# FILED
July 27, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JACKSON JANUA RY 1999 SESSION

STATE OF TENN ESSEE, * C.C.A. # 02C01-9802-CR-00038

Appellee, * SHELBY COU NTY VS. * Honorable Jam es Beasley, Jr., Ju dge 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 & Repor ter Memphis, TN 38103 PETER M. COUGHLAN Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General PAULA WULFF Assistant District A

ttorney General 201 Poplar Avenue Memphis, TN 38103

OPINION FILED: _______________

REVERSED AND

DISMISSED

JOHN EVERETT WILLIA MS, Judge-2- 

### OPINI ON The defendant, Fred Fulgenzi, was indicted for vehi cular assault and driving under the influence of an intoxicant (DUI ) in separate indictments bas ed on a single instance of alleged criminal behavior. The defendant pleaded guilty to DUI, and the trial cour t accepted his plea with out objection from the state. The defendant then moved to dismiss the i ndictment for vehicular ass ault based on double jeopardy. Findi ng that the defendant’s guilty plea had been fraudulently entered, the tri al court set aside the plea a nd denied his motion to dismiss the vehicular

assault indictment. In this interlocutory appeal, the defendant argues (1) that the pr ohibition against double j eopardy bars the state from prosecuting him for vehicular assault following the trial court’s acceptance of his guilty plea to D UI and (2) that the trial court erred in setting

aside his guilty plea. The state contends that double j eopardy is inapplicabl e in the present case and (2) even if double j eopardy was applicabl e, the defendant’s plea was properly set aside, ther eby negating any bar

to further prosecution. After c areful review, we r

espectfully reverse the judgment of the trial court and dismiss the defendant’s indictment for vehicul ar assault, number 97-07010.

BACKGROUND On July 3, 1997, the Shelby County Grand Jury r

eturned indictment 97- 07010 charging the defendant w ith vehicular assault . On the same day, the same grand jury retur

ned a second indictment, number 97-0 7011, charging the defendant with driving under the influence of an intoxicant and with reckless driving. Both indi ctments relate to a singl e incident of the defendant’s allege d criminal conduct that occur red 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 di sposition of the vehicular assault charge, the-3- defense attorney responded, “I think that’s up to the State as t o whether they want to proceed on that after this plea, or not.” The state respo nded that it intended to proceed to trial o n the vehicular assault indictment. Even so, the state did not object to the defendant’s pleading guilty t

o 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 Di strict Attorney state d that, had she known the law , she would have objected to the plea.
After advising the defendant of his constitution al rights, the trial court accepted the defendant’s guilty plea. Immediate ly thereafter, the court conduct ed a sent encing he aring and sentenc ed the de fendan t to 180 d ays confinement, with all but thi rty days suspended; el even months and twenty- nine days probation; a $500 fine; rev ocation of his driver’s

license for one year; and mandatory attendance of alcohol safety courses and Alcoholics A nonymous meetings.
Immediately after the court pr onounced sentence, the defense moved to dismiss the vehicular

assault indictment: DEFENSE ATTORNEY: Your Honor, as to indictment 97-0 7010, I believ e under the case o

f State v. Rhodes , 917 S.W.2d 708, Tennessee Criminal Court-- Appellate Court, 1995, that cas e holds the premise that driving under the influence is a lesse r included offense of vehicular assault. And under the case law as i t’s written in the s

tatute, under the notice of decisions, vehi cular assault includes dr iving under the influence as a lesser inclu ded offense. Thus, for double jeopardy purposes, a person cannot be punis hed separately for DUI and vehicular assault for one act of driving under the influence that causes se rious bod ily injury. Taking that statement into account , Your Honor, since [th e defendant] has been convicted of driv ing under the influence and jeopardy to this offense has been attached , we would ask the Court to dismiss the vehicula r assault indictment number 97- 07010. THE COURT: Be denied. Set it for trial. And you can tak e that issue up on appeal if you are unsuccessful in your trial.-4- On December 8, 1997, the defendant filed a s econd, written motion to dismiss the vehicular

assault indictment based on doubl e jeopardy. The state responded, asserting that the defendant’s guilty plea had be en fraudulently entered and moved that the plea be s et aside.
In its order denying

the defendant’s motion, the trial c ourt acknowledged that DUI is a lesser i ncluded 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. Neverthele

ss, the trial court found that defense counsel had taken ad vantage of good faith, up-front dealing and nego tiations by the st ate and had en tered the guilty ple a through subterfuge and deception. Thus, the t rial court set aside the defendant’s plea and stayed judgment on his D UI conviction.
On January 30, 1998, the defendant mov ed for interlocutory appeal pursuant to Rule 9 of the Tennessee Rul es of Appellate Procedure, and the t rial court granted permission to appeal. This Court accepted the de fendant’s application for appeal on Marc h 2, 1998.

