Hagan v. State
| Decision Date | 21 July 1992 |
| Docket Number | No. 74526,74526 |
| Citation | 836 S.W.2d 459 |
| Court | Missouri Supreme Court |
| Parties | Donald HAGAN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
Dave Hemingway, St. Louis, for movant-appellant.
William L. Webster, Atty. Gen., John P. Pollard, Robert Alan Kelly, Asst. Attys. Gen., Jefferson City, for respondent-respondent.
The Fifth Amendment to the United States Constitution provides that "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." In this case we consider whether a guilty plea acts as a waiver of a double jeopardy claim asserted by movant for the first time on a collateral attack of his conviction under Rule 24.035. The trial court denied movant, Donald Hagan's, Rule 24.035 motion. The Court of Appeals, Eastern District, permitted movant to raise his double jeopardy claim, proceeded to its merits, and on that basis reversed the trial court's judgment as to one of the crimes to which Hagan pled guilty. The court of appeals affirmed the remainder of the trial court's judgment. We granted transfer because of the general interest and importance of the question. Our jurisdiction is founded on article V, section 10 of the Missouri Constitution. The judgment of the trial court is affirmed.
The transcript of Hagan's guilty plea hearing shows that Hagan pled guilty to three crimes charged by the State: (1) forcibly stealing the keys to a 1989 Chevrolet Van from his victim in violation of Section 569.030, RSMo 1986 (second degree robbery); (2) stealing his victim's 1989 Chevrolet Van, in violation of Section 570.030, RSMo 1986; and (3) forcibly stealing money and cigarettes from a gas station armed with a deadly weapon, in violation of Section 569.020, RSMo 1986 (first degree robbery). According to the complaint filed by the State, both the second degree robbery charge (the keys) and the stealing of the motor vehicle occurred at 4:00 p.m. at the same location on February 28, 1989. Each involved the same victim.
The trial court sentenced Hagan to fifteen years for second degree robbery, fifteen years for first degree robbery, and seven years for stealing. The trial court ordered the sentences to run concurrently. Pursuant to the plea bargain entered with Hagan, the State agreed not to pursue another pending robbery charge and also promised not to offer evidence to the trial court of Hagan's status as a prior and persistent offender. Section 558.019, RSMo 1986.
Hagan filed a timely Rule 24.035 motion raising for the first time his claim that his conviction for second degree robbery and stealing a motor vehicle violated the double jeopardy clause of the Fifth Amendment to the United States Constitution. Following an evidentiary hearing, the motion court overruled Hagan's post-conviction motion. This appeal followed.
Hagan's principal point on appeal is that the sentencing court lacked jurisdiction to convict or sentence him because the charges of second degree robbery (the victim's car keys) and stealing a motor vehicle (the victim's van) constitute a single larceny under the "single larceny rule." Hagan argues that his sentences for second degree robbery constitute multiple punishments in contravention of the double jeopardy provisions of the Fifth Amendment.
Initially, we consider whether Hagan's guilty plea waives his double jeopardy claim. The general rule in Missouri is "that a plea of guilty voluntarily and understandably made waives all non-jurisdictional defects and defenses." State v. Cody, 525 S.W.2d 333, 335 (Mo. banc 1975), citing Robinson v. State, 491 S.W.2d 314 (Mo.1973). The right to be free from double jeopardy, however, is a constitutional right that goes "to the very power of the State to bring the defendant in the court to answer the charge brought against him." Cody, 525 S.W.2d at 335, quoting Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 2104, 40 L.Ed.2d 628 (1974), overruled on other grounds, Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1977). See also Robinson v. Neil, 409 U.S. 505, 509, 93 S.Ct. 876, 878, 35 L.Ed.2d 29 (1973).
