Peiffer v. State

• Decision Date: 08 October 2002
• Docket Number: No. SC84307.,SC84307.
• Citation: 88 S.W.3d 439
• Parties: Thomas PEIFFER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 439

88 S.W.3d 439

Thomas PEIFFER, Appellant, v. STATE of Missouri, Respondent.

No. SC84307.

Supreme Court of Missouri, En Banc.

October 8, 2002.

Rehearing Denied November 26, 2002.

Douglas R. Hoff, Assistant State Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea M. Follett, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM.¹

Thomas Peiffer pleaded guilty in the circuit court of St. Louis City to tampering in the first degree in violation of section 565.070.² He subsequently pleaded guilty in the circuit court of St. Louis County to stealing in violation of section 570.030. The parties agree that both crimes involved the taking and possession of the same 1999 Saturn automobile. Peiffer filed this action in St. Louis County pursuant to Rule 24.035. Along with other claims, his motion asserted that his right to be free from double jeopardy barred conviction of the stealing offense. The motion court denied relief, finding that the offenses were not the same offense for purposes of double jeopardy. Because the offenses are the same for double jeopardy purposes, the judgment is affirmed in part and reversed in part. Peiffer's stealing conviction is vacated.

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. Bass v. State, 950 S.W.2d 940, 946 (Mo.App.1997). In making this determination, the record that a reviewing court may consider in a case involving a guilty plea consists solely of the State's information or indictment and the transcript of Peiffer's guilty plea. Id.

The record shows that Peiffer stole an automobile on October 17, 1998, from an auto dealership in the county. On December 15, 1998, he was charged in the city with tampering in the first degree in violation of section 569.080, alleging that the crime had occurred on October 19, 1998. The parties stipulate that Peiffer pleaded guilty to the city charge of tampering on March 23, 1999, but sentencing was continued for a pre-sentence investigation.

Thereafter, on July 12, 1999, Peiffer was charged in the county with violating section 570.030 by stealing the same automobile. On November 16, 1999, Peiffer pleaded guilty to four county charges of stealing, including stealing the automobile in question,³ and was sentenced to four concurrent seven-year terms.

On March 31, 2000, four months after pleading guilty and being sentenced in the county for stealing the automobile, Peiffer was sentenced in the city to 173 days in prison on the guilty plea he had entered a year earlier for first-degree tampering with the same automobile.

Peiffer alleges that his motion for postconviction relief was meritorious in four respects and that he was entitled to an evidentiary hearing. First, he contends that in this case tampering and stealing were the same offense for double jeopardy purposes, thereby prohibiting the city and county from prosecuting him for both of them. Second, he claims that, under double jeopardy principles, the county lost subject matter jurisdiction to charge or convict him of stealing the automobile in question once he pleaded guilty to first-degree tampering in the city with regard to the same automobile. Third, he asserts that he received ineffective assistance of counsel when entering his plea to stealing in the county because his attorney did not move to dismiss the charge on grounds that it violated his constitutional right against double jeopardy. Finally, he alleges that his attorney incorrectly told him that if he pleaded guilty and received concurrent sentences, the conditional release date in another sentence would not be affected.

Intrinsic to the first three of Peiffer's claims is the concept of double jeopardy. The Fifth Amendment to the United States Constitution establishes that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The Fourteenth Amendment renders this protection against double jeopardy applicable to the states. State v. Heslop, 842 S.W.2d 72, 74 (Mo. banc 1992). This constitutional safeguard protects defendants from successive prosecutions for the same offense after an acquittal or conviction and prohibits multiple punishments for the same offense. Id.

In his first point, Peiffer argues that first-degree tampering is a lesser-included offense of stealing. In State v. McIntyre, 749 S.W.2d 420 (Mo.App.1988), the defendant was charged and convicted by a jury of first-degree tampering. Approximately two months after he was sentenced, he was charged with stealing based on the same taking of the same automobile for which he had been convicted of tampering. Id. at 421. He directly appealed the stealing charge on the grounds that it violated his right to be protected from double jeopardy because he had already been tried and convicted of tampering with the same vehicle for which the stealing charge was levied. Id. at 421-22.

