               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,               *    C.C.A. # 02C01-9802-CR-00038

             Appellee,            *    SHELBY COUNTY

VS.                               *    Honorable James Beasley, Jr., Judge

FRED FULGENZI,                    *    (Vehicular Assault--Interlocutory Appeal)

             Appellant.           *



FOR THE APPELLANT:                     FOR THE APPELLEE:

GERALD D. SKAHAN                       JOHN KNOX WALKUP
140 North Third Street                 Attorney General & Reporter
Memphis, TN 38103
                                       PETER M. COUGHLAN
                                       Assistant Attorney General
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493

                                       WILLIAM L. GIBBONS
                                       District Attorney General

                                       PAULA WULFF
                                       Assistant District Attorney General
                                       201 Poplar Avenue
                                       Memphis, TN 38103




OPINION FILED: _______________



REVERSED AND DISMISSED




JOHN EVERETT WILLIAMS,
Judge
                                     OPINION

       The defendant, Fred Fulgenzi, was indicted for vehicular assault and

driving under the influence of an intoxicant (DUI) in separate indictments based

on a single instance of alleged criminal behavior. The defendant pleaded guilty

to DUI, and the trial court accepted his plea without objection from the state.

The defendant then moved to dismiss the indictment for vehicular assault based

on double jeopardy. Finding that the defendant’s guilty plea had been

fraudulently entered, the trial court set aside the plea and denied his motion to

dismiss the vehicular assault indictment. In this interlocutory appeal, the

defendant argues (1) that the prohibition against double jeopardy bars the state

from prosecuting him for vehicular assault following the trial court’s acceptance

of his guilty plea to DUI and (2) that the trial court erred in setting aside his guilty

plea. The state contends that double jeopardy is inapplicable in the present

case and (2) even if double jeopardy was applicable, the defendant’s plea was

properly set aside, thereby negating any bar to further prosecution. After careful

review, we respectfully reverse the judgment of the trial court and dismiss the

defendant’s indictment for vehicular assault, number 97-07010.



                                   BACKGROUND

       On July 3, 1997, the Shelby County Grand Jury returned indictment 97-

07010 charging the defendant with vehicular assault. On the same day, the

same grand jury returned a second indictment, number 97-07011, charging the

defendant with driving under the influence of an intoxicant and with reckless

driving. Both indictments relate to a single incident of the defendant’s alleged

criminal conduct that occurred on January 23, 1997.



       On December 4, 1997, the defendant announced to the trial court his

desire to plead guilty to indictment 97-07011, DUI. When the court inquired of

defense counsel regarding disposition of the vehicular assault charge, the

                                          -2-
defense attorney responded, “I think that’s up to the State as to whether they

want to proceed on that after this plea, or not.” The state responded that it

intended to proceed to trial on the vehicular assault indictment. Even so, the

state did not object to the defendant’s pleading guilty to indictment 97-07011,

DUI. At a later hearing, the state candidly admitted that it did not object because

it did not perceive any double jeopardy ramifications to the vehicular assault

charge. The Assistant District Attorney stated that, had she known the law, she

would have objected to the plea.



       After advising the defendant of his constitutional rights, the trial court

accepted the defendant’s guilty plea. Immediately thereafter, the court

conducted a sentencing hearing and sentenced the defendant to 180 days

confinement, with all but thirty days suspended; eleven months and twenty-nine

days probation; a $500 fine; revocation of his driver’s license for one year; and

mandatory attendance of alcohol safety courses and Alcoholics Anonymous

meetings.



