Opinion
No. ED 79192.
January 22, 2002.
Appeal from the Circuit Court of the County of St. Louis, Honorable Steven H. Goldman.
Douglas R. Hoff, 1221 Locust Street, Suite 350, St. Louis, MO, 63103, for appellant.
John Munson Morris III, Andrea Mazza Follett, P.O. Box 899, Jefferson City, MO, 65102, for Respondents.
Thomas Peiffer ("Movant") appeals from the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant was separately charged and sentenced following guilty pleas entered, first, in the City of St. Louis ("City") for first-degree tampering with a car, and second, in the County of St. Louis ("County") for stealing that same car. We find that tampering in the first degree is a lesser-included offense of stealing and that double jeopardy attached when the City unconditionally accepted Movant's guilty plea for first-degree tampering. We reverse his conviction in the County for stealing in that double jeopardy prohibited his prosecution in the County for stealing a car when he had previously pleaded guilty to tampering with that same car in the City. We deny Movant's claims of entitlement to an evidentiary hearing for ineffective assistance of counsel when entering his guilty plea in the County.
In order to understand the issues in this case, it is necessary to be familiar with the chronology of events. Movant stole a car on October 17, 1998, from an auto dealership in the County. City charged Movant on December 15, 1998, with tampering in the first degree in violation of section 569.080 RSMo 2000, alleging that the infraction had occurred on October 19, 1998. Movant pleaded guilty on March 23, 1999, to the first-degree tampering charge in the City. Thereafter, County charged Movant on July 12, 1999, with violating section 570.030 by stealing the same car he had already pleaded guilty to tampering with in the City, claiming the theft occurred on October 17, 1998. On November 16, 1999, Movant pleaded guilty in the County to four counts of stealing, including stealing a car, and was sentenced to four concurrent seven-year terms. The City then sentenced Movant on March 31, 2000, to 173 days in prison on his guilty plea for first-degree tampering, which had been entered one year previously.
All further statutory references are to RSMo 2000 unless otherwise indicated.
We note at the outset that even though the stealing and first-degree tampering charges allege the crimes occurred on different days, the parties do not contest that they are part of the same offense for the purposes of our double jeopardy inquiry.
The other three stealing charges were unrelated to the automobile theft and included stealing shirts from one store and stealing videocassette recorders from another store on two separate occasions.
Movant alleges that his motion for post-conviction relief was meritorious in four respects and was erroneously denied without an evidentiary hearing by the motion court. In his first point, he contends that tampering and stealing are the same offense for double jeopardy purposes, thereby prohibiting the City and County from prosecuting him for both of them. Movant claims in his second point the County lacked jurisdiction in that double jeopardy precluded it from acquiring the subject matter jurisdiction necessary to charge or convict him with stealing because he had previously pleaded guilty to first-degree tampering in the City with regard to the same automobile.
In his third and fourth points, Movant asserts that he received ineffective assistance of counsel when entering his plea to stealing in the County. He maintains that he was prejudiced because his attorney did not move to dismiss the charge on grounds that it violated his constitutional right against double jeopardy. Movant also alleges that his attorney incorrectly told him that if he pleaded guilty and received concurrent sentences, the conditional release date in another sentence would not be affected.
Intrinsic to the first three of Movant's points is the concept of double jeopardy. The Fifth Amendment to the U.S. Constitution establishes that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The Fourteenth Amendment renders this protection against double jeopardy applicable to the states. State v. Heslop, 842 S.W.2d 72, 74 (Mo.banc 1992). This constitutional safeguard protects defendants from successive prosecutions for the same offense after an acquittal or conviction and prohibits multiple punishments for the same offense. Id.
Movant's claim of double jeopardy arises in the context of a guilty plea instead of a trial. Generally, a guilty plea made voluntarily waives all non-jurisdictional defects and defenses. Hagan v. State, 836 S.W.2d 459, 461 (Mo.banc 1992). The constitutional protection against double jeopardy, however, affects the state's power to hale the defendant to court to answer the charge. Id.
Once a guilty plea has become final, a defendant's request to reopen a conviction usually leads to an inquiry "confined to whether the underlying plea was both counseled and voluntary." Id. ( quoting U.S. v. Broce, 488 U.S. 563, 569 (1989)). If both of those requirements have been met, collateral attack generally is barred. Id. An exception exists such that "a guilty plea does not waive a subsequent claim of a double jeopardy violation if it can be determined from the face of the record that the sentencing court had no power to enter the conviction or impose the sentence." Id. The record for review in evaluating whether Movant may collaterally attack the judgment through a double jeopardy claim consists solely of the state's information or indictment and the transcript of Movant's guilty plea. Id.
