State v. Aspen, 15612

• Decision Date: 21 May 1987
• Docket Number: No. 15612,15612
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. William Frances ASPEN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 881

412 N.W.2d 881

STATE of South Dakota, Plaintiff and Appellee, v. William Frances ASPEN, Defendant and Appellant.

No. 15612.

Supreme Court of South Dakota.

Considered on Briefs May 21, 1987.

Decided Sept. 23, 1987.

Grant E. Gormley, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Richard Braithwaite of Braithwaite Law Offices, Sioux Falls, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL BACKGROUND

Defendant was charged for the third time, with Driving While Under the Influence of an Alcoholic Beverage (DWI). He was convicted via enhancement of a class six felony. Thereafter, he filed a state habeas corpus action alleging that one of the underlying DWI charges was constitutionally infirm as the record of that charge reflected he pleaded guilty without benefit of counsel. The habeas court granted Defendant's Writ of Habeas Corpus and remanded the case to the trial court for resentencing. Defendant alleges the trial court erred when it judicially noticed the criminal file corresponding to Defendant's earlier DWI conviction from which the presence of counsel, or waiver thereof, issue comes. Included in the judicially noticed criminal file was a Waiver of Counsel document signed by Defendant. We reverse on the basis of a violation of the double jeopardy clause.

FACTS

Defendant, born October 1, 1934, is a retired truck driver and heavy equipment operator. He was forced into retirement in 1984 due to a disabling back condition. Defendant has two prior DWI convictions, one on December 1, 1980, and the second on May 3, 1983.

On April 6, 1985, Defendant was again arrested for DWI. He was charged by indictment of DWI and further charged by Part II Information as habitual offender. ¹ On September 27, 1985, a jury found Defendant guilty of DWI. After the jury was excused, Defendant admitted he was the person named in the two prior convictions. Sentencing was delayed pending preparation of a presentence report. On October 25, 1985, Defendant was sentenced to serve two years in the Penitentiary. Jury trial was held and sentence pronounced before the same trial judge.

On September 5, 1986, Defendant filed a state habeas corpus action. ² On October 22, 1986, Defendant filed his Amended Petition For Writ of Habeas Corpus, hinging his claim on the following assertion:

That said conviction is invalid in that the trial court improperly used a prior DWI misdemeanor conviction for enhancement purposes in that the record before the trial court, showed that with respect to one of the prior convictions petitioner appeared without benefit of counsel.

Both parties waived hearing and agreed to submit the case on briefs to the court, the Honorable Robert L. Tschetter, presiding. Defendant argued: (1) State failed to show he was represented by counsel during his DWI conviction on December 1, 1980; (2) there was a defect in the enhancement-sentencing portion of this matter; and (3) the conviction should be vacated. ³ State flatly admitted the sentencing defect but asserted that vacation of conviction was improper and urged the court to release Defendant pending resentencing before the trial judge, at which time State could present evidence as to whether Defendant was represented by counsel or knowingly waived that right. On November 25, 1986, the habeas court entered its Findings of Fact and Conclusions of Law, holding that Defendant was being illegally detained because he was serving time under an invalid sentence. The court additionally concluded:

That it is not necessary for this court to decide whether, upon remand, it would be permissible for the respondent to offer additional evidence on the issue of whether the 1980 DWI conviction may be used for enhancement purposes, and the court declines to decide that issue. Rather, the court leaves that issue to be determined by the sentencing judge after the case is remanded to him.

An accompanying Order of Discharge and Remand was issued.

On December 5, 1986, the Resentencing Hearing was held before the same trial judge who presided over the jury trial and who earlier pronounced sentence. State was permitted to supplement the record with criminal file 80-577, on the subject of Defendant's December 1, 1980 DWI conviction, which included a Waiver of Counsel document signed by Defendant. Defendant was then resentenced to two years in the Penitentiary with credit given for time already served.

Defendant appeals.

DECISION

Defendant bases his argument on the fact that his two-year sentence (enhanced via a third DWI conviction) was faulty because the December 1980 DWI conviction was obtained without the record reflecting that he (1) was represented by counsel or (2) waived legal representation. He relatedly contends the sentencing court erroneously permitted State to introduce a prior DWI case file, which included the Waiver of Counsel form. Defendant concludes his right against double jeopardy was violated and urges this Court to remand the case for resentencing on the underlying misdemeanor conviction. We agree.

