ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (Civil Action No. 80-0708)
Before Hunter and Garth, Circuit Judges and Sarokin, District Judge.*fn*
This appeal requires us to decide whether the double jeopardy clause of the Constitution*fn1 bars Pennsylvania from retrying Klobuchir on his original first degree murder indictment after the state court had vacated his plea-bargained conviction for third degree murder. We hold that double jeopardy does not bar Klobuchir's retrial.
Howard James Klobuchir allegedly fired a gun into a parked car on August 21, 1975 killing Richard Bates. Klobuchir's estranged wife Bertha was in the car at the time of the shooting. On October 20, 1975, Klobuchir was indicted for murder*fn2 and also for voluntary manslaughter.*fn3 The presence of his wife Bertha in the car caused Klobuchir to be indicted as well for aggravated assault and recklessly endangering another person. On March 10, 1976, pursuant to a plea agreement made with the Commonwealth, Klobuchir pleaded guilty to third degree murder and aggravated assault. He was sentenced to 10 to 20 years on the third degree murder count and received a consecutive sentence of 5 to 10 years on the aggravated assault count.
On January 17, 1978 the Court of Common Pleas granted Klobuchir's application for post-conviction relief and vacated his guilty plea conviction for third degree murder.*fn4 The Common Pleas Court found that the original trial judge had not informed Klobuchir of the presumption of innocence as required by the Pennsylvania Rules of Criminal Procedure.*fn5 Prior to trial, Klobuchir sought to have the first degree murder charge dismissed, claiming that prosecution on this charge violated his right to be free from double jeopardy. The trial judge denied the application, and the Pennsylvania Supreme Court affirmed that order by a 3 to 3 vote. Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979), cert. denied, 445 U.S. 952, 100 S. Ct. 1602, 63 L. Ed. 2d 787, rehearing denied, 446 U.S. 947, 100 S. Ct. 2178, 64 L. Ed. 2d 804 (1980). That court held that Klobuchir's due process and equal protection claims had been waived,*fn6 and that Klobuchir had never been in jeopardy for first degree murder. Thus, the court held that neither the double jeopardy clause of the Fifth Amendment of the United States Constitution nor the Pennsylvania double jeopardy clause had been violated.*fn7 Thereafter, the Pennsylvania Supreme Court reaffirmed its Klobuchir decision. Commonwealth v. Tabb, 491 Pa. 372, 421 A.2d 183 (Pa.1980); Commonwealth v. Newmiller, 487 Pa. 410, 409 A.2d 834 (1979).
After certiorari was denied, Klobuchir filed a petition for a writ of habeas corpus in federal court. The district court denied Klobuchir relief, in an order dated June 2, 1980. That order denied a stay of the state court proceedings and dismissed Klobuchir's petition. This appeal followed.
Klobuchir argues before us that he cannot be "retried" for first degree murder because he has already been "implicitly acquitted" of that charge. By accepting his guilty plea to third degree murder, Klobuchir asserts that the trial judge, by implication, found him innocent of first degree murder.
In support of this double jeopardy claim, Klobuchir relies heavily upon Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). In Green, the defendant was charged with first and second degree murder*fn8 and was convicted by the jury on the latter count. Green appealed, and his conviction for second degree murder was vacated. He subsequently was retried and was then convicted of first degree murder. The Supreme Court held that the retrial of Green for first degree murder was barred by the double jeopardy clause of the Fifth Amendment. The Court reasoned that when the jury did not convict Green of first degree murder, it had implicitly acquitted him of that charge. He had run the "gauntlet", id. at 190, 78 S. Ct. at 225, and, at least with respect to first degree murder, had escaped unscathed. The Court explained that one purpose of double jeopardy was to protect an individual from the "hazards of trial and possible conviction more than once for an alleged offense." Id. at 187, 78 S. Ct. at 223. The Court went on to state that to allow a second prosecution for first degree murder would be to disregard this purpose of double jeopardy. The Court added that a defendant should not be placed in the dilemma of either surrendering an implied acquittal to a higher charge, or acquiescing to an improper conviction. Id. at 193-94, 78 S. Ct. at 226-227.
Klobuchir claims that by analogy, Green governs his case. He likens the trial judge's acceptance of his plea to third degree murder to Green's conviction by the jury on the lesser charge of second degree murder. Klobuchir therefore insists that he faces the same onerous dilemma that Green faced either accept an illegal conviction, or have it vacated and risk conviction on a higher charge with the attendant danger of a harsher sentence.
Klobuchir's analogy, however, is seriously flawed. Unlike a judge accepting a guilty plea, the jury, when it convicts on a lesser included offense, has had a full opportunity to convict on the greater charge. The jury's return of a guilty verdict on the lesser charge can be interpreted as an implicit acquittal only because it has rejected the opportunity to convict on the greater charge. But the trial judge, by accepting Klobuchir's guilty plea to third degree murder, quite obviously could not have considered any greater charge. He thus could not have "convicted" Klobuchir of first degree murder an option that was available to the jury in the Green case. Accordingly, Klobuchir, who had not stood trial as Green had, never was in jeopardy of being convicted of first degree murder.
Later Supreme Court cases reinforce this analysis. Thus in United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978) the district court, at the close of all the evidence, erroneously dismissed two counts of the indictment, because of pre-indictment delay. The Supreme Court held that the defendant could be retried because "a defendant is acquitted only when the ruling of the judge, whatever its label, actually represents a resolution (in the defendant's favor) correct or not, of some of or all of the factual elements of the offense charged." Scott at 97, 98 S. Ct. at 2197 quoting United States v. Martin Linen, 430 U.S. 564, 97 S. Ct. 1349, 51 L. Ed. 2d 642 ...