Levin v. State

• Decision Date: 18 June 2018
• Docket Number: A18A0255
• Citation: 816 S.E.2d 170,346 Ga.App. 340
• Parties: LEVIN v. The STATE.
• Court: Georgia Court of Appeals

346 Ga.App. 340

816 S.E.2d 170

LEVIN

v.The STATE.

A18A0255

Court of Appeals of Georgia.

June 18, 2018

James Kenneth Luttrell, Woodstock, for Appellant.

Emily Kathleen Richardson, Brian Keith Fortner, Ryan Reese Leonard, for Appellee.

Mercier, Judge.

Following the reversal of his convictions for kidnapping with bodily injury, aggravated assault, possession of a firearm during the commission of a crime, and making harassing phone calls, Gregory Levin appeals the denial of his motion in autrefois convict (double jeopardy) in connection with the kidnapping charge, the denial of his motion to dismiss the indictment (on constitutional speedy trial grounds) regarding all of the charges, and the denial of his motion to recuse or disqualify a judge. For the reasons that follow, we affirm.

The complicated procedural history of this case is, for the most part, set out in the opinion in Levin v. State , 334 Ga. App. 71, 778 S.E.2d 238 (2015). (Additional details will be added as needed.)

In 1994, Gregory A. Levin was tried by a jury [in the Superior Court of Douglas County] and convicted of kidnapping with bodily injury, two counts of aggravated assault, burglary, cruelty to children, aggravated battery, possession of a firearm during the commission of a crime, and making harassing phone calls. The trial court merged the aggravated battery conviction into the kidnapping with bodily injury conviction and sentenced Levin to a total of life plus 48 years in confinement.¹

Levin appealed, and this Court reversed his conviction for making harassing telephone calls based on an improper verdict form, and his convictions for aggravated assault and possession of a firearm based on erroneous jury charges. Levin v. State , 222 Ga. App. 123, 126–127 (5), (6), 473 S.E.2d 582 (1996).

In 2014 [in a habeas corpus appeal], the Supreme Court of Georgia reversed Levin’s conviction for kidnapping with bodily injury and vacated his life sentence based on the State’s failure to satisfy the asportation requirement as set forth in Garza v. State , 284 Ga. 696, 670 S.E.2d 73 (2008). Levin v. Morales , 295 Ga. 781, 764 S.E.2d 145 (2014). The Court also noted that the aggravated battery conviction had been merged into the kidnapping conviction and ordered, "[n]ow that the kidnapping conviction has been reversed, on remand the trial court will need to revisit sentencing [Levin] on the conviction for aggravated battery." Id. at 784 .

On remand, the trial court conducted a resentencing hearing and on the day of the hearing, Levin filed a plea in bar on double jeopardy grounds, seeking dismissal of the aggravated battery count of the indictment. The trial court denied the plea in bar, and sentenced Levin to 20 years in confinement for the aggravated battery conviction.

Levin v. State , 334 Ga. App. 71, 71–72, 778 S.E.2d 238 (2015) (footnotes omitted).²

Levin appealed the trial court’s denial of his plea in bar (double jeopardy) on the aggravated battery conviction and the order imposing the new sentence on that charge. Id. This Court affirmed the trial court’s decision. Id. The remittitur in that case was filed in the Superior Court of Douglas County on February 22, 2016.

On December 21, 2016, Levin was re-arraigned on the charges of kidnapping with bodily injury, aggravated assault, possession of a firearm during the commission of a crime, and making harassing phone calls. The same day, he filed the motion in autrefois convict, a plea in bar/motion to dismiss on constitutional speedy trial grounds, and a motion for disqualification and/or recusal of the judge. This appeal is from the orders denying Levin’s motions.

1. Levin contends that the trial court erred in denying his motion in autrefois convict concerning the kidnapping with bodily injury charge. He asserts that because the Supreme Court of Georgia reversed his conviction on that charge based on insufficiency of the evidence, double jeopardy bars retrial. We disagree.

It is true that "once a reviewing court reverses a conviction solely for insufficiency of the evidence to sustain the jury’s verdict of guilty, double jeopardy bars retrial." Green v. State , 291 Ga. 287, 288 (1), 728 S.E.2d 668 (2012). This principle, however, does not squarely answer the issue presented here, which is: where a reviewing court determines that the evidence presented at trial has been rendered insufficient only by a post-trial change in law , does double jeopardy preclude the government from retrying the defendant?