       Immediately after the court pronounced sentence, the defense moved to

dismiss the vehicular assault indictment:

      DEFENSE ATTORNEY: Your Honor, as to indictment 97-07010, I
      believe under the case of State v. Rhodes, 917 S.W.2d 708,
      Tennessee Criminal Court--Appellate Court, 1995, that case holds
      the premise that driving under the influence is a lesser included
      offense of vehicular assault.
             And under the case law as it’s written in the statute, under
      the notice of decisions, vehicular assault includes driving under the
      influence as a lesser included offense. Thus, for double jeopardy
      purposes, a person cannot be punished separately for DUI and
      vehicular assault for one act of driving under the influence that
      causes serious bodily injury.
             Taking that statement into account, Your Honor, since [the
      defendant] has been convicted of driving under the influence and
      jeopardy to this offense has been attached, we would ask the Court
      to dismiss the vehicular assault indictment number 97-07010.

       THE COURT: Be denied. Set it for trial. And you can take that
       issue up on appeal if you are unsuccessful in your trial.



                                          -3-
      On December 8, 1997, the defendant filed a second, written motion to

dismiss the vehicular assault indictment based on double jeopardy. The state

responded, asserting that the defendant’s guilty plea had been fraudulently

entered and moved that the plea be set aside.



       In its order denying the defendant’s motion, the trial court acknowledged

that DUI is a lesser included offense of vehicular assault and, therefore, that

double jeopardy would generally bar the state from prosecuting the greater

offense after the defendant’s conviction of the lesser. Nevertheless, the trial

court found that defense counsel had taken advantage of good faith, up-front

dealing and negotiations by the state and had entered the guilty plea through

subterfuge and deception. Thus, the trial court set aside the defendant’s plea

and stayed judgment on his DUI conviction.



       On January 30, 1998, the defendant moved for interlocutory appeal

pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, and the trial

court granted permission to appeal. This Court accepted the defendant’s

application for appeal on March 2, 1998.



                                    ANALYSIS

       Two potential issues confront this Court: First, as a threshold inquiry, does

the guilty plea to a lesser included offense bar subsequent prosecution for the

greater offense regarding the same episode of conduct? If so, did the trial court

erroneously set aside the guilty plea as fraudulently entered?



                               I. Double Jeopardy

       The United States and Tennessee Constitutions protect an accused from

being twice placed in jeopardy for the “same offense.” See U.S. Const. amend.

V; Tenn. Const. Art. 1, § 10. This Court has previously determined that DUI and


                                        -4-
vehicular assault are the “same offense” for double jeopardy purposes. See

State v. Rhodes, 917 S.W.2d 708 (Tenn. Crim. App. 1995). Further, the

defendant has clearly been put in jeopardy on these charges, as jeopardy

attached upon the trial court’s unconditional acceptance of his guilty plea. See

State v. Todd, 654 S.W.2d 379, 381 (Tenn. 1983). Thus, double jeopardy

would apparently bar prosecution of the vehicular assault indictment as a matter

of law.

          Nevertheless, the state argues that double jeopardy is inapplicable to the

present case because the defendant’s guilty plea, entered with his knowledge of

greater pending charges, does not implicate the policy reasons supporting the

prohibition against double jeopardy.



          The prohibition against double jeopardy affords three fundamental

protections: (1) protection against a second prosecution after an acquittal; (2)

protection against a second prosecution after conviction; and (3) protection

against multiple punishments for the same offense. See, e.g., North Carolina v.

Pearce, 395 U.S. 711, 717 (1969), State v. Lewis, 958 S.W.2d 736, 738 (Tenn.

1997); State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996).



          The policy reasons supporting these protections include goals of certainty,

reliability, and respect for the judicial process” and “finality of judgments,” Bray v.

State, 506 S.W.2d 772, 774 (Tenn. 1974); prevention of prosecutorial

overreaching, Ohio v. Johnson, 467 U.S. 493, 498-99 (1984); and prevention of

the expense, embarrassment, and anxiety of repeated defenses, see id.



          The lineage of the state’s policy argument begins with Ohio v. Johnson,

467 U.S. 493 (1984). In Johnson, a defendant was accused of two greater and

two lesser included offenses in a single indictment. At his arraignment in an

Ohio state court, the defendant pleaded guilty to the lesser offenses, and the trial


                                          -5-
court accepted his plea over the state’s objection. The state court then

dismissed the greater offenses on the defendant’s double jeopardy plea.



