State v. Cobb, 75685

• Decision Date: 26 April 1994
• Docket Number: No. 75685,75685
• Citation: 875 S.W.2d 533
• Parties: STATE of Missouri, Respondent, v. Alan Walter COBB, Appellant. Alan Walter COBB, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 533

875 S.W.2d 533

STATE of Missouri, Respondent, v. Alan Walter COBB, Appellant.

Alan Walter COBB, Appellant, v. STATE of Missouri, Respondent.

No. 75685.

Supreme Court of Missouri,

En Banc.

April 26, 1994.

Rosalynn Koch, R. Cristine Stallings, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Saleeby, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

HOLSTEIN, Judge.

Defendant Alan Walter Cobb was convicted of driving while intoxicated under § 577.010, RSMo 1986, and sentenced to four years imprisonment as a persistent intoxicated driving offender under § 577.023, RSMo 1986. On appeal to the Court of Appeals, Eastern District, Cobb argued that the state failed to prove the required number of prior convictions to establish his status as a persistent offender and that the prohibition against double jeopardy prevents the state from proving prior convictions at a subsequent proceeding. He also contended that the trial court should have ordered a new trial because the prosecutor made inappropriate comments during closing argument. The court of appeals, pursuant to Rule 83.02, transferred the case to this Court because of the general interest and importance of the double jeopardy issue. The judgment of conviction is affirmed; the judgment of sentence is reversed, and the case is remanded to the trial court for resentencing.

I.

A.

The trial court found Cobb to be a persistent DWI offender because the state proved two prior intoxication-related offenses committed within a ten-year period. While Cobb's case was pending before the Court of Appeals, Eastern District, this Court determined in State v. Stewart, 832 S.W.2d 911 (Mo. banc 1992), that Missouri's persistent DWI offender statute, § 577.023, can only be invoked by proof of three prior convictions committed within a ten-year period. Id. at 913. This Court made Stewart applicable to all pending cases not finally adjudicated. A case is "pending" until direct review is exhausted, State v. Sumlin, 820 S.W.2d 487, 490 (Mo. banc 1991), therefore, Cobb's case, still on direct appeal, is subject to the Stewart decision. Cobb correctly argues, and the state concedes, that Stewart precludes a finding that Cobb is a persistent offender because the state proved only two prior convictions.

The state invites us to overrule Stewart. We decline to do so, being unpersuaded by the state's several arguments, which were carefully considered when we unanimously decided Stewart two years ago. Alternatively, the state asks us to remand the case to allow the state the opportunity to prove a third prior conviction. In response, Cobb asserts that a remand for this purpose would violate his Fifth Amendment right to be free from double jeopardy.

B.

In relevant part, the Fifth Amendment states: "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Fourteenth Amendment extends the double jeopardy prohibition to the states. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

1.

In an unbroken chain of authority prior to 1981, the United States Supreme Court held that the Double Jeopardy Clause imposes no absolute prohibition against a harsher sentence on retrial after a defendant has succeeded in having an original conviction set aside. United States v. DiFrancesco, 449 U.S. 117, 133, 137-38, 101 S.Ct. 426, 435, 437-38, 66 L.Ed.2d 328 (1980); Chaffin v. Stynchcombe, 412 U.S. 17, 23-24, 93 S.Ct. 1977, 1981, 36 L.Ed.2d 714 (1973); North Carolina v. Pearce, 395 U.S. 711, 720, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969); Stroud v. United States, 251 U.S. 15, 18, 40 S.Ct. 50, 51-52, 64 L.Ed. 103 (1919). Notwithstanding these precedents, when a Missouri defendant was convicted of capital murder, sentenced to life imprisonment without The court in Bullington and Rumsey did not overrule DiFrancesco, Chaffin, Pearce or Stroud but distinguished them:

                parole for fifty years and the conviction was reversed due to trial error, the United States Supreme Court held in 1981 that the Fifth Amendment prohibited the state from seeking the death sentence on retrial.  Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).  The decision appeared to be based on the rationale that under the Missouri sentencing procedure, a failure to obtain a death penalty at the first trial "constitutes a decision that the state failed to prove its case."  451 U.S. at 443, 101 S.Ct. at 1860.   Thus, jeopardy attached and a second sentencing was impermissible.  The Bullington holding was extended to judge sentencing in Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984).  But for the fact that the sentencer was a judge, the court noted that the Arizona capital sentencing procedure "did not render the proceeding any less like a trial."  467 U.S. at 210, 104 S.Ct. at 2309
                

In Pearce, Chaffin and Stroud there was no separate sentencing proceeding at which the prosecution was required to prove--beyond a reasonable doubt or otherwise--additional facts in order to justify the particular sentence. In each of those cases, moreover, the sentencer's discretion was essentially unfettered. In Stroud, no standards had been enacted to guide the jury's decision. In Pearce, the judge had a wide range of punishments from which to choose with no explicit standards imposed to guide him. And in Chaffin, the discretion given the jury was extremely broad.

