Schultz v. State

• Decision Date: 04 March 1988
• Docket Number: No. 87-113,87-113
• Citation: Schultz v. State, 751 P.2d 367 (Wyo. 1988)
• Parties: Fred SCHULTZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 367

751 P.2d 367

Fred SCHULTZ, Appellant (Defendant), v.The STATE of Wyoming, Appellee (Plaintiff).

No. 87-113.

Supreme Court of Wyoming.

March 4, 1988.

H. Steven Brown of Brown, Raymond & Rissler, P.C., Casper; and Martin J. McClain, Public Defender Program, Cheyenne, for appellant(defendant).

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Michele J. Neves, Student Intern, Cheyenne, for appellee(plaintiff).

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Chief Justice.

This appeal is a double-jeopardy challenge to a dual conviction of felony murder and conspiracy to commit aggravated robbery.AppellantFred Schultz received consecutive sentences of life in prison and twenty to twenty-five years respectively.Appellant's sole issue on appeal is:

"Whether the Judge's decision to sentence Appellant to consecutive sentences for felony murder and the underlying felony violated the double jeopardy clauses of the United States and Wyoming Constitutions."

We affirm.

An amended information filed in Campbell County District Court on September 22, 1986, charged appellant with three felonies.He allegedly committed felony murder in violation of § 6-2-101, W.S.1977(June 1983 Replacement);¹ to have been an accessory to a different felony murder in violation of § 6-2-101 and 102, W.S.1977(June 1983 Replacement); and, to have conspired to commit aggravated robbery in violation of §§ 6-1-303 and 6-2-401(c)(ii), W.S.1977(June 1983 Replacement).²A plea bargain was arranged in which appellant agreed to plead guilty to one count of felony murder and one count of conspiracy to commit aggravated robbery.The aggravated robbery was the underlying felony for the felony murder.In return, the state agreed not to seek the death penalty on the felony murder charge, and to drop the accessory to felony murder charge.After the guilty pleas and convictions, a sentencing hearing took place on March 9, 1987.Counsel presented oral argument and the trial court sentenced appellant as described above.

Under the Fifth Amendment to the United States Constitution, a person shall not " * * * be subject for the same offense to be twice put in jeopardy of life or limb.* * * " The double-jeopardy clause of the Fifth Amendment to the United States Constitution applies to the states through the Fourteenth Amendment.Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716(1969).Art. 1, § 11 of the Constitution of the State of Wyoming also proscribes double jeopardy when it provides, " * * * nor shall any person be twice put to jeopardy for the same offense.* * * " These provisions have long been held to protect an accused against: a second prosecution for the same offense after having been acquitted on that offense; a second prosecution for the same offense after a conviction on that offense; and relevant to the issue in this case, multiple punishments for the same offense in a single trial.Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194(1977);andBirr v. State, Wyo., 744 P.2d 1117, 1119(1987).

Appellant argues that consecutive punishments for a conviction of conspiracy to commit a felony and a conviction of felony murder must merge when the target felony in the conspiracy is the underlying felony in the felony murder.This conclusion is urged under either of two analyses: (1) the "different evidence test" where merger occurs if the same evidence is used to prove different crimes; and (2) the "transaction rule" where merger occurs if separately charged crimes arise out of the same transaction.Both of these approaches are derivations of the language in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309(1932);³seeState v. Carter, Wyo., 714 P.2d 1217, 1222(1986).

Applying these analyses to the facts in this case places the cart squarely in front of the horse because it advocates resorting to Blockburger analysis in the first instance when legislative intent is examined.This is not the proper application of Blockburger.Blockburger is only a tool for determining legislative intent from the face of two or more statutes or provisions, and it should only be used in certain limited circumstances.The threshold determinations that must be made before resorting to Blockburger are critical, and we will use this case to explain them.

The starting point, when analyzing a multiple punishment challenge, lies in recognizing that we defer to a clear expression of legislative intent to impose multiple penalties for criminal conduct when the penalties are imposed in a single trial.Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535, 543-544(1983).In other words, double-jeopardy prohibitions are only offended when a single trial results in one defendant receiving multiple penalties not authorized by the legislature.SeeThomas, A Unified Theory of Multiple Punishment, 47 Univ.Pitt.L.Rev. 1, 55(1985).