McIntyre found that the stealing charge did not violate the defendant's rights against double jeopardy under prior Missouri appellate court decisions concluding that tampering is not a lesser-included offense of stealing. The court cited to four cases to support this result: State v. Souders, 703 S.W.2d 909 (Mo.App.1985); State v. Gobble, 675 S.W.2d 944 (Mo.App.1984); State v. Rivers, 663 S.W.2d 255 (Mo.App. 1983); State v. Smith, 655 S.W.2d 626 (Mo.App.1983). But, McIntyre failed to note that, in contrast to the case before it, in which the original charge was first-degree tampering, in Souders, Gobble, Rivers, and Smith, the crime argued to be a lesser-included offense of stealing was second-degree tampering. Souders, 703 S.W.2d at 911; Gobble, 675 S.W.2d at 948-49; Rivers, 663 S.W.2d at 256; and Smith, 655 S.W.2d at 627.

First-degree tampering is defined in section 569.080:

1. A person commits the crime of tampering in the first degree if:

. . . .

(2) He knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle without the consent of the owner thereof.

2. Tampering in the first degree is a class C felony.

In comparison, second-degree tampering is defined in section 569.090, which provides in pertinent part:

1. A person commits the crime of tampering in the second degree if he:

(1) Tampers with property of another for the purpose of causing substantial inconvenience to that person or to another; or

(2) Unlawfully rides in or upon another's automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle.

Section 569.010(7) defines "to tamper" as "to interfere with something improperly, to meddle with it, displace it, make unwarranted alterations in its existing condition or to deprive, temporarily, the owner or possessor of that thing."

Stealing is defined in section 570.030 as "appropriat[ing] property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion."

McIntyre contained no analysis of how the elements of first-degree tampering compare with those of stealing, yet it relied on Smith and its progeny's analysis of the elements of second-degree tampering to reach the conclusion that first-degree tampering could not be a lesser-included offense of stealing. The defendant in McIntyre subsequently applied for a writ of habeas corpus in federal court. The United States Court of Appeals for the 8th Circuit held that on the facts of that case first-degree tampering was a lesser-included offense of stealing as those crimes are defined under Missouri law. McIntyre v. Caspari, 35 F.3d 338, 344 (8th Cir.1994). The 8th Circuit's conclusion was reached by comparing the elements, as charged, of first-degree tampering and stealing under the test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which is codified at section 556.046 and known as the same elements test. McIntyre, 35 F.3d at 343-44. It noted that this Court had not addressed whether first-degree tampering was a lesser-included offense of stealing but assumed that if this Court analyzed the issue, it would conclude that first-degree tampering was a lesser-included offense of stealing. Id. at 343.

The analysis of whether first-degree tampering can be a lesser-included offense of stealing begins with section 556.041, which proscribes in some instances prosecuting a person with more than one offense resulting from the same conduct. Section 556.041 provides that when the same conduct by a person may establish the commission of more than one crime, the person may be prosecuted for each offense, with four exceptions.⁴ The first exception is that a person may not be convicted of more than one offense if "one offense is included in the other, as defined in section 556.046." Section 556.041(1). Section 556.046, the codification of the Blockburger test, enumerates three instances in which an offense is a lesser-included offense.⁵ Peiffer argues that his first-degree tampering charge in this case was a lesser-included offense of stealing because the first-degree tampering charge was "established by proof of the same or less than all the facts required to establish the commission of" stealing. Section 556.056.1(1).

The pertinent inquiry in double jeopardy claims like Peiffer's is whether "each offense contains an element not contained in the other; if not, the Double Jeopardy Clause bars a successive prosecution." State v. Burns, 877 S.W.2d 111, 112 (Mo. banc 1994). First-degree tampering occurs when a person "knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle without the consent of the owner thereof." Section...