In his first point, Movant argues that first-degree tampering is a lesser-included offense of stealing, which is an issue this court has previously addressed. In State v. McIntyre, 749 S.W.2d 420 (Mo.App. 1988), the defendant was charged and convicted by a jury of first-degree tampering. Approximately two months after he was sentenced, he was charged with stealing the same car with which he had been convicted for tampering. Id. at 421. He directly appealed the stealing charge on the grounds that it violated his right to be protected from double jeopardy because he had already been tried and convicted of tampering with the same vehicle for which the stealing charge was levied. Id. at 421-22.
In McIntyre, the court found that the stealing charge did not violate the defendant's rights against double jeopardy because of prior Missouri appellate court decisions concluding that tampering is not a lesser-included offense of stealing. The court cited to four cases to support this result: State v. Souders, 703 S.W.2d 909 (Mo.App. 1985);State v. Gobble, 675 S.W.2d 944 (Mo.App. 1984); State v. Rivers, 663 S.W.2d 255 (Mo.App. 1983); and State v. Smith, 655 S.W.2d 626 (Mo.App. 1983).
In contrast to McIntyre, where the original charge was first-degree tampering, in Souders, Gobble, Rivers, and Smith, the crime argued to be a lesser-included offense of stealing was second-degree tampering.Souders, 703 S.W.2d at 911; Gobble, 675 S.W.2d at 948-49; Rivers, 663 S.W.2d at 256; and Smith, 655 S.W.2d at 627. First-degree tampering is defined in section 569.080:
1. A person commits the crime of tampering in the first degree if:
. . . .
(2) He knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle without the consent of the owner thereof.
2. Tampering in the first degree is a class C felony.
In comparison, second-degree tampering is defined in section 569.090, which provides in pertinent part:
1. A person commits the crime of tampering in the second degree if he:
(1) Tampers with property of another for the purpose of causing substantial inconvenience to that person or to another; or
(2) Unlawfully rides in or upon another's automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle. . . .
Section 569.010(7) defines "to tamper" as "to interfere with something improperly, to meddle with it, displace it, make unwarranted alterations in its existing condition, or to deprive, temporarily, the owner or possessor of that thing."
Stealing is defined in section 570.030 as "appropriat[ing] property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion."
McIntyre contained no analysis of the elements of first-degree tampering compared with those of stealing, yet it relied on Smith and its progeny to reach the conclusion that first-degree tampering was not a lesser-included offense of stealing, even though those cases all concerned second-degree tampering. The defendant in McIntyre subsequently applied for a writ of habeas corpus in federal court. The U.S. Court of Appeals for the 8th Circuit, however, held that first-degree tampering was a lesser-included offense of stealing as those crimes are defined under Missouri law. McIntyre v. Caspari, 35 F.3d 338, 344 (8th Cir. 1994). McIntyre argued that stealing contains all the elements of first-degree tampering and that someone cannot be guilty of stealing in Missouri without also being guilty of tampering in the first degree accompanied by the element of intent to deprive. Id. The 8th Circuit granted McIntyre's habeas corpus writ and remanded to the district court with instructions to vacate his stealing conviction.Id.
The 8th Circuit's conclusion was reached by comparing the elements of first-degree tampering and stealing under the test established inBlockburger v. U.S., 284 U.S. 299 (1932), which is codified at section 556.046 and known as the same elements test. McIntyre, 35 F.3d at 343-44. It noted that the Supreme Court of Missouri had not addressed whether first-degree tampering was a lesser-included offense of stealing but assumed that if that court analyzed the issue, it would concur with the 8th Circuit's finding that first-degree tampering was a lesser-included offense of stealing. Id. at 343.
Our analysis of whether first-degree tampering is a lesser-included offense of stealing begins with section 556.041, which proscribes in some instances prosecuting a person with more than one offense resulting from the same conduct. Section 556.041 provides that when the same conduct by a person may establish the commission of more than one crime, the person may be prosecuted for each offense, with four exceptions. The first exception is that a person may not be convicted of more than one offense if "one offense is included in the other, as defined in section 556.046." Section 556.041(1). Section 556.046, the codification of theBlockburger test, enumerates three instances in which an offense is a lesser-included offense. Movant argues that first-degree tampering is a lesser-included offense of stealing because first-degree tampering "is established by proof of the same or less than all the facts required to establish the commission of" stealing. Section 556.056.1(1).
