Simonds v. State

• Decision Date: 29 October 1990
• Docket Number: No. 89-101,89-101
• Citation: 799 P.2d 1210
• Parties: Brett SIMONDS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1210

799 P.2d 1210

Brett SIMONDS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 89-101.

Supreme Court of Wyoming.

Oct. 29, 1990.

Leonard Munker, State Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Theodore B. D'Arcy (argued), Student Intern, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Thomas Smith (argued), Student Intern, for appellee.

Before CARDINE, C.J. ^* , and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Justice.

Appellant Brett Simonds was sentenced to concurrent terms of imprisonment following his convictions for aggravated burglary and interference with a peace officer. In Simonds v. State, 762 P.2d 1189 (Wyo.1988), he successfully challenged the aggravated burglary conviction and the life sentence imposed for that offense pursuant to Wyoming's "habitual criminal" statute, W.S. 6-10-201. This court, however, upheld his convictions with respect to the lesser-included offense of simple burglary and with respect to the charge of interference with a peace officer and remanded solely for resentencing on the burglary charge. Appellant now challenges the order of the district court on remand sentencing him to six to eight years for burglary, reducing his nine to ten year sentence for interference with a peace officer to six to eight years, and ordering those terms to be served consecutively.

Simonds was arrested while in the course of burglarizing a bar. Shortly afterwards, as the arresting officer attempted to use the establishment's telephone, Simonds struck him in the jaw. He was charged with interference with a peace officer and, due to the bodily injury inflicted on the officer, aggravated burglary. We held that the commission of the burglary had been terminated by the arrest and that Simonds' assault on the officer, therefore, took place after the burglary. Because, under the relevant statute, simple burglary is elevated to aggravated burglary only by the occurrence of aggravating circumstances "in the course of committing the crime of burglary," we also held that Simonds could not properly be convicted of aggravated burglary. Since his sentence as a habitual criminal was dependent upon such a conviction, that sentence was improper. However, we found sufficient evidence to sustain his conviction for the crime of simple burglary and remanded for sentencing on that charge.

Appellant raises the following questions to be determined by this appeal:

"I. Did the district court have the authority to alter appellant's sentence for interference with a peace officer when the conviction was affirmed by the supreme court and the court did not specifically remand the conviction for resentencing.

"II. Did the district court judge violate appellant's constitutional right against double jeopardy when he increased appellant's sentence for interference with a peace officer by improperly changing the sentence from running concurrent to running consecutive with appellant's burglary sentence."

Appellee, State of Wyoming, would have us answer those questions in this manner:

"I. There was no increase in the sentence for interference with a peace officer and the district court acted in substantial compliance with this court's mandate in Simonds v. State, 762 P.2d 1189 (Wyo.1988).

"II. There was no increase in the sentence for interference with a peace officer and the district court did not violate double jeopardy principles when it sentenced appellant."

We reverse.

The double jeopardy provisions of the Fifth Amendment to the Constitution of the United States and Art. 1, § 11 of the Wyoming Constitution have the same meaning and are coextensive in application. Lauthern v. State, 769 P.2d 350, 353 (Wyo.1989); Vigil v. State, 563 P.2d 1344, 1350 (Wyo.1977). Each provision affords three distinct protections to the accused. Each protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Lauthern, 769 P.2d at 353; Howard v. State, 762 P.2d 28, 31 (Wyo.1988); Jones v. Thomas, 491 U.S. ----, 109 S.Ct. 2522, 2525, 105 L.Ed.2d 322 (1989); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). It is the third of these protections which appellant claims was denied him. He asserts that his sentence for interfering with a peace officer, originally to be served concurrently with a sentence on another charge, was unconstitutionally increased following his appeal by the subsequent order making those sentences consecutive.

In Pearce, the United States Supreme Court noted:

"Long-established constitutional doctrine makes clear that, beyond the requirement already discussed, the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction. * * *

"Although the rationale for this 'well-established part of our constitutional jurisprudence' has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction, as we have recognized in Part I of this opinion. But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean. The conviction has been set aside and the unexpired portion of the original sentence will never be served. A new trial may result in an acquittal. But if it does result in a conviction, we cannot say that the constitutional guarantee against double jeopardy of its own weight restricts the imposition of an otherwise lawful single punishment for the offense in question." 395 U.S. at 719-21, 89 S.Ct. at 2077-78 (emphasis in original).

The Court, however, also indicated that the imposition of a heavier sentence upon reconviction, to the extent that it may have been motivated by vindictiveness for the defendant's successful exercise of his right to appeal, does implicate due process concerns. The Court observed that the threat of being penalized for the exercise of constitutional rights would deter defendants from attacking their convictions and, thus, unconstitutionally impede their open and equal access to the courts. Accordingly, the Court held:

"In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." 395 U.S. at 726, 89 S.Ct. at 2081 (emphasis added).

Had appellant's initial appeal been resolved by a remand for resentencing on all charges, Pearce would clearly control the resolution of the present appeal. Just as a remand for retrial would "wipe the slate clean" of a challenged conviction and sentence, so too would the finality of the initial sentencing be nullified by a remand for resentencing on all counts. See United States v. Jefferson, 714 F.2d 689 (7th Cir.1983); McClain v. United States, 676 F.2d 915 (2d Cir.1982); United States v. Busic, 639 F.2d 940 (3d Cir.1981). The district court would clearly have been justified, within the constraints of Pearce's due process analysis, to change appellant's concurrent sentences so as to run consecutively. Thus, we could have decided the present case merely by determining whether the required justification for an increased sentence appeared on the record. Perhaps unfortunately, however, we did not remand the district court's original "sentencing package," in its entirety, for resentencing. Because the present case, therefore, also requires us to consider the district court's authority to augment the portion of that "package" which was undisturbed by our decision, we find that Pearce is not entirely adequate to our purpose. Accordingly, we must more closely examine how the district court's sentencing authority relates to double jeopardy analysis.

In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Court determined that the prospect of increased punishment upon resentencing raised a double jeopardy problem only to the extent of a defendant's reasonable expectations that his original sentence had become final. 449 U.S. at 134-39, 101 S.Ct. at 435-38. With respect to those instances where a defendant initiates an appeal, as was the case in Pearce, it is evident that such a defendant harbors no justifiable expectation in the finality of the original sentence. In fact, his aim is for the appellate court to remove that finality, to "wipe the slate clean." To the extent the appellate court does so and authorizes the trial court to consider the matter anew, no double jeopardy violation flows from the receipt of a greater sentence following appeal. DiFrancesco extended this "justifiable expectation of finality" reasoning to cases where, under a federal statute granting the United States a limited right to appeal sentencing decisions, the prosecution initiated an appeal. At issue in that case were certain provisions of the Organized Crime Control Act of 1970, specifically 18 U.S.C. §§ 3575 and 3576, which contained a definition of "dangerous special offender," authorized enhanced sentencing for convicted dangerous special offenders, and granted the United States the right, under specified conditions,...