             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON                  FILED
                           JANUARY 1999 SESSION
                                                                 July 27, 1999

                                                             Cecil Crowson, Jr.
                                                            Appellate Court Clerk
STATE OF TENNESSEE,                      )
                                         )      NO. 02C01-9802-CR-00038
       Appellee,                         )
                                         )      SHELBY COUNTY
VS.                                      )
                                         )      HON. JAMES BEASLEY, JR.,
FRED FULGENZI,                           )      JUDGE
                                         )
       Appellant.                        )      (Vehicular Assault -- Interlocutory
                                         )      Appeal)



                             DISSENTING OPINION



       I respectfully dissent from the conclusion reached by my colleagues that

double jeopardy bars the prosecution of this defendant for the indicted charge of

vehicular assault. The trial court’s findings of “subterfuge” and “deception” are

supported by the record. Thus, I believe the inaccurate and misleading statements

of defendant's counsel to the trial court, which led to acceptance of the DUI guilty

plea, negate defendant's ability to rely upon double jeopardy to deny the state its

day in court.




                      FACTS SURROUNDING THE PLEA



       The guilty plea transcript reveals the following discourse between defense

counsel and the court:

       DEFENSE COUNSEL:           A t this time
                                  we have a
                                  plea to the
                                  Court, directly
                                  to the Court,
                                  if Your Honor
                                  cares to hear
                                  it.
       ...

                                         1
       THE COURT:                 Yes, sir. I
                                  need to know
                                  what he's
                                  pleading
                                  guilty to.


       DEFENSE COUNSEL:           I n d i c t m en t
                                  number 97-
                                  0 7 0 1 1 ,
                                  driving under
                                  the influence,
                                  as charged.
                                  At this time
                                  he's         not
                                  pleading the
                                  97-07010,
                                  vehicular
                                  assault.

       THE COURT:                 What are we
                                  doing with
                                  that?

       DEFENSE COUNSEL:           I think that's
                                  up to the
                                  State as to
                                  whether they
                                  want        to
                                  proceed on
                                  that after this
                                  plea, or not.

       STATE’S COUNSEL:           At this point
                                  we would
                                  want         to
                                  proceed [due
                                  to the critical
                                  i n j ur i e s
                                  suffered by
                                  the elderly
                                  victim], Your
                                  Honor. . . .
       ...

       STATE’S COUNSEL:           . . . we're
                                  ready to set a
                                  trial date if
                                  that's what
                                  [counsel]
                                  would like to
                                  do.

(Emphasis added.) Defense counsel made no response, and the trial court began

taking the guilty plea.



       Immediately after acceptance of the guilty plea, the trial court conducted a

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sentencing hearing in which the defendant testified. During defense counsel’s direct

examination, defense counsel asked defendant, “you understand at this time you

still have a pending felony case against you for vehicular assault?” The defendant

replied, “yes.”



       After the trial court pronounced the sentence, and pursuant to his original

intention, defense counsel immediately asked to dismiss the vehicular assault

indictment.



       In a subsequent hearing on defendant’s motion to dismiss, state’s counsel

testified that prior to the plea, defense counsel advised her the defendant would

plead to DUI. When she asked defense counsel about the vehicular assault charge,

he stated, “we could set it for trial, to wait and see what the judge wants to do with

it.” In an affidavit filed by defense counsel, he confirmed that he “informed the

Assistant Attorney General that we were entering a guilty plea to the Court on the

DUI indictment only. They indicated they would proceed to trial on the vehicular

assault indictment and I said that would be fine.”



       Thus, the record clearly indicates that the statements made by defense

counsel to the trial court were inaccurate because it was not counsel’s position that

the state could decide to proceed with the trial on vehicular assault. These

statements were misleading as they led the trial court and the prosecuting attorney

to believe the vehicular assault charge would proceed to trial. In fact, the record

reflects that defense counsel’s original intention was to move for dismissal of the

vehicular assault charge. Defense counsel does not deny this.




                           TRIAL COURT’S FINDINGS



       In his order denying the motion to dismiss, the trial judge noted that prior to



                                          3
acceptance of the plea, “both sides agreed that the vehicular assault would have to

be tried. . .” and that the trial court was under the same impression. The trial court

specifically found that the guilty plea was obtained by “subterfuge” and “deception.”



       The evidence, in my opinion, does not preponderate against these factual

findings by the trial court. Thus, the issue is whether a guilty plea to a lesser

offense obtained by “subterfuge” and “deception” creates a double jeopardy bar to

prosecution of the pending greater offense. I think not.




                                 STATE V. CLOUD



       I believe the majority’s reliance upon State v. Cloud, 588 S.W.2d 552 (Tenn.

1979), is misplaced. Cloud, finding a double jeopardy violation based upon a guilty

plea to a lesser offense, was decided in 1979. Ohio v. Johnson, 467 U.S. 493, 104

S.Ct. 2536, 81 L.Ed.2d 425 (1984), which was decided by the United States

Supreme Court in 1984, should be the controlling authority in this case.




