State v. Calle

Decision Date26 January 1995
Docket NumberNo. 61536-5,61536-5
Citation888 P.2d 155,125 Wn.2d 769
CourtWashington Supreme Court
PartiesThe STATE of Washington, Respondent, v. James L. CALLE, Petitioner.

Thomas E. Doyle, Robert M. Quillian, Olympia, for petitioner.

Bernardean Broadous, Thurston County Prosecutor, James C. Powers, Deputy, Olympia, for respondent.

MADSEN, Justice.

At issue in this case is whether the Defendant's convictions for first degree incest and second degree rape violate the Fifth Amendment's protection against double jeopardy because they arose from a single act of intercourse.


James Calle, hereafter referred to as the Defendant, was originally charged with committing second degree rape by forcibly engaging in sexual intercourse with "K" on February 14, 1992. The prosecutor subsequently charged the Defendant with an additional count of first degree incest based on the same incident. The amended information alleged that "K" is the Defendant's stepdaughter and was less than 18 years old on February 14, 1992.

The jury found the Defendant guilty on both counts. The trial court determined that the current offenses encompassed the same criminal conduct. Thus, neither crime raised the offender score of the other. The trial court sentenced the Defendant to standard range sentences of 18 months for the incest and 70 months for the rape, and set the sentences to run concurrently.

The Defendant appealed, and the commissioner of the Court of Appeals affirmed his convictions in a ruling on the merits. The Court of Appeals denied the Defendant's motion to modify that ruling, whereupon the Defendant petitioned for, and was granted, review by this court.


The State argues that the multiple convictions in this case do not constitute a violation of the Fifth Amendment's double jeopardy clause since the sentences are concurrent. The first question we must answer, then, is whether double jeopardy concerns may be implicated despite the concurrent nature of the sentences.

The double jeopardy clauses of the Fifth Amendment and Const. art. 1, § 9 protect a defendant against multiple punishments for the same offense. State v. Noltie, 116 Wash.2d 831, 848, 809 P.2d 190 (1991); State v. Vladovic, 99 Wash.2d 413, 423, 662 P.2d 853 (1983). Despite this protection, the rule in this state has long been that where there are several charges against a defendant for the same act or transaction and convictions are obtained on all counts, if the sentences are made to run concurrently and do not exceed the penalty for one of the offenses of which the defendant was properly convicted, then that defendant is being punished " 'but once for his unlawful act' " and double jeopardy is not at issue. State v. Johnson, 96 Wash.2d 926, 931, 639 P.2d 1332 (1982) (quoting In re Rice, 24 Wash.2d 118, 124, 163 P.2d 583 (1945)). In Johnson, the court observed that the federal courts also do not find multiple punishment where sentences run concurrently and added that "[t]he leading Supreme Court decisions in the area of double jeopardy and multiple punishment raise the issue only in the context of 'cumulative' punishment through consecutive sentences". Johnson, 96 Wash.2d at 931, 639 P.2d 1332.

This is no longer the case. In 1985, the United States Supreme Court observed that multiple convictions whose sentences are served concurrently may still violate the rule against double jeopardy. Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 1673-74, 84 L.Ed.2d 740 (1985).

The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries the societal stigma accompanying any criminal conviction.

Ball, at 864-65, 105 S.Ct. at 1673.