Section 556.041 provides:
When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if
(1) One offense is included in the other, as defined in section 556.046; or
(2) Inconsistent findings of fact are required to establish the commission of the offenses; or
(3) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or
(4) The offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
Section 556.046 provides:
1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It is specifically denominated by statute as a lesser degree of the offense charged; or
(3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.
2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
In accordance with the statutes and precedent, the pertinent inquiry in double jeopardy claims like the defendant's in McIntyre and Movant's is whether "each offense contain[s] an element not contained in the other."McIntyre, 35 F.3d at 344. The 8th Circuit concluded that only stealing contained an element not included in first-degree tampering, namely the intent to permanently deprive the owner, and not vice-versa. Id. Because all the elements in first-degree tampering are part of the crime of stealing, the 8th Circuit declared first-degree tampering and stealing to be the same offense for double jeopardy purposes. Id.
A comparison of the statutory language defining first-degree tampering and stealing informs our decision. First-degree tampering occurs when a person "knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle without the consent of the owner thereof." Section 569.080.1(2). Similarly, stealing occurs when a person "appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion." Section 570.030.1. "Appropriate" is defined in section 570.010 as "to take, obtain, use, transfer, conceal or retain possession of."
In Movant's case, the appropriated property was an automobile, which is one of the categories of property protected by section 570.030, and his first-degree tampering charge stemmed from his unlawful operation of that same automobile. To establish his guilt for stealing, the state would have been required to prove all of the elements of first-degree tampering augmented by proof that his unlawful operation of the vehicle occurred "with the purpose to deprive" the owner of the property. Section 570.030.1. Stated another way, then, first-degree tampering "is established by proof of the same or less than all the facts required to establish the commission of" stealing. Section 556.046.1(1).
An examination of the statutes defining stealing and first-degree tampering therefore compels our conclusion that we must overruleMcIntyre and concur with the conclusion reached by the 8th Circuit that first-degree tampering is a lesser-included offense of stealing for double jeopardy purposes. Movant's first point is granted.
Movant's second point alleges that double jeopardy prevented the County from possessing jurisdiction to charge and convict him with stealing. Because of our conclusion herein that first-degree tampering is a lesser-included offense of stealing, we must consider at what point jeopardy attached to Movant's prosecution to determine whether the City's or the County's claim is precluded.
We previously have relied on Ricketts v. Adamson, 483 U.S. 1 (1987), for the supposition that jeopardy attaches to a guilty plea when a defendant is sentenced on that plea. See Jones v. State, 771 S.W.2d 349, 351 (Mo.App. 1989). The plea bargain in Ricketts required the defendant to testify "against any and all parties involved in the murder of" the decedent. Ricketts, 482 U.S. at 4. The agreement further provided that if the defendant refused to testify or testified untruthfully, the entire agreement would be "null and void and the original charge [would] be automatically reinstated." Id.
In Ricketts, the issue was whether the defendant's breach of a plea agreement removed the double jeopardy bar to prosecution of the defendant on the charges he faced prior to the plea agreement. Id. at 3. The defendant already had pleaded, been sentenced, and begun serving his time when he was prosecuted. Id. The U.S. Supreme Court did not determine specifically that double jeopardy attached when the defendant was sentenced. Id. at 8. Instead, it assumed that it had attached when he was sentenced or before, stating: "We may assume that jeopardy attached at least when respondent was sentenced . . . on his plea of guilty."Id.
The Western District of this Court questioned our reliance on Ricketts for the proposition that jeopardy attaches to a plea upon entry of a defendant's sentence. State v. Bally, 869 S.W.2d 777, 778-79 (Mo.App. 1994). The Western District cited to Jones, but it noted: "We do not need to decide, however, whether the Jones court was correct in its assumption" that jeopardy attaches to a plea upon sentencing of a defendant. In a footnote, the Western District asserted that "federal courts hold that jeopardy attaches when the court unconditionally accepts a defendant's guilty plea." Bally, 869 S.W.2d at 779. The Western District did not, however, address the issue directly in Bally as it was not necessary to the outcome of that case. Id.