                           CONTROLLING AUTHORITY



       The factual circumstances of the case before us persuade me to follow the

holdings of the United States Supreme Court in Ohio v. Johnson, supra, and our

Court in State v. Mark Cambron Nickens, C.C.A. No. 03C01-9205-CR-00189, Tenn.

Crim. App. 1993 LEXIS 513, at *1 (Tenn. Crim. App. filed August 5, 1993, at

Knoxville)(citing and following Johnson; distinguishing State v. Cloud, supra).

These cases dictate that there is no double jeopardy problem here.


                                          4
       In Ohio v. Johnson, the United States Supreme Court held that double

jeopardy did not bar subsequent prosecution of a defendant for the indicted crimes

of murder and aggravated robbery, even though defendant had pled guilty to the

lesser charges of involuntary manslaughter and grand theft. 467 U.S. at 494, 104

S.Ct. at 2538, 81 L.Ed.2d at 430. The Court determined that the defendant had not

been exposed to conviction, and the state had been denied the opportunity to

pursue a conviction on the greater charges. The Court reasoned that, “acceptance

of a guilty plea to lesser included offenses while charges on the greater offenses

remain pending . . . has none of the implications of an ‘implied acquittal’ which

results from a verdict convicting a defendant on lesser included offenses rendered

by a jury charged to consider both greater and lesser included offenses. . . .” 467

U.S. at 501-502, 104 S.Ct. at 2542, 81 L.Ed.2d at 435 (citations omitted).



       Likewise, this Court declined to bar a subsequent prosecution on a greater

charge of felonious operation of a motor vehicle in spite of the trial judge's

unconditional acceptance of defendant's guilty plea to the lesser offense of driving

on a revoked license. Mark Cambron Nickens, 1993 LEXIS 513, at *7. The majority

finds Nickens unpersuasive, instead finding State v. Cloud, supra, persuasive.1 As

previously stated, the Cloud holding predated Johnson.



       The factual similarities between Johnson, Nickens, and this case are

numerous. Most importantly, each defendant was indicted for both greater and

lesser offenses arising from the same conduct; each defendant was allowed by the

trial court to plead guilty to the lesser offense(s); and each defendant subsequently

attempted to avoid prosecution on the greater offense(s) by a claim of double

jeopardy. As in those cases, no interest of this defendant’s protected by double

jeopardy principles was implicated where the defendant pled guilty to the lesser



       1
        I note that the majority also finds Nickens distinguishable since the state in that
case objected to the plea.

                                              5
offense of DUI; and there “has been none of the governmental overreaching that

double jeopardy is supposed to prevent.” Johnson, 467 U.S. at 502, S.Ct. at 2542,

81 L.Ed.2d at 435.




                     LACK OF OBJECTION BY THE STATE



       The one distinction between the case at bar and the other cases is the lack

of formal objection by the state to the entry of defendant’s guilty plea. I do not find

this distinction dispositive, particularly in view of the inaccurate and misleading

statements of defense counsel.



        Based upon the state’s failure to object to defendant’s guilty plea, my

colleagues distinguish Johnson and Nickens. Due to defense counsel’s inaccurate

and misleading statements not only to the prosecuting attorney, but especially in

response to the trial court’s direct inquiry regarding the status of the vehicular

assault charge, a unique factual situation was created which causes me to question

whether the presence or absence of a state objection is determinative in deciding

the issue of double jeopardy. Nevertheless, if it does have any significance, I

believe the inaccurate and misleading statements by defense counsel suffice as a

substitute for an objection by the state.



       In Grady v. Corbin, the United States Supreme Court remarked: “we need

not decide whether our double jeopardy analysis would be any different if affirmative

misrepresentations of fact by a defendant or his counsel were to mislead a court

into accepting a guilty plea it would not otherwise accept." 495 U.S. 508, 512, n.4,

110 S.Ct. 2084, 2088, 109 L.Ed.2d 548, 559 (1990). That, based upon the record

and the explicit findings of the trial court, is exactly what we have here. As such,

I whole-heartedly agree with the principle enunciated in Johnson that defendant

should not be entitled to use the Double Jeopardy Clause as a “sword” so as to



                                            6
“deny the State . . . one full and fair opportunity” to its day in court. 467 U.S. at 501-

502, 104 S.Ct. at 2542, 81 L.Ed.2d at 435.



       I recognize that should this case be remanded for prosecution of the

vehicular assault charge, and defendant is convicted, the DUI conviction could not

stand. Rather, it would necessarily merge into the greater offense of vehicular

assault resulting in a single conviction against defendant. See State v. Rhodes, 917

S.W.2d 708, 714 (Tenn. Crim. App. 1995).

       Based on the foregoing, I respectfully DISSENT from the majority opinion

and would AFFIRM the judgment of the trial court and REMAND for further

proceedings.2




                                                          ________________________
                                                          JOE G. RILEY, JUDGE




       2
         It is not my intention to personally berate, condemn, or embarrass defense
counsel. Defense counsel believed he had an obligation to his client to pursue the
strategy of entering the guilty plea to DUI to foreclose prosecution for vehicular assault.
That is not the issue, however. My legal concern is that, while pursuing this strategy,
counsel made inaccurate and misleading statements to the trial court and prosecuting
attorney.

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