"Both our state and federal constitutions contain prohibitions against double jeopardy. U.S. Const. amend. V; S.D. Const. art. VI, Sec. 9." State v. Biays, 402 N.W.2d 697, 699 (S.D.1987). ⁴ The double jeopardy clause shields an accused against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense post-conviction; and (3) multiple punishments for the same offense. State v. Grey Owl, 316 N.W.2d 801, 803 (S.D.1982). Although Defendant never specifies which one of three double jeopardy protections was violated, we presume he asserts that he is twice being prosecuted for the same offense post-conviction. Defendant advocates that any evidence relating to waiver of counsel should have been brought before the court at the time he acknowledged he was the same individual formerly convicted of crimes identified in the Part II Information. Defendant alleges that State's production of that evidence at the December 5, 1986 Resentencing Hearing constituted a double jeopardy violation.

The United States Supreme Court has written "it [is] unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one." Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261, 19 L.Ed.2d 319, 324 (1967). The High Court in Burgett further noted "[p]resuming waiver of counsel from a silent record is impermissible." 389 U.S. at 114-15, 88 S.Ct. at 262, 19 L.Ed.2d at 324. In the present case, the record clearly reflects that Defendant was not represented by counsel. The habeas court determined Defendant was being "illegally detained" in that he was serving time under an invalid sentence. Therefore, this appeal distills, ultimately, into this question: Was the resentencing court correct in admitting the Waiver of Counsel form?

Defendant primarily relies on a string of cases flowing from the United States Court of Appeals, Fifth Circuit. See Stokes v. Procunier, 744 F.2d 475 (5th Cir.1984); French v. Estelle, 692 F.2d 1021 (5th Cir.1982), mod. on other grounds, 696 F.2d 318 (5th Cir.), cert. denied, 461 U.S. 937, 103 S.Ct. 2108, 77 L.Ed.2d 313 (1983); Bullard v. Estelle, 665 F.2d 1347 (5th Cir.1982), vacated and remanded, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983), vacated and remanded, 708 F.2d 1020 (5th Cir.1983). These habeas cases deal with situations where State failed to set forth, with sufficient clarity, the chronology of commission of prior crimes as required by the applicable enhancement statute. Uniformly, the court held: "[t]he double jeopardy clause would prohibit the resentencing of the petitioner ... if the State failed to provide sufficient evidence of habitual offender status at the first trial." French, 692 F.2d at 1023 (citing Bullard, 665 F.2d 1347). ⁵ Moreover, "because the petitioner was once subjected to an enhancement proceeding where the State failed to produce sufficient evidence of habitual offender status to support [the] sentence, the double jeopardy clause bars a second trial-like enhancement proceeding on the basis of the one prior [crime] insufficiently proven at the earlier trial." French, 692 F.2d at 1025 (footnote omitted). See Bullard, 665 F.2d at 1359 (where the Court notes that it was State's responsibility to present all the necessary evidence and State erred when it failed to marshal the required evidence). See also Stokes, 744 F.2d at 483-84.

Defendant cites the above cases persuasively. He has been through one enhancement proceeding. State now requests a second enhancement proceeding. State knew what it had to prove to achieve enhancement, yet it failed to show that Defendant either had counsel or intelligently waived same. In effect, State failed in its first evidentiary showing and now wants a second bite of the apple. We cannot condone this procedure. State must be prevented from ameliorating its weak and deficient original evidentiary proof to now achieve enhancement through a subsequent hearing, at which previously unoffered evidence is admitted. In effect, the prosecution had its day in court and now seeks another and this is exactly the ill which the double jeopardy clause forbids. United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). We are convinced that under the facts of this case, State was given a fair opportunity to offer whatever proof it had assembled. State cannot claim prejudice when it was given ample opportunity to present its case and simply failed to do so. In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the United States Supreme Court made it abundantly clear that once the State has been given a fair opportunity to offer whatever proof it can assemble, it is not thereafter entitled to a second opportunity.

State answers Defendant's contentions by arguing that Defendant should have raised his lack...