requesting it to issue a judgment ordering the United States district court to issue its writ of habeas corpus. The appeal is based on the alleged double jeopardy violation outlined above as well as on a claim that the circuit court's vacation of the previously commuted sentence acted as an ex post facto law in violation of the due process clause of the fourteenth amendment. The record before this court does not indicate whether the ex post facto claim was part of the habeas claim presented to the district court, and therefore we shall not consider it.

II.

The first step in analyzing Thomas' claim is to determine if he had fully satisfied the fifteen-year sentence for the attempted robbery conviction prior to the vacation of that sentence by the circuit court. For, if he had not, it is clear from this court's ruling in Holbrook v. United States that the circuit court had "the right to say which of the two consecutive sentences, contemporaneously imposed and both unexecuted shall be eliminated in order not to subject the defendant to ... double punishment." 136 F.2d 649, 652 (8th Cir.1943). Thus, unless the sentence was satisfied, there is no double jeopardy violation.

The determinative factor in deciding whether Thomas had fully satisfied the fifteen-year sentence is the legal effect of the commutation of sentence issued in June of 1981. Thomas asserts that under the terms of the commutation he had completed serving his fifteen-year sentence on June 16, 1981--one year prior to the vacation of the sentence by the circuit court.

Appellee Morris, on the other hand, asserts that when Governor Bond commuted the sentence he was merely changing Thomas' punishment from fifteen years plus life to a less severe punishment of a life sentence only. Therefore, according to Morris, Thomas never fully completed the fifteen-year sentence because the commutation merely substituted the punishment of life imprisonment for the original two sentences.

The district court below did not make any rulings as to the legal effect of the commutation, apparently under the false impression that this factor had no significance. Fortunately, however, this court has a true and complete copy of the commutation in the record. The relevant language of the commutation reads:

Whereas Larry Thomas ... was ... convicted of the crime of ... ATTEMPTED ROBBERY FIRST DEGREE BY MEANS OF DDW, ..., I, CHRISTOPHER S. BOND, Governor of the State of Missouri, by virtue of authority in me vested and for good and sufficient reasons, do hereby commute the sentence of the above mentioned recipient hereof, to a term ending June 16, 1981.

The commutation was signed on June 12, 1981. There is no mention in the document of either the felony-murder conviction or the life sentence appellant received pursuant to it.

It is difficult, in light of the language contained in this document, to find any merit in appellee's assertion that the commutation was a substitution of one sentence for the two sentences. The commutation lacks any indication that this was the case. Instead, it refers only to the attempted robbery conviction and the associated fifteen-year sentence and unambiguously commutes this sentence to a term "ending" on June 16, 1981.

In support of his assertion, appellee points out that the commutation of a sentence is the change of a punishment to which a person has been condemned to "a less severe" one. While this is the law, we do not see how it helps appellee's argument. See Rawls v. United States, 331 F.2d 21, 27 (8th Cir.1964); Lime v. Blagg, 345 Mo. 1, 131 S.W.2d 583, 585 (1939) (en banc). Under the commutation, Thomas' fifteen-year sentence ended on June 16, 1981, four days after the Governor signed it. This was a substitution of "a less severe" sentence for the original fifteen-year sentence, which otherwise would not have ended until June 28, 1988.

Beyond this bare assertion of law, which in no way hurts Thomas' position, appellee presents no evidence supporting the theory that the commutation means anything other than what it says--i.e., that the fifteen-year sentence ended on June 16, 1981. ¹ The only possible theory under which Thomas could be held not to have fulfilled the sentence for attempted robbery is to argue that fulfillment of a commuted sentence is not equal to the fulfillment of a non-commuted sentence. There is, however, no authority for such a proposition. Instead, under Missouri law, "the commuted sentence has the same effect and the status of a prisoner is the same as though the sentence had originally been for the commuted term." State v. Cerny, 248 S.W.2d 844, 845 (Mo.1952); Ex Parte Reno, 66 Mo. 266, 269 (1877).

Because we hold that Thomas legally satisfied the sentence he received for the attempted robbery, this court must now address the question of whether the subsequent vacation of that sentence and his continued confinement under the felony-murder conviction violated the double jeopardy clause.

III.

The guarantee against double jeopardy consists of three separate constitutional protections. "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 (1969) (footnotes omitted).

This case involves the third prong, the prohibition against multiple punishments. Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed.2d 872 (1873), was the first case to hold that the double jeopardy clause prohibits multiple punishments for the same offense, and it provides the starting point for our analysis.

In Lange, the criminal statute the defendant violated prescribed as punishment a fine of not more than two hundred dollars or imprisonment for not more than one year. Notwithstanding the wording of the...