Our task in these cases then is to determine two aspects of legislative intent: First, we determine the offense which the legislature proscribes in each relevant statute or provision.Second, we determine what punishment(s)the legislature metes out for the offense each statute or provision proscribes.⁴

Our well-established rules of statutory interpretation apply in this context.We begin by looking to the plain language of the statute giving the words their plain and ordinary meaning.Hurst v. State, Wyo., 698 P.2d 1130, 1132-1133(1985).We viewa statute in terms of its object and purpose.Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275, 284(1981);Birr v. State, supra at 1121;Hurst v. State, supra at 1132.This examination must take place before we even consider resorting to Blockburger.

" * * * We have recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.Missouri v. Hunter, 459 U.S. 359, 368, 74 L.Ed.2d 535, 103 S.Ct. 673(1983);Albernaz v. United States, 450 U.S. 333, 340, 67 L.Ed.2d 275, 101 S.Ct. 1137[1143](1981);Whalen v. United States, 445 U.S. 684, 691-692, 63 L.Ed.2d 715, 100 S.Ct. 1432[1437-38](1980). * * * "(Emphasis added.)Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2412, 85 L.Ed.2d 764, 771-772(1985).

See alsoIannelli v. United States, 420 U.S. 770, 785-786, 95 S.Ct. 1284, 1293-1294, 43 L.Ed.2d 616, 627-628(1975).Cf.Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740(1985).

The plain language of § 6-1-303, ⁵ and its obvious object and purpose, settle the multiple punishment challenge in this case.The offense proscribed by § 6-1-303 is the inchoate act of agreeing with one or more persons to commit a crime.The punishment for committing this offense is the same as the penalty for the most serious crime that is an object of the conspiracy, in this case an aggravated robbery.§ 6-1-304, W.S.1977(June 1983 Replacement);and§ 6-2-401(c).The illegal agreement and the stated punishment constitute one conviction for conspiracy that does not merge with other substantive offenses.

This conclusion is also adhered to in a long line of federal cases interpreting a very similar general conspiracy statute.⁶In Iannelli v. United States, supra, 420 U.S. at 791, 95 S.Ct. at 1296, 43 L.Ed.2d at 630, the United States Supreme Court held that the crime of general conspiracy under 18 U.S.C. § 371(1982), could be punished independently from a violation of another federal criminal statute, making it illegal for five or more persons to participate in a gambling business.Other cases interpreting 18 U.S.C. § 371 in a similar fashion include: United States v. Feola, 420 U.S. 671, 687, 693, 95 S.Ct. 1255, 1268, 43 L.Ed.2d 541, 554(1975);Pinkerton v. United States, 328 U.S. 640, 643-648, 66 S.Ct. 1180, 1181-1184, 90 L.Ed. 1489, 1494-1497(1946);Braverman v. United States, 317 U.S. 49, 53-55, 63 S.Ct. 99, 101-102, 87 L.Ed. 23, 28-29(1942), and cases cited therein.

Based on the plain meaning of the language in § 6-1-303, taken in light of its object and purpose, we hold that a general conspiracy conviction will support independent punishment.In this case specifically, this holding means that a conviction for conspiracy to commit an aggravated robbery and a conviction for felony murder resulting from that aggravated robbery do not violate the prohibition against double-jeopardy.SeeState v. Carey, 285 N.C. 509, 206 S.E.2d 222(1974), later app. 288 N.C. 254, 218 S.E.2d 387, vacated in part on other grounds428 U.S. 904, 96 S.Ct. 3209, 49 L.Ed.2d 1209(1975).

Further, the fact that § 6-1-303, like 18 U.S.C. § 371, requires the prosecution to show some overt act by one of the conspirators to make out a prima facie case of conspiracy does not mandate a merger.As we stated above, the offense proscribed by § 6-1-303 is criminal agreement.The overt act requirement serves the distinct function of proving that the criminal agreement was in some way acted upon.Any overt act, whether criminal in itself or not, fulfills that aspect of a prima facie case of conspiracy:

" * * * It is not necessary that an overt act be the substantive crime charged in the indictment as the object of the conspiracy.Pierce v. United States, 252 U.S. 239, 244, 40 S.Ct. 205 , 64 L.Ed.2d 542, 546[1920];United States v. Robinowich, 238 U.S. 78, 86, 35 S.Ct. 682 , 59 L.Ed.2d 1211[1915].Nor, indeed, need such an act, taken by itself, even be criminal in character.Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed.2d 23.The function of the overt act in a conspiracy prosecution is simply to manifest 'that the conspiracy is at work,'Carlson v. United States, 10 Cir., 187 F.2d 366, 370[1951], and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no...