State v. Hardesty

Decision Date09 May 1996
Docket NumberNo. 63229-4,63229-4
Citation129 Wn.2d 303,915 P.2d 1080
CourtWashington Supreme Court
PartiesThe STATE of Washington, Petitioner, v. Herbert David HARDESTY, Respondent.

Richard L. Weber, Okanogan County Prosecutor, Okanogan, for petitioner.

Scot D. Stuart, Okanogan, for respondent.

TALMADGE, Justice.

Herbert D. Hardesty (Hardesty) allegedly defrauded the trial court by failing to accurately relate his criminal history, thereby obtaining a more favorable sentence. He fully served the sentence, and now claims the double jeopardy clause of the Fifth Amendment to the United States Constitution prevents his resentencing after the State brought the alleged fraud to the attention of the trial court. The Court of Appeals agreed, holding double jeopardy forbids the vacation of a "facially valid" sentence the defendant has fully served, even though the defendant procured the "facially valid" sentence by fraud. State v. Hardesty, 78 Wash.App. 593, 599, 897 P.2d 1282 (1995).

Where a defendant defrauds a trial court in sentencing, a defendant has no expectation of finality in the sentence for purposes of the double jeopardy clause, particularly where our criminal rules provide a procedure to set aside a sentence for fraud. CrR 7.8(b)(3). However, because the State here failed to meet the requirements of CrR 7.8 to set aside the sentence for fraud, we vacate the trial court's Amended Judgment and Sentence.

ISSUES

1. Is double jeopardy violated if a defendant is resentenced after a sentence is fully served, if the defendant defrauded the trial court to obtain the original sentence?

2. Did the trial court properly conclude Hardesty defrauded the trial court here?

FACTS

On September 27, 1991, in the Okanogan County Superior Court, Hardesty pleaded guilty to second degree burglary of a residence, and, in return, the State dropped a theft charge. The plea agreement contained an agreed criminal history revealing two prior felonies. Hardesty's resulting offender score was 4, with a sentence range of 12 to 16 months. Based on his plea and criminal history, the trial court found Hardesty guilty and sentenced him to 14 months. After serving approximately nine months, Hardesty was released. He was not under community supervision.

In the 1991 agreement, Hardesty and the State certified the prosecutor's understanding of Hardesty's complete criminal history was as follows:

                Crime                                     Sentencing Date    Date of Crime
                --------------------------------------------------------------------------
                Burglary in the second degree                5 Jan 77            24 Apr 76
                Burglary in the second degree                26 Feb 88           01 Dec 82
                ----------
                In 1993, the State learned Hardesty's true criminal history included four
                felonies rather than just two
                
                Crime                                         Sentencing Date    Date of Crime
                -------------------------------------------------------------------------------
                Burglary in the second degree                     5 Jan 77            24 Apr 76
                Burglary in the second degree                     17 Nov 81           21 Sep 81
                Attempt possess a controlled sub./marijuana       21 Apr 86           24 Apr 85
                Possession of stolen property                     10 Aug 88           30 Jan 88
                ----------
                

Based upon four prior felonies, Hardesty's proper offender score in 1991 was 6, with a range of 22 to 29 months.

On May 21, 1993, the State filed a "Motion for Resentencing Pursuant to RCW 9.94A.100," which contained only a brief memorandum of authorities. The State asked the trial court to order a hearing, and requested a resentencing of Hardesty to 29 months' imprisonment based upon his additional felony convictions. The State's motion did not mention fraud, and did not meet the procedural requirements of CrR 7.8(c). On June 28, 1993, Hardesty's counsel filed a memorandum opposing resentencing, citing the Fifth Amendment double jeopardy clause and requesting specific performance of the plea agreement. Neither the State nor Hardesty filed an affidavit in support of their memoranda.

At a June 30, 1993 hearing on its motion, the State explained the prosecutor's office in 1991 had known only of the first two felony convictions because Nevada officials had not entered the others on a national computer data base. The prosecutor's office learned of the additional felonies fortuitously in 1993 when Hardesty was arrested and convicted of second degree child molestation, and the prosecutor's office asked Nevada officials for copies of his prior felony convictions. The State alleged fraud for the first time at the hearing, arguing the double jeopardy clause did not prevent resentencing because Hardesty had defrauded the court in 1991 by not disclosing his two additional felony convictions. Hardesty's counsel argued returning Hardesty to prison violated double jeopardy. However, Hardesty's counsel did not present any evidence negating the elements of the alleged fraud. The trial court granted the State's motion, orally finding Hardesty had committed fraud.