451 U.S. at 439, 101 S.Ct. at 1858.

DiFrancesco was distinguished from Bullington on other grounds. In DiFrancesco, the statute under consideration provided for a separate and bifurcated sentencing at which the prosecution was required to prove additional facts in order to enhance the range of punishment up to a maximum of twenty-five years. 18 U.S.C. § 3575(b) (1970) (repealed 1986). The Bullington court found that because the federal procedure at issue in DiFrancesco included appellate review of the sentence on the record of the sentencing court and because "the choice presented to the federal judge under § 3575 is far broader than faced by the state jury at" a capital sentencing, that DiFrancesco was distinguishable from Bullington. 451 U.S. at 440, 101 S.Ct. at 1859.

2.

The question here is whether Missouri's persistent DWI offender sentencing procedure is distinguishable from our capital sentencing procedure to which double jeopardy attaches. Defendant concedes the record below supports a conclusion that he is a prior offender. The range of punishment for a prior offender requires a minimum of forty-eight consecutive hours imprisonment, and such offender may be sentenced to up to a year imprisonment and fined $1,000. §§ 558.011.1(5), 560.016.1(1), and 577.023.2, RSMo 1986. By contrast, a persistent offender is guilty of a class D felony and may be sentenced to up to five years imprisonment or fined up to $5,000. §§ 558.011.1(4), 560.011.1(1), and 577.023.3, RSMo 1986. The minimum punishment for a persistent offender under § 577.023.3 is one day in jail. There is no significant difference in the form of punishment that may be assessed against a prior offender and the form of punishment that may be assessed against a persistent offender, only a difference in the range of punishment.

In the sentencing of a persistent offender, the trial court's discretion is essentially unfettered. The judge has a wide range of punishment from which to choose and is not inhibited by explicit standards imposed by statute. In addition, as in DiFrancesco, the choice presented the trial judge in sentencing persistent offenders is far broader than that faced by a jury in sentencing a defendant to death. For the same reasons that Bullington is distinguishable from DiFrancesco, Pearce, Chaffin and Stroud, Bullington is distinguishable from this case. Therefore, applying the rationale of Bullington, double jeopardy does not attach to Missouri's noncapital persistent offender sentencing.

3.

Although the recent case of Caspari v. Bohlen, 510 U.S. 383, 114 S.Ct. 948, 127 Both Bullington and Rumsey were capital cases, and our reasoning in those cases was based largely on the unique circumstances of a capital sentencing proceeding ... "[T]he decisions of this court clearly establish that a sentenc[ing in a noncapital case] does not have the qualities of constitutional finality that attend an acquittal."

L.Ed.2d 236 (1994), was decided on other grounds, the United States Supreme Court provided guidance to courts faced with the issue of double jeopardy in noncapital cases. As noted in Caspari,

510 U.S. at ----, 114 S.Ct. at 954, quoting Pennsylvania v. Goldhammer, 474 U.S. 28, 30, 106 S.Ct. 353, 353-54, 88 L.Ed.2d 183 (1985). We conclude from this language that the United States Supreme Court does not consider a determination of sentencing in a noncapital case as a second trial to which double jeopardy applies. Indeed, the Supreme Court in Bohlen spoke approvingly of DiFrancesco, where it upheld the constitutionality of 18 U.S.C. §§ 3575 and 3576, statutes authorizing the federal government to appeal a sentence imposed on a defendant charged as a "dangerous special offender," and allowed the court of appeals to affirm the sentence and impose a more onerous sentence or remand to the district court for further sentencing. The DiFrancesco sentencing procedure is indistinguishable from the sentencing procedure here. Until it is overruled, its authority is binding on this Court. U.S. Const., art. VI; Cooper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 1409-10, 3 L.Ed.2d 5 (1958).

4.

Sentencing in capital cases stands on a different footing than sentencing in noncapital cases. As construed, the Eighth Amendment requires that safeguards be in place to prevent the wanton and freakish imposition of the death penalty. Furman v. Georgia, 408 U.S. 238, 310, 92 S.Ct. 2726, 2762-63,...