Accordingly, the Court concluded that the mere fact that the sentences are concurrent will not shield multiple convictions from scrutiny under the double jeopardy clause. Both federal and state courts have cited Ball in concluding that double jeopardy concerns arise in the presence of multiple convictions, regardless of whether the resulting sentences are imposed consecutively or concurrently. See United States v. Gomez-Pabon, 911 F.2d 847, 861 (1st Cir.1990) (although defendants received concurrent rather than consecutive sentences for their dual convictions, adverse consequences still could result from the fact that two separate convictions issued), cert. denied, 498 U.S. 1074, 111 S.Ct. 801, 112 L.Ed.2d 862 (1991); United States v. Morehead, 959 F.2d 1489, 1506 (10th Cir.) (a criminal conviction, in addition to imprisonment and a penalty assessment, presents potentially adverse consequences), aff'd sub nom. United States v. Hill, 971 F.2d 1461 (1992); Chao v. State, 604 A.2d 1351, 1360 (Del.1992) ("The United States Supreme Court has held that, for purposes of double jeopardy, the term 'punishment' encompasses a criminal conviction and not simply the imposition of a sentence.") Other cases citing Ball as support for assessing double jeopardy concerns in light of multiple convictions alone include United States v. Palafox, 764 F.2d 558, 564, 80 A.L.R.Fed. 763 (9th Cir.1985); United States v. Johnson, 977 F.2d 1360, 1371 n. 6 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1024, 122 L.Ed.2d 170 (1993); United States v. Lindsay, 985 F.2d 666, 670-71 (2d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 103, 126 L.Ed.2d 70 (1993); Shields v. State, 493 N.E.2d 460 (Ind.1986); State v. Crowder, 248 Mont. 169, 810 P.2d 299 (1991); State v. Williams, 12 Conn.App. 225, 234, 530 A.2d 627 (1987); People v. Massey, 219 Ill.App.3d 909, 913, 162 Ill.Dec. 445, 579 N.E.2d 1259 (1991); Byrd v. United States, 598 A.2d 386, 393 (D.C.1991); State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673 (1987).

This court recognized the adverse consequences that could result from multiple convictions alone in State v. Johnson, 92 Wash.2d 671, 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948, 100 S.Ct. 2179, 64 L.Ed.2d 819 (1980). "Conviction in itself, even without imposition of sentence, carries an unmistakable onus which has a punitive effect and the presence of multiple convictions is apt to affect the minimum sentence set by the parole board." Johnson, 92 Wash.2d at 679, 600 P.2d 1249. Despite this discussion of adverse consequences, however, the concurrent sentence rule was reaffirmed in Johnson 3 years later. Johnson, 96 Wash.2d at 931-32, 639 P.2d 1332; but see Johnson, 96 Wash.2d at 938, 639 P.2d 1332 (Utter, J., concurring) (adverse consequences are relevant regardless of whether consecutive or concurrent sentences are imposed).

In light of Ball, this court now must take into account the punitive aspects of multiple convictions, regardless of the type of sentence imposed, when reviewing such convictions in light of the Fifth Amendment's double jeopardy clause. Although the passage of the Sentencing Reform Act of 1981 eliminates any need to consider the effect of multiple convictions on parole decisions, the stigma and impeachment value of multiple convictions remain. Thus, double jeopardy is at issue here because of the possibility that rape and incest are the same offense when they arise out of the same act of intercourse, regardless of the concurrent sentences imposed in this case. We hereby reject the concurrent sentence rule and hold that double jeopardy may be implicated when multiple convictions arise out of the same act, even if concurrent sentences have been imposed. To the extent that prior case law interpreting the Fifth Amendment conflicts with the rule of law we adopt today, it is overruled.


Before we evaluate the Defendant's convictions under the double jeopardy clause, we must briefly address his argument that grounds other than double jeopardy prohibit his convictions. The Defendant cites State v. Birgen, 33 Wash.App. 1, 3, 651 P.2d 240 (1982), review denied, 98 Wash.2d 1013 (1983) to support his position that other non-double jeopardy reasons exist on which to base review of multiple convictions.

At issue in Birgen, decided by the Court of Appeals prior to the United States Supreme Court opinion in Ball, was whether convictions for statutory rape and third degree rape arising from a single act of intercourse were prohibited. Since the sentences were concurrent, the Court of Appeals rejected a double jeopardy challenge, stating that it was "constrained" to follow the concurrent sentence rule. Birgen, 33 Wash.App. at 3, 651 P.2d 240. However, the Birgen court found "non-double jeopardy" reasons supported the challenge to the defendant's multiple convictions and remanded for resentencing on a single conviction of either statutory rape in the third degree or third degree rape. Birgen, at 14, 651 P.2d 240.

The court did not enumerate its non-double jeopardy reasons nor do we believe any exist. Rather, the Birgen court, in our view, was attempting to reach a double jeopardy analysis despite the concurrent sentence rule. Although the result in Birgen is sustainable, as we will discuss later in this opinion, we must reject the court's assertion regarding a non-double jeopardy basis for review of multiple punishments. Birgen, at 5, 651 P.2d 240. There are no non-double jeopardy reasons for reviewing multiple punishments--rather, the foundation for such review is the constitutional prohibition against double jeopardy.


As stated earlier, the guaranty against double jeopardy protects against multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, ...

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