State v. Hennings

• Decision Date: 06 October 1983
• Docket Number: No. 49323-5,49323-5
• Citation: 100 Wn.2d 379,670 P.2d 256
• Parties: STATE of Washington, Appellant, v. Vernell Teynac HENNINGS, Respondent.
• Court: Washington Supreme Court

Page 379

100 Wn.2d 379

670 P.2d 256

STATE of Washington, Appellant, v. Vernell Teynac HENNINGS, Respondent.

No. 49323-5.

Supreme Court of Washington,

En Banc.

Oct. 6, 1983.

Norm Maleng, King County Prosecutor, Lee Yates, Senior Deputy Pros. Atty., John Fritts, Stephen Moore, Deputy Pros. Attys., Seattle, for appellant.

Washington Appellate Defender, Elizabeth K. Selleck, Seattle, for respondent.

BRACHTENBACH, Justice.

This case presents the issue whether the State may appeal a trial court dismissal of a habitual criminal charge when the dismissal is based upon insufficient evidence. Respondent argues that the double jeopardy clause prohibits the State from attempting again to prove that charge. We hold that the double jeopardy clause bars a second habitual criminal proceeding where the State initially fails to prove beyond a reasonable doubt the validity of each conviction necessary to establish habitual criminal status.

On October 1, 1981 the court, on the basis of stipulated facts, found Vernell Teynac Hennings guilty of five counts of robbery in the first degree while armed with a deadly weapon and one count of second degree robbery. The State subsequently filed a supplemental information charging Hennings with being a habitual criminal under RCW 9.92.090. That charge was based upon two prior King County proceedings. On March 8, 1974, Hennings pleaded guilty to robbery. On January 7, 1977, Hennings stipulated to facts sufficient to support a conviction for first degree robbery, while armed with a deadly weapon. On appeal, only the validity of the 1974 guilty plea is challenged; the 1977 and 1981 convictions are not contested.

The 1974 guilty plea resulted from a December 14, 1973 armed robbery of the Mission Pharmacy. Hennings originally was charged with robbery while armed with a firearm, but an amended information deleted the firearms allegation. Hennings' "Statement of Defendant on Plea of Guilty" includes the statement: "I held up the Mission Pharmacy and took money out of the cash register." Clerk's Papers, at 37. The plea statement also set out the maximum sentence of 20 years to life and enumerated several rights of the defendant, but did not include any reference to Hennings' privilege against self-incrimination.

At the habitual criminal hearing, the only other significant evidence before the Judge was the testimony of Mr. Covell, Hennings' attorney in the 1974 case. Covell testified that he had no independent recollection of either Hennings personally or representing him in the 1974 case. The transcript does, however, contain the following statement by Covell:

I've gone over [the guilty plea] form with Mr. Hennings, and I believe he fully understands all the matters included therein, and his change of plea on the basis of the indicated dismissals of the special findings is voluntarily and knowingly made.

Exhibit 11, at 2. He also testified that he would not have made this statement if it was not true. Moreover, Covell testified that it was his ordinary practice to advise his clients of the rights they were giving up before entering a guilty plea, and to review the guilty plea statements with his clients. Again, there was no mention of the privilege against self-incrimination, or even which of defendant's rights Covell usually discussed.

The court concluded the 1974 guilty plea was not knowingly and voluntarily entered because Hennings did not understand that by entering the plea he waived: the right against self-incrimination, the right to trial by jury, the right to confront and examine adverse witnesses, the right to call witnesses on his own behalf at no expense, the right to require that the State prove the charge beyond a reasonable doubt, and the right of appeal. The judge also concluded there was an insufficient factual basis for the entry of the plea. Therefore, he dismissed the habitual criminal charge.

