Tiger v. State , 900 P.2d 406 ( 1995 )

ORDER GRANTING WRIT OF CERTIORARI

On September 9, 1986, the Petitioner, Thomas Benjamin Tiger, was charged by information with First Degree Malice Aforethought Murder in the District Court of Mayes County in Case No. CRF-86-98. On September 12, 1986 the State filed an Amended Information alleging First Degree Felony Murder. From September, 1986 to January 10, 1991 Tiger was incarcerated in Tennessee for a murder he committed in that state. Tiger executed an Agreement on De-tainers under the federal Interstate Agreement on Detainers Act.¹ He waived extradition under that Act to stand trial in Mayes County for the murder of Glen Rothenbush.²

On January 10, 1991, Tiger was returned to the Mayes County Jail to await trial for the death of Glen Rothenbush. The examining magistrate held preliminary examination on January 17-18,1991 and ordered Tiger to be bound over for trial. On January 22,1991 Tiger was brought before the District Court of Mayes County for formal arraignment where he entered a plea of not guilty. At that time the State filed a Second Amended Information. On February 1,1991, the State filed a Bill of Particulars, alleging two aggravating circumstances: (1) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (2) there existed the probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

On February 11, 1991, Tiger announced that he sought to change his plea. Before the jury was sworn, the trial court accepted Tiger’s plea of guilty to the Second Amended Information. This blind plea was entered without any recommendation by the State for an appropriate punishment. After an extensive sentencing hearing in which both aggravating and mitigating evidence were presented, the trial court found the existence of the two aggravating circumstances. On August 29,1991 the trial court sentenced Tiger to die by lethal injection.

On September 12,1991 the trial court conducted an evidentiary hearing on Tiger’s Application to Withdraw Plea of Guilty and Request for Evidentiary Hearing. The trial court denied Tiger’s application to withdraw his guilty plea. Tiger has timely filed his Petition for Writ of Certiorari and Mandatory Sentence Review on Imposition of Death Penalty and has perfected his petition for certiorari review of his judgment and sentence.

We address one proposition raised by Tiger that we find to be meritorious.

THE TRIAL COURT’S SUBJECT MATTER JURISDICTION

In his first proposition of error, Tiger alleges that the Second Amended Information violated his constitutional rights by failing to state facts constituting the elements of the underlying felony in the felony murder information.

A guilty plea waives all nonjurisdic-tional defects in the information. Frederick v. State, 811 P.2d 601, 603 (Okl.Cr.1991). On certiorari review of a guilty plea, our review is limited to two inquiries: (1) whether the guilty plea was made knowingly and voluntarily; and (2) whether the district court accepting the guilty plea had subject matter jurisdiction to accept the plea. Id.; King v. State, 553 P.2d 529 (Okl.Cr.1976); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Generally, a trial court’s jurisdiction is based upon jurisdiction of parties and jurisdiction of the general subject matter. Application of Anderson, 803 P.2d 1160, 1163 (Okl.Cr.1990). An information which does not recite facts to allege every essential element of the crime charged fails to charge a crime, and therefore fails to confer subject matter jurisdiction on the trial court. Miller v. State, 827 P.2d 875, 879 (Okl.Cr.1992).

The Second Amended Information alleged in its charging language:

... that THOMAS BENJAMIN TIGER on or about the 2nd day of July, A.D. 1986 in Mayes County, State of Oklahoma and within the jurisdiction of this Court, did unlawfully, wilfully and feloniously and without authority of law did effect the death of one GLEN ROTHENBUSH; the said defendant being then and there engaged in committing or attempting to commit the crime of BURGLARY-FIRST DEGREE did kill the said GLEN ROTHEN-BUSH with a wooden board, causing mortal wounds in the body of the said GLEN ROTHENBUSH, from which mortal wounds the said GLEN ROTHENBUSH did languish and die, contrary to the form of the Statutes in such cases made and provided and against the peace and dignity of the State.

The test of the sufficiency of an information has two parts: “essential elements” and “notice.” The two-prong test for determining the sufficiency of an information is not whether the information might possibly have been made more certain, but whether (1) it contains every essential element of the offense to be charged, and (2) sufficiently apprises the defendant of what he must be prepared to meet. Miller v. State, 827 P.2d 875, 877 (Okl.Cr.1992); Plotner v. State, 762 P.2d 936, 940 (Okl.Cr.1988); Nunley v. State, 660 P.2d 1052, 1056 (Okl.Cr.1983), cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 179 (1983); Argo v. State, 88 Okla.Crim. 107, 200 P.2d 449, 451 (1948); Ex parte Burnett, 78 Okla.Crim. 147, 145 P.2d 441, 442-443 (1944). Because the information in the present case did not allege all of the essential elements of the underlying felony in what is intended to be a felony murder charge, we find that the trial court lacked subject matter jurisdiction to accept the guilty plea to First Degree Felony Murder. Pickens v. State, 885 P.2d 678 (1994); Allen v. State, 874 P.2d 60, 65 (Okl.Cr.1994); Miller v. State, 827 P.2d 875, 879 (Okl.Cr.1992). Okl. Const. art. II, § 17.

The State conceded at oral argument that the information in the present case intended to charge Tiger with First Degree Felony Murder. 21 O.S.1982, § 701.7.B. Essentially, the information alleged that Tiger wilfully killed Glen Rothenbush with a wooden board during the course of a first degree burglary. In order for the taking of human life in the commission of a felony to constitute felony murder, the underlying felony must constitute an independent crime not included within the resulting homicide. Sullinger v. State, 675 P.2d 472, 473 (Okl.Cr.1984); Tarter v. State, 359 P.2d 596, 601-602 (Okl.Cr.1961). The elements of the underlying felony are essential elements of felony murder. See especially OUJI-CR 430. An information intended to charge a defendant with felony murder must recite facts to allege every element of the underlying felony. Pickens v. State, 885 P.2d 678 (1994). In the present case, the information does not allege any of the particular facts constituting the elements of First Degree Burglary, the underlying felony in the present case. A criminal information which does not allege all the essential elements of the offense charged is insufficient, and the defect goes to the jurisdiction of the court and is not waivable. Harjo v. State, 797 P.2d 338, 342 (Okl.Cr.1990). Okl. Const. art. II, § 17.

For the foregoing reasons, we grant certio-rari and vacate the judgment and sentence of the trial court. We remand to the trial court for further proceedings consistent -with this order.

IT IS SO ORDERED.

JOHNSON, P.J., and LANE and STRUBHAR, JJ., concur. CHAPEL, V.P.J., concurs in result. LUMPKIN, J., dissents.

1 . 18 U.S.C.App. 2, § 1, et. seq.

2 . 18 U.S.C.App. 2, § 2, art. 111(e).