Hicks v. Duckworth, Civ. No. S 87-740.

• Decision Date: 03 March 1989
• Docket Number: Civ. No. S 87-740.
• Citation: 708 F. Supp. 214
• Parties: William HICKS, Petitioner, v. Jack R. DUCKWORTH; and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

708 F. Supp. 214

William HICKS, Petitioner, v. Jack R. DUCKWORTH; and Indiana Attorney General, Respondents.

Civ. No. S 87-740.

United States District Court, N.D. Indiana, South Bend Division.

March 3, 1989.

Margaret L. Paris, Chicago, Ill., for petitioner.

Kermit R. Hilles, Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

On December 16, 1987, the petitioner, William Hicks, appearing pro se, filed a petition seeking relief under 28 U.S.C. § 2254. The state court record was filed on February 23, 1988, pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The return filed on February 23, 1988, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). On May 25, 1988, Margaret Paris was appointed counsel.

II. FACTS

The facts of this case are clearly stated by then Chief Justice Givan in State v. Hicks, 453 N.E.2d 1014 at 1015 (Ind.1983):

Hicks and two accomplices burglarized a dwelling in Tippecanoe County. An information charging all three with Burglary and Attempted Theft was filed on August 10. The arraignment was set for August 23. At the hearing held on that date, Hicks entered a plea of guilty to both counts which the court accepted.

On August 31, the prosecutor filed an "Information of Habitual Offender" as to Hicks. The essential allegation of this pleading was that Hicks had accumulated three prior unrelated felony convictions.

On September 8, Hicks filed a Motion to Dismiss the Habitual Offender Allegations. The court heard argument on the motion at the September 20 sentencing hearing and also entertained an oral motion from the prosecutor to amend the information originally filed. This motion was denied. On September 24, the court granted Hicks' Motion to Dismiss. On September 29, the State filed a written Motion to Amend, but it was also denied. Hicks was sentenced to a twenty-year term of imprisonment upon conviction on the burglary charge. The State timely perfected its appeal.

Hicks, 453 N.E.2d at 1015.

The Supreme Court of Indiana held that the trial court erred in granting Hicks' Motion to Dismiss the proposed habitual offender amendment and also in denying the State's motions to amend the original charge. The court also held that the voluntariness of the guilty plea was suspect because the plea was entered without any advisement to Hicks as to the effect of an adjudication as a habitual offender on his sentencing. Hicks, 453 N.E.2d at 1021. The case was remanded with instructions to allow the state to bring the habitual offender enhancement and to allow Hicks to withdraw his guilty plea.

Upon remand the state did amend the information to include the habitual offender enhancement. Hicks then withdrew his guilty plea. After a jury trial, Hicks was found guilty and his sentence was enhanced as a habitual offender. This conviction was upheld on appeal. Hicks v. State, 510 N.E.2d 676 (Ind.1987).

Hicks previously filed a petition for writ of habeas corpus in this court attacking a Nevada state court conviction for theft which was relied upon to enhance Hicks' current sentence. Hicks alleged he did not knowingly enter into his Nevada guilty plea. Respondents moved that the Nevada guilty plea case be dismissed. Hicks challenged the motion until the Nevada plea agreement transcript was produced. For proceedings related to this issue, see Hicks v. Duckworth, 856 F.2d 934 (7th Cir.1988). Accordingly, the habeas corpus petition was here dismissed with prejudice on February 7, 1989.

III. ISSUE

Was the petitioner placed in double jeopardy when he withdrew his guilty plea and stood trial subsequent to the prosecutor being permitted to amend the information to include a habitual offender enhancement after the petitioner's guilty plea had been accepted by the state trial court and petitioner had begun serving his sentence?

IV. ANALYSIS

The Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States provides three fundamental 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). See also, United States v. Dickerson, 857 F.2d 414, 416 (7th Cir.1988). The same double jeopardy considerations apply where a defendant is incarcerated as a result of a guilty plea as where a defendant is incarcerated as a result of a jury trial and conviction. Almeda v. Blubaum, 400 F.Supp. 177 (D.Ariz.1975).¹

The protections of the Double Jeopardy Clause have not been violated in this case. Hicks was not acquitted by either the state trial court or the Supreme Court of Indiana. Hicks was not prosecuted twice for the burglary and attempted theft charges, and Hicks did not receive multiple punishments. Hicks did receive an enhancement of 30 years, but that is not a second prosecution or a multiple punishment.