       On appeal, the United States Supreme Court reversed and held that

double jeopardy did not prohibit prosecution of the greater offenses. The Court

reasoned that the principles sought by the prohibition against double jeopardy--

specifically, “finality and prevention of prosecutorial overreaching”--were not

implicated when a defendant, over the state’s objection, pleads guilty to a lesser

charge while greater charges remain pending. Id. at 501.



       Prior to the Johnson decision, the Tennessee Supreme Court had faced

this issue in State v. Cloud, 588 S.W.2d 552 (Tenn. 1979). In Cloud, a

defendant who was charged with a felony and a lesser included misdemeanor

pleaded guilty to, and was convicted of, the lesser offense. The trial court and

this Court rejected the defendant’s plea of double jeopardy to the greater

offense. However, the Tennessee Supreme Court reversed and dismissed the

case, holding that the defendant’s “plea of guilty to [a lesser included offense]

bars his subsequent prosecution for [the greater offense].” Id. at 554.



       Despite Cloud, a panel of this Court followed Johnson in State v. Mark

Cambron Nickens, No. 03C01-9205-CR-00189 (Tenn. Crim. App. filed Aug. 5,

1993, at Knoxville). As in Johnson, the trial court in Nickens accepted the

defendant’s guilty plea over the state’s objection--a fact the Nickens Court

thought important. The Nickens Court distinguished Cloud on the basis that it

predates Johnson and “[m]ore importantly, . . . Cloud does not establish that the

state attempted as it did here and in Johnson to prevent the offensive use of the

double jeopardy provision by objecting to the offered guilty pleas.”




                                        -6-
       We decline to follow Nickens--first, because we are unpersuaded by its

reasoning and, second, because it is distinguishable from the present case, in

which the state did not object to the defendant’s plea.



                                      II. Fraud

       Having concluded that the defendant’s conviction on his guilty plea to DUI

bars the state from prosecuting the vehicular assault indictment against him, we

now turn to the trial court’s determination that the defendant’s plea was

fraudulently entered and should be set aside, thereby negating this bar to further

prosecution.



       The facts constituting the defendant’s alleged fraud are undisputed and

are in the record before this Court. Thus, whether these facts constitute fraud is

purely a question of law, and our review is de novo.



       The entire basis for the trial court finding of fraud was the defense

counsel’s response, when asked what was to happen to the vehicular assault

indictment, “I think that’s up to the State as to whether they want to proceed on

that after this plea, or not.” The trial court concluded, apparently from this

statement, that “[b]oth sides agreed that the Vehicular Assault would have to be

tried.” Although characterizing the double jeopardy issue as “obvious”--a

characterization we think militates against a finding of fraud--the trial court further

concluded that “defense counsel took advantage of good faith, up-front dealing

and negotiation by the State and obtained [sic] [the guilty plea] by deception.”

We respectfully disagree.



       The record indicates no “dealing and negotiation” by or with the state, in

good faith or otherwise. Rather, the defendant tendered his plea of guilty as

indicted directly to the trial court. Without question, defense counsel intended


                                          -7-
the plea to raise a double jeopardy bar to the vehicular assault indictment.

Defense counsel argues that this tactic, and the failure to announce his

intentions, was not only permissive, but ethically required. While we leave the

determination of ethical requirements to other appropriate authorities, we cannot

conclude that either counsel’s strategy or his failure to reveal this strategy

amounted to fraud or subterfuge.



                                      CONCLUSION

       For the above reasons, the judgment of the trial court is REVERSED and

indictment 97-07010 charging the defendant with vehicular assault is

DISMISSED.




                                               _____________________________
                                               JOHN EVERETT WILLIAMS, Judge




CONCUR:




_____________________________
DAVID G. HAYES, Judge




_____________________________
JOE G. RILEY, Judge




                                         -8-
