People v. Allen

• Decision Date: 10 January 1994
• Citation: People v. Allen, 868 P.2d 379 (Colo. 1994)
• Docket Number: 92SC596
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Ralph S. ALLEN, Respondent.
• Court: Colorado Supreme Court

Page 379

868 P.2d 379

The PEOPLE of the State of Colorado, Petitioner, v.Ralph S. ALLEN, Respondent.

No. 92SC596.

Supreme Court of Colorado En Banc.

Jan. 10, 1994.

Rehearing Denied Feb. 28, 1994.

David J. Thomas, Dist. Atty., First Judicial Dist., and Donna Skinner Reed, Chief Appellate Deputy Dist. Atty., Golden, for petitioner.

David F. Vela, Colorado State Public Defender, and Kathleen A. Lord, Deputy State Public Defender, Denver, for respondent.

Justice ERICKSONdelivered the Opinion of the Court.

We granted certiorari to review People v. Allen, 843 P.2d 97(Colo.App.1992)(Allen II ), and now reverse and remand with directions.In People v. Allen, 787 P.2d 174(Colo.App.1989)(Allen I ), the court of appeals, relying on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306(1932), held that Ralph Allen(Allen) could be prosecuted for burglary, menacing, mischief, and trespassing even though he was previously convicted of contempt of court based on the same criminal episode.A jury acquitted Allen of second degree burglary and criminal mischief and convicted Allen of criminal trespass and misdemeanor menacing.However, after Allen I was decided, the Supreme Court of the United States announced Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548(1990), and modified Blockburger.

In post-conviction proceedings Allen again asserted the defense of double jeopardy based on Grady and the trial court vacated his convictions.The prosecution appealed and in Allen II, based on Grady, the court of appeals reversed Allen I and affirmed the vacation of Allen's convictions on the substantive criminal charges.While review on certiorari was pending in this court, the Supreme Court of the United States overruled Grady v. Corbin in United States v. Dixon, 509 U.S. 688, ----, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556(1993), and reinstated the Blockburger test.Since Grady was overruled, and Blockburger is again the controlling precedent, Allen I was properly decided and Allen II must be reversed.Accordingly, we reverse and return this case to the court of appeals with directions to remand to the district court to reinstate Allen's judgment of conviction for criminal trespass and misdemeanor menacing.

I

Allen's wife obtained a permanent restraining order against Allen from the Jefferson County Court.The restraining order prohibited Allen from contacting his wife without first obtaining permission from the court.Following the issuance of the order, Allen went to his wife's residence, broke in, and threatened to kill her.As a result of this criminal episode, Allen was charged with second degree burglary, ¹ criminal mischief, ² and menacing; ³ subsequently, the prosecution also added the charge of criminal trespass.⁴After Allen was charged with these criminal offenses, his wife obtained a contempt citation based on Allen's violation of the permanent restraining order.On January 11, 1988, the Jefferson County Court conducted an evidentiary hearing and found that Allen had been served with a copy of the order and had violated the order.The court found Allen in contempt of court and sentenced him to six months in jail.

Prior to trial on the substantive offenses, Allen filed a motion to dismiss the four substantive criminal charges.He asserted that prosecution on the charges is barred by the Double Jeopardy Clauses of the United States and Colorado Constitutions.U.S. Const. amend. V;Colo. Const. art. II, § 18.The trial court held that Allen was already punished in the contempt proceeding for the conduct underlying the criminal charges and dismissed the case.The court of appeals, guided by the "same elements" test set forth in Blockburger, held that the Double Jeopardy Clause did not bar the subsequent prosecution and ordered the trial court to reinstate the charges against Allen.Allen I, 787 P.2d at 175-76.

