State v. Keith
| Decision Date | 11 September 1985 |
| Docket Number | No. 2-1184-A-341,2-1184-A-341 |
| Citation | 482 N.E.2d 751 |
| Parties | STATE of Indiana, Appellant (Plaintiff), v. Gary E. KEITH, Appellee (Defendant). |
| Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellant.
Geoffrey A. Rivers, Muncie, for appellee.
Plaintiff-appellant the State appeals the dismissal with prejudice of charges pending against defendant-appellee Gary E. Keith (Keith) claiming the trial court erred in dismissing the charges on grounds of double jeopardy.
We affirm.
The facts most favorable to the trial court's decision are as follows: On April 25, 1983, Keith struck a child while driving a friend's motorcycle. The State charged Keith with disorderly conduct, 1 criminal On July 12, 1983, the State filed a motion to dismiss the misdemeanor proceeding pending against Keith so that felony charges could be filed. At a July 26, 1983 hearing Keith objected to the dismissal motion and tried to enforce a plea agreement entered into by the State and Keith. Ultimately, on October 19, 1983, the court rejected the parties' plea agreement but permitted Keith to plead guilty. The court established a factual basis for entry of the plea, accepted the plea, and scheduled a sentencing date. Next, on October 25, 1983, the State filed a motion to strike Keith's guilty plea and to dismiss the misdemeanor charges. Keith opposed the State's motion and the motion was denied.
recklessness, 2 driving while intoxicated, 3 and driving without an operator's license 4 under cause numbers CDCI-83/610 and SDCI-83/647 [hereinafter collectively referred to as the misdemeanor proceeding]. Keith was arraigned and pled not guilty to each charge.
On November 9, 1983, Keith was arraigned in cause CS4-83/27 [hereinafter referred to as the felony proceeding] on a charge of criminal recklessness, 5 arising out of the same motorcycle ride. The next significant event occurred in the misdemeanor proceeding when, on January 10, 1984, the State again filed a motion to dismiss for the reason "charges involving the same occurrence are pending in another court." Record at 42. This motion was granted without objection from Keith, and, on January 18, 1984, the misdemeanor proceeding against Keith was dismissed. In the felony proceeding, also on January 18, the State filed a second count against Keith charging him with operation of a vehicle while intoxicated resulting in serious bodily injury. 6 Keith filed a motion to dismiss both charges against him in the felony proceeding because they violated the constitutional and statutory prohibition against double jeopardy. Ultimately, the felony proceeding against Keith was dismissed by the court.
To recapitulate, the order of dispositive events is as follows:
Misdemeanor charges of disorderly conduct, criminal recklessness, and driving while intoxicated filed against Keith;
State's motion to dismiss misdemeanor charges overruled;
Keith pleads guilty to misdemeanor charges and trial court accepts his guilty plea;
Keith charged with a felony, criminal recklessness;
Trial court grants State's second motion to dismiss the misdemeanor proceeding;
Keith charged with felony, operation of a motor vehicle while intoxicated;
Trial court grants Keith's motion to dismiss the felony proceeding.
The State now appeals.
The State presents one issue for our review:
Whether the trial court's dismissal of the felony proceeding against Keith was contrary to law?
PARTIES' CONTENTIONS--The State says the felony proceeding is not prohibited because jeopardy never attached in the misdemeanor proceeding and, in any event, the charges filed in the felony proceeding are separate crimes from those charges brought in the misdemeanor proceeding.
Keith protests that jeopardy did attach in the misdemeanor proceeding and that the charges filed in the felony proceeding are essentially the same as those filed in the misdemeanor proceeding.
CONCLUSION--The trial court's dismissal of the felony proceeding against Keith was not contrary to law.
By way of prelude, we observe that the State does not question the sufficiency of competent evidence supporting the trial court's finding of double jeopardy. Consequently, any error in this regard is waived. See Smith v. State (1985), Ind., 475 N.E.2d 1139 (). But, the State may appeal the trial court's dismissal in favor of Keith based on jeopardy pursuant to IC 35-38-4-2(2) (Supp.1985). State v. McMillan (1980), 274 Ind. 167, 409 N.E.2d 612, cert. denied, 450 U.S. 1003, 101 S.Ct. 1714, 68 L.Ed.2d 207. We are bound to affirm the action of the trial court if any valid basis exists to support it. State v. McLaughlin (1984), Ind.App., 471 N.E.2d 1125. As the determination of jeopardy involves a question of fact, we will disturb a trial court's finding only if it is "clearly erroneous as unsupported by the facts and circumstances before the court together with any reasonable inferences to be drawn therefrom." State v. Bowman (1981), Ind., 423 N.E.2d 605, 607 (emphasis added).