A habitual criminal proceeding under RCW 9.92.090 involves several significant characteristics relevant to double jeopardy analysis. First, an action to determine the status of habitual offender is a separate, supplemental proceeding. State v. Kirkpatrick, 181 Wash. 313, 315-16, 43 P.2d 44 (1935). Second, the State has the burden of proving beyond a reasonable doubt several facts. One is the existence of two prior valid felony convictions along with the present conviction. State v. Kelly, 52 Wash.2d 676, 328 P.2d 362 (1958). In addition, if, as in this case, any of the convictions were based on guilty pleas and the defendant challenges the validity of the plea, the State must also prove beyond a reasonable doubt that the challenged plea was knowingly made after the defendant was informed of the nature of the offense and the consequences of pleading guilty. State v. Holsworth, 93 Wash.2d 148, 161, 607 P.2d 845 (1980). Finally, the second paragraph of RCW 9.92.090 limits the penalty to life imprisonment; although the sentence may be suspended, there is no discretion to impose a reduced sentence. The question is whether this type of proceeding invokes the protections of the double jeopardy clause.

The double jeopardy clause of the Fifth Amendment plainly provides that: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ...". U.S. Const. Amend. 5. That apparent clarity, however, has not resulted in equally clear precedent. Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 82-86 (1979). The United States Supreme Court even admits that its decisions in this area "can hardly be characterized as models of consistency and clarity." Burks v. United States, 437 U.S. 1, 9, 98 S.Ct. 2141, 2146, 57 L.Ed.2d 1 (1978). Because of this confusion, it is necessary to consider the interests protected by the double jeopardy clause in order to determine whether it should apply to the circumstances of a given case.

The double jeopardy clause clearly prohibits the retrial of a defendant who has been acquitted of a crime charged. United States v. DiFrancesco, 449 U.S. 117, 129-30, 101 S.Ct. 426, 433-44, 66 L.Ed.2d 328 (1980).

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). The Burks Court characterized this same interest:

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.

Burks, 437 U.S. at 11, 98 S.Ct. at 2147. In general, the double jeopardy clause may implicate one or more of the following distinct values:

(1) the integrity of jury verdicts of not guilty, (2) the lawful administration of prescribed sentences, and (3) the interest in repose.

Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich.L.Rev. 1001, 1002 (1980).

Among the three values, the court is most protective of the first because acquittals based upon insufficient evidence indicate that the State has failed to carry its burden. Burks, at 16, 98 S.Ct. at 2150. Cf. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 2217-18, 72 L.Ed.2d 652 (1982) (reversal because of weight of evidence, rather than insufficiency, does not preclude retrial on double jeopardy principles). Although some argue that this protection represents a special deference to jury conclusions, the Supreme Court has not made such a distinction.

A verdict of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial.

Tibbs, at 41, 102 S.Ct. at 2218. Prior to the Burks decision, the courts did not extend double jeopardy analysis to cases in which the defendant obtained a reversal of his conviction on appeal. See, e.g., Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950). In Burks, however, the Court found that a reversal on appeal based upon insufficiency of the evidence is tantamount to an acquittal, which bars retrial. Burks, 437 U.S. at 16, 98 S.Ct. at 2150. Thus, at least in terms of failure to prove a crime the double jeopardy clause prohibits the State from making successive attempts to convict an individual.

The Court has been more reluctant to extend double jeopardy principles to sentencing proceedings. That reluctance was reflected in the Court's conclusion that defendants who obtained a new trial for any reason could be retried and a harsher sentence could be imposed because the original conviction was nullified and "the slate wiped clean." North Carolina v. Pearce, 395 U.S. 711, 721, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969). That rule, however, was recently modified by the Court in Bullington v. Missouri, 451 U.S. 430, 443, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 270 (1981).

Thus, the "clean slate" rationale recognized in Pearce is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case.

Bullington, at 443, 101 S.Ct. at 1860. This modification reiterates the importance of double jeopardy interests where the State fails to prove its case. Along with United States v. DiFrancesco, supra, the Bullington opinion now controls the analysis of double jeopardy principles in bifurcated sentencing proceedings.

Bullington v. Missouri, supra, involved a death penalty statute which required the prosecution to prove certain aggravating circumstances beyond a reasonable doubt in a separate penalty phase of trial. The statute also required a unanimous vote in...