Allen was tried on the four substantive charges and was found guilty by a jury of first degree criminal trespass and misdemeanor menacing, and not guilty of second degree burglary and criminal mischief.The court sentenced Allen to four years in the Department of Corrections and six months in the county jail.After sentencing, Allen filed a motion for post-conviction relief which the trial court denied.Allen appealed, and on May 29, 1990, while the appeal was pending, Grady v. Corbin was decided and the Blockburger test was modified.Grady, 495 U.S. at 521, 110 S.Ct. at 2093.Consequently, Allen claimed that his convictions must be vacated because they were barred by Grady.The court of appeals granted a limited remand to the trial court for the purpose of ruling on Allen's double jeopardy motion which was predicated on Grady.The trial court conducted a hearing, granted Allen's motion, and vacated the judgment of conviction and sentences finding that the double jeopardy principles announced in Grady barred the subsequent prosecution.

The prosecution appealed the trial court's order vacating the charges against Allen.In Allen II, based on Grady, the court of appeals affirmed the trial court's dismissal of the substantive charges.The prosecution petitioned for, and we granted certiorari.Allen II, 843 P.2d at 101.On June 28, 1993, Grady v. Corbin was overruled by United States v. Dixon, 509 U.S. 688, ----, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556(1993).

II

The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused against being twice placed in jeopardy for the same offense.⁵In some contexts, we have adopted a more protective standard for what constitutes the same offense under the Colorado Constitution than the federal standard.We have, however, "adhered to the federal 'same offense' standard for purposes of the double jeopardy prohibition against successive prosecutions for separate statutory crimes."Boulies v. People, 770 P.2d 1274, 1278(Colo.1989);see alsoPeople v. Williams, 651 P.2d 899, 902(Colo.1982);People v. Bugarin, 181 Colo. 62, 65, 507 P.2d 875, 877(1973).Because the issue on appeal involves successive prosecutions for separate statutory crimes, the federal standard is the applicable standard.⁶

The Supreme Court of the United States has previously applied the "same elements" test to determine whether two or more offenses are the "same offense."Blockburger v. United States set forth the same elements test:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.The Blockburger test states that double jeopardy does not bar a subsequent prosecution where at least one of the elements of the offense in the second prosecution is different from the elements of the offense in the first prosecution.⁷The fact that the offending conduct which violated multiple statutes involved only one criminal episode is not relevant.

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187(1977), the Supreme Court, relying on Blockburger, held that a subsequent prosecution for a greater offense after a conviction for a lesser-included offense violates the Double Jeopardy Clause because they are the same statutory offenses.Id. at 166, 97 S.Ct. at 2225.In Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054(1977)(per curiam), the Court held "the Double Jeopardy Clause bars prosecution of the lesser crime after conviction of the greater one."⁸Id.

Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548(1990), expanded the Blockburger test.The defendant, Corbin, drove his car across a double line of a highway and struck two oncoming vehicles.The defendant pleaded guilty to two misdemeanor traffic charges.Subsequently, he was indicted and convicted of assault and homicide.The Blockburger test was modified on the grounds that it was an insufficient mechanism to resolve certain double jeopardy issues.Although the Court retained the Blockburger test, it engrafted a second step on the process of determining whether a crime is the "same offense" under the Double Jeopardy Clause.The Supreme Court held: "The Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted."Grady, 495 U.S. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d 548(emphasis added).Thus, the Court shifted from a same elements analysis to a conduct analysis.Because the prosecution had conceded that the conduct it would use to establish the essential elements of the homicide and assault offenses was the same as the conduct for which the defendant had been previously convicted, the Court concluded that the Double Jeopardy Clause barred the defendant's subsequent prosecution.

The Court overruled Grady in Dixon and held that the applicable test in determining what constitutes the "same offense" is the Blockburger test as it existed prior to Grady.Dixon, 509 U.S. at ----, 113 S.Ct. at 2860.

III

In Allen I, the court of appeals relied on Blockburger and determined that Allen could be tried for the substantive criminal offenses even though he had been convicted of contempt.Implicit in the analysis of Allen I is the conclusion that Harris does not alter the outcome of this case.⁹We agree with the analysis in Allen I.

A

Allen I was predicated on the Blockburger test.Allen I, 787 P.2d at 175-76.The court of appeals...