Weighing these competing interests, United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), acknowledges the general rule that when an offender seeks to reopen a conviction based upon a guilty plea that has become final, "the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." Id. at 569, 109 S.Ct. at 762. Collateral attack is generally foreclosed if both of these requirements have been met. Id. An exception to this general rule of waiver, however, exists where it can be determined on the face of the record that the court had no power to enter the conviction or impose the sentence. Id. Broce stands for the proposition that a guilty plea does not waive a subsequent claim of a double jeopardy violation if it can be determined from the face of the record that the sentencing court had no power to enter the conviction or impose the sentence. We believe that the record that a reviewing court may consider in determining whether a double jeopardy claim can be considered on collateral attack consists solely of the State's information or indictment and the transcript of a movant's guilty plea.
On the face of the record before the Court in this case, we have sufficient information to determine whether Hagan suffered a violation of his right to be free from double jeopardy. We proceed to that inquiry.
The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." This protection is made applicable to the State through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969).
Beyond simply protecting defendants from successive prosecutions for the same offense after an acquittal or a conviction, the Fifth Amendment also prohibits multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 798-803, 109 S.Ct. 2201, 2204-2206, 104 L.Ed.2d 865 (1989). The prohibition against multiple punishment is "designed to ensure that the sentencing discretion of the court is confined to the limits established by the legislature." Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984); Missouri v. Hunter, 459 U.S. 359, 366-68, 103 S.Ct. 673, 678-679, 74 L.Ed.2d 535 (1983). See also State v. McTush, 827 S.W.2d 184 (Mo. banc 1992) (abrogating the common law "single act of force" doctrine to the extent of its inconsistency with legislative intent and also holding that the double jeopardy clause does not bar the prosecution in a single proceeding of a single act of force as two crimes if the legislature intended to punish such conduct cumulatively under two different statutes).
In Lorton v. State, 7 Mo. 55 (Mo.1841), the State charged defendant with stealing the property of Richmond Curle in one count and with stealing the property of John B. Gibson in another count. The two victims shared a hotel room; Lorton stole the property from the two at the same time. This Court reversed Lorton's conviction, adopting the so-called "single larceny rule."
The stealing of several articles of property, at the same time and place, undoubtedly constitutes but one offense against the laws, and the circumstance of several ownerships cannot increase or mitigate the nature of the offense.
Id. at 57. State v. Wagner, 118 Mo. 626, 24 S.W. 219 (1893), extended the single larceny rule to cases in which several items of property were stolen at the same time and place from a single individual. See also Cody, 525 S.W.2d at 334-35 ()
The common law applications of the single larceny rule by this Court have focused on multiple convictions of stealing. They do not include the factual distinction found in this case: a conviction for robbery and a conviction for stealing. We are aware, however, that State v. Lewis, 633 S.W.2d 110 (Mo.App.1982), involved a conviction for second degree robbery of car keys and a separate conviction for stealing the automobile started with the keys. For the reasons that follow, we think Lewis was incorrectly decided.
Lewis relies on Cody and Section 570.050. The statute is a codification of the single larceny rule followed in Cody.. As might be expected, Hagan argues that Lewis and Section 570.050 control this case.
Section 570.050 states:
Amounts stolen pursuant to one scheme or course of conduct whether from the same or several owners and whether at the same or different times, constitute a single criminal episode and may be aggregated in determining the grade of the offense.
By its own terms, the statute applies solely to charges of stealing. It permits the prosecutor to aggregate items stolen to determine the grade of the offense. This is because the severity of the crime of stealing depends on the value of the property stolen. A person charged with stealing an item of value greater than $150.00 commits a Class C felony, Section 570.030.3(1). Stealing less than $150.00 is a lesser offense. Thus, the statute permits the State to charge a person who steals two items with an aggregate value greater than $150.00 with a Class C felony, even though the value of each of the individual items stolen is less than $150.00. We conclude that Section 570.050 serves the limited purpose of combining the value of all property stolen to determine whether the grade of stealing to be charged is a Class C felony.
The severity and thus the grade of a robbery offense is not determined by the value of the property forcibly stolen....
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