Collins v. Com., 97-SC-356-MR

• Citation: 973 S.W.2d 50
• Decision Date: 21 May 1998
• Docket Number: No. 97-SC-356-MR,97-SC-356-MR
• Parties: Stella Marie COLLINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 50

973 S.W.2d 50

Stella Marie COLLINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 97-SC-356-MR.

Supreme Court of Kentucky.

May 21, 1998.

Rehearing Denied Sept. 3, 1998.

Larry H. Marshall, Assistant Public Advocate, Frankfort, for Appellant.

A.B. Chandler, III, Attorney General, Janet M. Graham, Assistant Attorney General, Frankfort, for Appellee.

JOHNSTONE, Justice.

Stella Marie Collins raises a single issue in this appeal: whether an appeal by the Commonwealth of a defendant's sentence in a criminal case is barred by double jeopardy principles. We conclude that it is not and affirm Collins's sentence.

In February of 1995, a jury of her peers found Collins guilty of intentional murder and first-degree criminal abuse. The trial court then offered Collins sentences in the minimum range for both offenses if Collins would agree to waive her right to jury sentencing. The Commonwealth objected to this, but was overruled by the trial court. Not surprisingly, Collins accepted the deal and was sentenced to twenty-one years on the murder charge and seven years for the criminal abuse charge, to be served concurrently. Subsequently, Collins appealed her conviction on both offenses. The Commonwealth appealed the trial court's "deal" with Collins to waive a jury trial on sentencing. The cases were combined and heard together. This Court in Commonwealth v. Collins, Ky., 933 S.W.2d 811 (1996), affirmed her convictions in the guilt/innocence phase of her trial. However, relying on Commonwealth v. Johnson, Ky., 910 S.W.2d 229, 231 (1995), the Collins Court held that the Commonwealth was entitled to have a jury determine her punishment and remanded the case to the trial court "for resentencing consistent with this opinion." Id. at 819.

Upon remand, the trial court scheduled a jury hearing to resentence Collins. Collins objected to the resentencing hearing on double jeopardy grounds, and the trial court overruled the objection. At the conclusion of a three-day jury trial held on the question of punishment, Collins was sentenced to life on the murder conviction and ten years on the criminal abuse conviction. Collins appeals to this Court as a matter of right.

To fully understand Collins's argument, we briefly review the case law upon which her argument is based.

In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the United States Supreme Court held that an appeal by the federal government from a defendant's sentence was not constitutionally barred, where the government's appeal was made pursuant to express statutory authority. Id. at 143, 101 S.Ct. at 440.

In Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985), the defendant was convicted of 56 counts of forgery and 56 counts of theft. Id. at 29, 106 S.Ct. at 353. The trial court sentenced the defendant to a term of imprisonment on one theft count, a term of probation on one forgery count, and suspended the sentences on the remaining counts. Id. On appeal, the Pennsylvania Supreme Court held that the theft count on which the defendant had been sentenced was barred by the applicable statute of limitations, and denied, on double jeopardy grounds, the State's request that the case be remanded for sentencing on the nonbarred theft counts. Id.

The Goldhammer Court found that the holding of the Pennsylvania Supreme Court was inconsistent with DiFrancesco. Id. Rather than summarily reversing the Pennsylvania Supreme Court, the United States Supreme Court remanded the case for further consideration in light of DiFrancesco to consider "whether the Pennsylvania laws in effect at the time [Goldhammer was sentenced] allowed the State to obtain review of the sentences on the counts for which the sentence had been suspended." Id. at 30-31, 106 S .Ct. at 354. Important to the Goldhammer Court's holding was that, in "DiFrancesco, a federal statute clearly allowed the appellate review of the sentences at issue. The [DiFrancesco ] Court noted that, in light of that statute, the defendant could not claim any expectation of finality in his original sentencing." Id. at 30, 106 S.Ct. at 354.

Writing for the dissent in Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989), Justice Scalia stated, "It is clear from DiFrancesco and Goldhammer that when a sentence is increased in a second proceeding, the application of the double jeopardy clause turns on the extent and legitimacy of a defendant's expectation of finality in that sentence. If a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited." Id. at 394, 109 S.Ct. at 2532 (internal quotation marks and internal citations omitted). While the majority seemingly agreed with Scalia's statement of the law, it found that the statement supported the majority opinion: "Justice Scalia's discussion of the defendant's expectation of finality makes no independent contribution to the inquiry.... Respondent plainly had no expectation of serving only an attempted robbery sentence...." Id. at 386, 109 S.Ct. at 2528.

Collins attempts to distinguish DiFrancesco by arguing that the Commonwealth had no explicit statutory authority to appeal her original sentence. Thus, she argues that she had a legitimate expectation of finality in her original sentence. Therefore, she concludes that, under the cases outlined above, principles of double jeopardy barred the increase of her sentence at the resentencing hearing.

We agree with Collins that the Double Jeopardy Clause protects "against additions to a sentence in a subsequent proceeding that upset a defendant's legitimate expectation of finality" in the original or prior sentence. See Jones, 491 U.S. at 385, 109 S.Ct. at 2528. We also agree with Collins that whether she had a legitimate expectation of finality in her original sentence depends upon whether the Commonwealth had the authority to appeal the sentence. See Goldhammer, 474 U.S. at 30, 106 S.Ct. at 354. However, we disagree with Collins's assertion that the Commonwealth lacked authority to seek appellate review of her original sentence.

Section 115 of the Kentucky Constitution gives the Commonwealth the right to one appeal in all criminal cases except where such an appeal would otherwise violate the constitution: "In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the Commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law...." The...