At this point, Hardesty asked to speak. He insisted any error in the 1991 criminal history was mutual, and denied intentionally or fraudulently misstating his criminal history. He explained he had been "rushed" in 1991 and had only had a few minutes to review the plea agreement. He also argued the 1991 criminal history revealed three felonies, not just two, because of the oddities of the dates on the second line (a 1982 crime for which he was sentenced in 1988). He thought the attempted possession of marijuana was only a misdemeanor. However, Hardesty does not now contest the fact he had four felony convictions prior to 1991.

The trial court adhered to its finding of fraud, and orally sentenced Hardesty to 22 months, with credit for time served. In sentencing Hardesty to the low end of the standard range, the trial court indicated it was giving Hardesty "the benefit of the doubt." Report of Proceedings (June 30, 1993), at 38. The trial court then made written findings and conclusions in this form:

The Court heard arguments of counsel and a statement from the Defendant then made the following findings of fact:

1. The Defendant pled guilty to the crime of Burglary in the Second Degree on September 27, 1991.

2. That the criminal history listed on the Plea Agreement showed two prior felony convictions for burglary in the second degree.

3. That the Defendant certified his criminal history as being accurate as indicated by his signature on the Prosecutor's Statement of Criminal History.

4. That there were two more felony convictions that the Defendant failed to disclose at the time of his plea.

5. That the Defendant's certification of the accuracy of this criminal history was a fraud upon the court.

State's Br. of Resp't, App. C. 1

The trial court entered an Amended Judgment and Sentence dated July 1, 1993, sentencing Hardesty to 22 months, consecutive to a 47-month sentence on the child molestation charge. Division Three of the Court of Appeals reversed. Acknowledging one who lies to the trial court to obtain an erroneously lenient sentence skews the plea bargain system and "cheats" society, the Court of Appeals nonetheless held the double jeopardy clause does not allow a "facially valid judgment to be vacated after an accused has fully served a facially valid sentence," even where there is fraud or perjury. Hardesty, 78 Wash.App. at 599, 897 P.2d 1282. We granted review.

ANALYSIS
A. The Double Jeopardy Clause

The double jeopardy clause of the Fifth Amendment to the U.S. Constitution protects against a second prosecution for the same offense, after acquittal, conviction, or a reversal for lack of sufficient evidence. 2 North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In these situations, a second attempt by the State to establish the defendant's guilt is unequivocally prohibited. State v. Pascal, 108 Wash.2d 125, 132, 736 P.2d 1065 (1987). The State, with all its resources, should not be allowed to repeatedly subject a person to the ordeal of trial, or by this method to enhance the possibility it will obtain the conviction of an innocent person. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 61 A.L.R.2d 1119 (1957); Pascal, 108 Wash.2d at 132, 736 P.2d 1065.

In the sentencing context, where a trial court resentences a defendant because the original sentence was erroneous, the double jeopardy analysis has evolved in recent years. Prior to United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), a number of cases had held double jeopardy applies just as strongly to sentencing as to the verdict in a trial of guilt or innocence. These cases viewed a sentencing determination as an "acquittal" as to any possible greater sentence, and held jeopardy attached to the greater sentence, preventing a later increase in the original sentence. United States v. Lundien, 769 F.2d 981, 985 (4th Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986).

DiFrancesco rejected this conception of double jeopardy, finding the distinction between a sentencing determination and a trial of guilt or innocence is fundamental, and a sentence does not have the same quality of finality as an acquittal. DiFrancesco, 449 U.S. at 132-36, 101 S.Ct. at 434-37. Accordingly, the double jeopardy clause does not generally prohibit review of an allegedly erroneous sentence. Id. Following DiFrancesco, there is no per se rule against increasing an allegedly erroneous sentence.

The DiFrancesco Court did not eliminate the prohibition against multiple punishments for the same offense, DiFrancesco, 449 U.S. at 129, 101 S.Ct. at 433, and indicated three ways in which the double jeopardy...

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