We concur with the Western District's assertion that double jeopardy generally attaches to a guilty plea upon its unconditional acceptance. Although that proposition is not universally accepted, "numerous other courts have reached the same conclusion." South Dakota v. McAlear, 519 N.W.2d 596, 599 (S.D. 1994) (citations omitted). See also Franshaw v. Lynaugh, 810 F.2d 518, 523 (5th Cir. 1987) (citing cases supporting the proposition that jeopardy attaches upon unconditional acceptance of a guilty plea); 5 Wayne R. LaFave et al., Criminal Procedure section 25.1(d) at 642 (1999); but see Balley v. Kemna, 65 F.3d 104, 107-08 (8th Cir. 1995) (citing cases questioning the rationale of holding that jeopardy attaches upon acceptance of a guilty plea and declining to determine at what point jeopardy attaches to a guilty plea).
Based on federal and other precedent, we find that jeopardy attaches to a guilty plea when it is unconditionally accepted. There were no conditions associated with Movant's plea in the City, therefore jeopardy attached to the tampering charge when his guilty plea was entered. The County had no jurisdiction to prosecute him thereafter for stealing because he had already pleaded guilty to the lesser-included offense of first-degree tampering in the City for the same conduct. Movant's second point is granted.
Movant claims in his third point that his trial counsel was ineffective for failing to move for dismissal of the County's stealing charge against him on the basis that it violated his constitutional right against double jeopardy. We do not address the merits of this point because of our decision herein to reverse Movant's conviction for stealing. We note, however, that failure to predict a change in the law does not constitute ineffective assistance of counsel. State v. Brown, 902 S.W.2d 278, 298 (Mo. banc 1995); O'Haren v. State, 927 S.W.2d 447, 450 (Mo.App. 1996).
In his fourth point, Movant argues that he received ineffective assistance of counsel when entering his guilty plea because his attorney told him that if he pleaded guilty and received concurrent sentences, his date for earlier release on another sentence would not be affected. He claims that had counsel not misinformed him, he would not have pleaded guilty and would have proceeded to trial.
Our review of the denial of Movant's Rule 24.035 motion is confined to evaluating whether the motion court's findings are clearly erroneous. Rule 24.035(k). In order to receive an evidentiary hearing, Movant must cite facts, and not conclusions, that would warrant relief if true.Cross v. State, 37 S.W.3d 256, 259 (Mo.App. 2000). The facts Movant alleges must not be refuted by the record. Id.
In the context of a guilty plea, counsel's ineffectiveness is material only to the extent it affects whether the plea was voluntarily and knowingly made. Id. To obtain a reversal, Movant must demonstrate that counsel's performance was deficient and that he was thereby prejudiced, or but for counsel's unprofessional errors, Movant would not have pleaded guilty but would have insisted instead on going to trial. Id.
An evidentiary hearing is necessary when: (1) the movant alleges facts, which, if true, would entitle the movant to relief; (2) the factual allegations are unrefuted by the record; and (3) the matters complained of prejudice the movant. Loudermilk v. State, 973 S.W.2d 551, 553 (Mo.App. 1998). Absent any one of these three prongs, no evidentiary hearing is required. Id.
The motion court denied this point without an evidentiary hearing, finding unreasonable Movant's belief that he would receive credit in two cases for time served on an earlier case. Additionally, the motion court noted that Movant failed to allege that his attorney specifically told him he would receive credit in this manner.
At the plea hearing, Movant testified that he understood the range for each stealing count to be one day in jail to seven years in the penitentiary, possibly accompanied by a fine of no more than $5,000. When asked whether any promises were made other than that he would receive concurrent sentences for the four guilty pleas entered that day for his four different stealing charges, he said no. Movant also affirmatively answered that his attorney had fully advised him of all the legal aspects of his cases, including his rights and the possible consequences of entering guilty pleas.
We are not required to remand to the motion court when our review of the merits of Movant's claim demonstrates that Movant is not entitled to relief as a matter of law. Cross, 37 S.W.3d at 260. We note that a prediction or advice of counsel does not constitute coercion nor does it render a guilty plea involuntary. Tyus v. State, 913 S.W.2d 72, 72 (Mo.App. 1995).
Movant failed to establish any facts not refuted by the record. We find that the motion court's findings were not clearly erroneous, and we affirm its decision to deny Movant's ineffective assistance of counsel claim without a hearing.
We reverse Movant's conviction for stealing as a violation of his constitutional right against double jeopardy, and the seven-year sentence for that conviction is vacated. The three remaining concurrent seven-year sentences imposed on the other stealing convictions in the County, as well as the sentence on the first-degree tampering conviction in the City, are not affected by this decision, and we affirm the denial of relief on those sentences. The denial of an evidentiary hearing on Movant's Rule 24.035 motion is affirmed.
Mary Rhodes Russell, J. (author), Paul J. Simon, J., and Mary K. Hoff, J., concur.