The current leading case on the issue of the Double Jeopardy Clause is United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The Supreme Court said the Double Jeopardy Clause does not provide the defendant with a right to know at any specific moment in time what the exact limit of his punishment will turn out to be. DiFrancesco, 449 U.S. at 137, 101 S.Ct. at 437. See also, United States v. Bishop, 774 F.2d 771, 775 (7th Cir.1985). The defendant in DiFrancesco was "charged with knowledge of the statute and its appeal provisions, thus the defendant has no legitimate expectations of finality." DiFrancesco, 449 U.S. at 136, 101 S.Ct. at 437. Like the defendant in DiFrancesco, Hicks knew about the habitual offender enhancement. Hicks heard about the amendment to the information at his change of plea hearing. Also, Hicks knew that the State of Indiana was appealing the decision of denying the amendment to the information. Hicks was sentenced to 20 years, but he had no knowledge of when he would be released. Thus, Hicks could not have had any legitimate expectation of the finality of his sentence which is now required under DiFrancesco.

Also, Hicks relies on United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931) and Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874) for the proposition that once an individual begins serving his sentence, the sentence may not be increased. However, that reliance is misplaced since the decision in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).

The court in DiFrancesco strictly limited the Benz decision stating that the only issue considered in Benz was whether the trial court had the power to reduce a sentence once the defendant had commended serving the sentence. The Benz decision does contain dicta to the effect that once a defendant has begun to serve his sentence a court cannot increase that sentence; however, the Supreme Court noted that Benz had erroneously relied on an earlier Supreme Court decision, Ex parte Lange, to support this dicta. DiFrancesco at 138 101 S.Ct. at 438. The Court characterized the holding in Ex parte Lange as only that "a defendant may not receive a greater sentence that the legislature has authorized." Id. at 139 101 S.Ct. at 438. Thus, the Court noted that "the holding in Lange, and ... the dictum in Benz, are not susceptible of general application.

United States v. Bishop, 774 F.2d 771, 775 (7th Cir.1985). Also, the trial court's power to modify a sentence is not necessarily terminated when service on the sentence is commenced. 774 F.2d at 775, n. 6.

In United States v. Shue, 825 F.2d 1111 (7th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987). A recent case dealing with the issue of legitimate expectation of finality and resentencing, the Seventh Circuit Court of Appeals, speaking through Judge Ripple concluded that the Double Jeopardy Clause was not offended when the defendant was resentenced after he had already begun serving his sentence. Shue had been convicted of bank robbery and conspiracy and appealed. The Court of Appeals for the Seventh Circuit affirmed in part and reversed and remanded in part. United States v. Shue, 766 F.2d 1122 (7th Cir.1985). On remand the district court resentenced the defendant for a conviction which was affirmed. United States v. Shue, No. 81 Cr. 362 (N.D.Ill. Dec. 9, 1985) 1985 WL 5518.

The defendant appealed, relying upon United States v. Jones, 722 F.2d 632 (11th Cir.1983) which held that, where a defendant (who had not appealed his conviction or sentence) had begun to serve his sentence, he had a legitimate expectation as to the duration of the sentence that was protected by the double jeopardy clause. Jones, 722 F.2d at 638. This is the same situation as Hicks. Hicks did not appeal his plea agreement, but the state appealed the right to amend the information. Hicks therefore knew that there was a question as to the finality of sentence. The Jones court stated that "unless the statute explicitly provides for sentence modification, as in DiFrancesco, or the defendant knowingly engages in deception, a sentence may not be altered in a manner prejudicial to the defendant after he has started serving the sentence." Jones, 722 F.2d at 638-639.

The court in Shue countered by stating:

Mr. Shue's reliance on Jones is unpersuasive. As the Fourth Circuit noted in United States v. Bello, 767 F.2d 1065 (4th Cir.1985), the majority opinion in DiFrancesco, "undercut the basis for any general rule that the Double Jeopardy Clause precludes a sentence increase once the defendant has commenced serving the sentence." Id. at 1069. The Bello court pointed out that DiFrancesco "focused on whether the defendant held a legitimate `expectation of finality' as to the original sentence, in order to determine whether

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