It is well established that once a court of competent jurisdiction accepts a defendant's guilty plea after a determination of a factual basis and voluntariness, jeopardy attaches. Absent a waiver of jeopardy rights, a subsequent trial on the same charge is prohibited. Stowers v. State (1977), 266 Ind. 403, 363 N.E.2d 978; Boswell v. State (1887), 111 Ind. 47, 11 N.E. 788. See generally U.S. CONST. amend. V; Ind. CONST. art. I, Sec. 14; IC 35-41-4-3 (1982). Our supreme court has so reasoned because, after a guilty plea has been entered and accepted by a court, a defendant is "in precisely the same jeopardy as if a jury had returned a verdict of guilty" Boswell, supra at 50, 11 N.E. at 790.
Despite the State's assertions to the contrary, the evidence considered by the felony proceeding court at Keith's dismissal hearing supports its decision that jeopardy attached during the misdemeanor proceeding because the court had accepted Keith's guilty plea to the misdemeanor charges. At his motion to dismiss hearing, Keith testified that he was sworn under oath before he pled guilty to the misdemeanor charges and that the court established a factual basis for his plea from his testimony. Record at 153.
Our motion to dismiss statute permits defendants to submit affidavits containing sworn allegations of fact along with their motions. IC 35-34-1-8 (1982). Keith's entire motion was made subject to the penalties for perjury and was signed under oath. Record at 22-24. In reviewing a related matter, our supreme court recently held that pleadings prepared by a defendant under oath and relied upon by the trial court and the parties as evidence could be considered as evidence by this court upon review even though the pleadings were never formally entered into evidence. State v. Cleland (1985), Ind., 477 N.E.2d 537. We follow this most recent pronouncement in a rather nebulous area of law and examine as evidence Keith's motion to dismiss pleadings and accompanying exhibits. But see State v. Fair (1983), Ind., 450 N.E.2d 66.
Keith's sworn dismissal petition and the exhibits incorporated therein substantiate his testimony of jeopardy. One exhibit, a certified docket sheet from the misdemeanor proceeding, relates that on October 19, 1983 the following occurred:
"The defendant now moves to withdraw his plea of not guilty to the charge and substitute in lieu thereof a plea of guilty and the Court having been satisfied that the plea of guilty herein was made voluntarily and the Court having established a factual basis for the entry of the plea, the Court now accepts the said plea of guilty herein...."
Record at 30. Properly authenticated criminal docket sheets are admissible to prove a defendant's prior convictions. Connell v. State (1984), Ind., 470 N.E.2d 701; Minneman v. State (1982), Ind., 441 N.E.2d 673; Griffin v. State (1981), 275 Ind. 107, 415 N.E.2d 60.
The record of the felony proceeding 7 established that the misdemeanor proceeding court accepted Keith's guilty plea after a determination of the factual basis and voluntariness. Therefore, jeopardy attached in the misdemeanor proceeding, and a second prosecution on the same charges is prohibited. There is no indication Keith's guilty plea was conditionally accepted as was the case in Stowers, supra. Rather, the record shows that Keith entered a guilty plea and it was accepted by the trial court without objection from the State. 8
Having decided Keith was placed in jeopardy in the misdemeanor proceeding when the trial court accepted his plea of guilty before the State moved to dismiss the charges against him, we must now determine whether the misdemeanor proceeding charges are lesser included offenses of the felony proceeding charges. We conclude the misdemeanor proceeding charges are lesser included offenses of the felony proceeding charges.
The purpose of both our federal and state Double Jeopardy Clauses is to prohibit reprosecution and multiple punishment for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; Elmore v. State (1978), 269 Ind. 532, 382 N.E.2d 893. Greater and lesser included offenses are considered to be the same offense for purposes of double jeopardy. Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187; Elmore, supra. An included offense means, in part, an offense that "is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged." IC 35-41-1-16(1). To satisfy our federal and state constitutional prohibitions against reprosecution for the same offense, we must first determine whether each criminal statute with which Keith was charged required proof of an additional fact...
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