ANAL YSIS Two potential issues confront this Court: First, a

s a threshold inquiry , does the guilty plea to a l esser included offense bar subseq uent prosecution for the greater offense regarding the same episode of con duct? If so, did the trial court erroneously set aside the guilty plea as fraudul ently entered?

I . Double Jeopardy The United States and Tennessee Consti tutions 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-5- vehicular assault ar

e 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 i n jeopardy on these charg es, 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 g uilty plea, entered w ith his knowledge of greater pending charg es, does not implicate the poli cy reasons supporting the prohibition against doubl e jeopardy.
The prohibition against doubl e 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 Caro lina 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 poli cy reasons supporti ng these p rotectio ns includ e goals of certaint y, reliability, and respect for the judicial process” and “finality of judgments,” Bray v. State , 506 S.W.2d 772, 774 (Tenn. 1974); prevention of pros ecutorial overreaching, Ohio v. Johnson , 467 U.S. 493, 498-99 (1984); and prevention of the expense, embarrassment, and an xiety of repeated defenses, see id.
The lineage of the state’s polic y argument begins w

ith 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-6- court accepted his plea ov er the state’s objection. The state court then dismissed the greater offenses on the defendant’s double jeopardy pl ea.
On appeal, the United States Supr eme Court reversed and hel d that double jeopardy did not prohibit prosecution of the greater of fenses. The Court reasoned that the principles sought by the prohibition against double jeopa rdy-- specifically, “finality and prevention of prosec utorial overreaching

”--were not implicated when a defendant, ov er the state’s objection, pl eads guilty to a less er charge while gr

eater charges remain pending

. Id. at 501.

Prior to the Johnson decision, the Tennessee Supreme Cou rt 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 less er included misdemeanor pleaded guilty to, and w as 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 S upreme Court reversed and dismissed the case, holding that the defendant’s “plea of guilty to [a l esser included offense] bars his subsequent prosecution for [the greater offe nse].” Id. at 554.
Despite Cloud , a panel of this Court follow ed 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 ov er the state’s objection-- a fact the Nickens Court thought important. The NickensCourt 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 provi sion by objecting to the offered guilty pleas.”-7- We de cline to f ollow Nickens --first, because we ar e unpersuaded by its reasoning and, second, because it is distinguishable from the prese nt case, in which the state did not obj ect to the defendant’s plea.

II. Fraud Having concluded that the defendant’s conviction on his guilty plea to DUI bars the s tate fro m prosecu ting the ve hicular a ssault in dictmen t against him, we now turn to the trial c

ourt’s determination that the d efendant’s plea was fraudulently entered and should be set aside, thereby neg ating 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 con stitute fraud is purely a question of law , and our review i s 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, appa rently from this statement, that “[b]oth sides ag reed that the Vehicular Assaul t would have to be tried.” Although characterizing the double jeopardy issue as “obvious”--a characterization w

e think militates agains t 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 p lea of guilty as indicted directly to the trial court. Without question, defense counsel intended-8- the plea to raise a double jeopar dy bar to the vehicul ar assault indictment. Defense counsel argues that this tactic, and the failure to announce his intentions, was not only permissive, but ethical ly required. While we leav e the determination of ethical requi rements to other appropriate authorities, we cannot conclude that either counsel’ s strategy or his fail ure to reveal this st rategy amounted to fraud or subterfuge.

CONCLUSION For the above reasons, the judgment of the trial court i s REVERSED and indictment 97-07010 charging the defendant with vehicular assault is DISMISSED.

_____________________________ JOHN EVERE TT WILLIAMS, Judge

CONCUR:

_____________________________ DAVID G. HAYES, Jud ge

_____________________________ JOE G. RILEY, Judge