As set out above, Levin’s 1994 conviction for kidnapping with bodily injury was affirmed. Levin v. State , 222 Ga. App. 123, 473 S.E.2d 582 (1996). Then, in Levin’s 2012 habeas corpus appeal, Levin v. Morales , 295 Ga. 781, 764 S.E.2d 145 (2014), the Supreme Court reversed the kidnapping with bodily injury conviction and vacated the sentence entered thereon, finding that there was insufficient evidence of asportation under Garza v. State , 284 Ga. 696, 702 (1), 670 S.E.2d 73 (2008) (establishing new factors for assessing the asportation element of Georgia’s pre–2009 kidnapping statute). Levin v. Morales , 295 Ga. at 783–784, 764 S.E.2d 145. In denying Levin’s motion in autrefois, the trial court concluded that the reversal of the kidnapping with bodily injury conviction was based on a post-trial change in the law and thus did not implicate double jeopardy principles.

The parties point to, and we find, no binding authority precisely on point. In fact, the question appears to be an "open" one under Georgia law. See Levin v. State , 334 Ga. App. at 75 (2), 778 S.E.2d 238, citing Levin v. Morales , 295 Ga. at 784–786, 764 S.E.2d 145 (Blackwell, J., concurring). In his concurrence in Levin v. Morales , Justice Blackwell wrote the following:

I write separately only to note some uncertainty in our law about the extent to which Gregory A. Levin and others like him may be retried, their convictions having been set aside on habeas or appeal. When a conviction is set aside for a mere trial error—inaccurate jury instructions, for instance, or the admission of inadmissible evidence—the State generally is permitted a retrial, and the constitutional prohibition of double jeopardy does not preclude it. See State v. Caffee , 291 Ga. 31, 34 (3), 728 S.E.2d 171 (2012). When a conviction is set aside, however, upon the failure of the State to have adduced evidence legally sufficient to sustain the conviction, the constitutional prohibition of double jeopardy ordinarily bars a retrial. See Burks v. United States , 437 U.S. 1, 98 S.Ct. 2141, 57 LE2d [L.Ed.2d] 1 (1978). See also Green v. State , 291 Ga. 287, 288 (1), 728 S.E.2d 668 (2012) ; Prater v. State , 273 Ga. 477, 481 (4), 545 S.E.2d 864 (2001). Today, we hold that the State failed to present evidence legally sufficient to sustain the conviction of Levin for kidnapping, and on that basis, we direct that his conviction must be set aside. If this were an ordinary sufficiency case, our decision would preclude a retrial. But it might not be so ordinary.

Levin v. Morales , 295 Ga. at 784, 764 S.E.2d 145. Justice Blackwell explained that when the State tried Levin for kidnapping with bodily injury in 1994, before Garza was decided, the prosecuting attorneys had no reason to know that anything more than slight movement would be necessary to prove asportation, and that:

When the State can know what proof the law requires, but fails to offer such proof at trial, the State ought not have another chance to convict the accused. But when the State relies on a longstanding and settled understanding of the law, and it offers evidence sufficient to carry its burden consistent with that understanding—only to have that understanding suddenly upended years later by an appellate court undertaking a course correction—it is not so clear that the State should be denied a second chance.

Levin v. Morales , 295 Ga. at 785, 764 S.E.2d 145. In his concurrence, Justice Blackwell cited cases from other jurisdictions that hold:

where a reviewing court determines that the evidence presented at trial has been rendered insufficient only by a post-trial change in law, double jeopardy concerns do not preclude the government from retrying the defendant. United States v. Ford , 703 F.3d 708, 711 (II) (A) (4th Cir. 2013) (citations omitted). See also United States v. Wacker , 72 F.3d 1453, 1465 (II) (A) (10th Cir. 1996) ; United States v. Weems , 49 F.3d 528, 531 (II) (9th Cir. 1995) ; State v. Liberty , 370 S.W.3d 537, 554 (IV) (Mo. 2012) ; State v. Drupals , 306 Conn. 149, 49 A.3d 962, 976, n. 12 (Conn. 2012).

Levin v. Morales , 295 Ga. at 785–786, 764 S.E.2d 145. Justice Blackwell concluded that the Court was not required to resolve the issue at that time, though, inasmuch as the prosecuting attorneys in Levin’s case may "not prefer to retry him." Id. at 786, 764 S.E.2d 145. The issue must now be resolved.

While this Court is not bound by decisions of the Eleventh Circuit construing federal law, those decisions are persuasive authority. Perez v. State , 283 Ga. 196, 198, 199, 657 S.E.2d 846 (2008). In United States v. Robison , 505 F.3d 1208 (11th Cir. 2007), where there was a post-trial change in the definition of a key element of a criminal offense, the Eleventh Circuit held that the definition used in the defendant’s trial was no longer good law and it reversed his convictions, but it held that the government could retry the defendant under the correct standard. Id. at 1215–1216 (II) (A), 1224–1225 (II) (E), 1229.

Other circuits have reached the same result. In United States v. Ford , 703 F.3d 708, 711 (II) (A) (4th Cir. 2013), which cited Robison and found that double jeopardy did not bar retrying Ford after his conviction was reversed for insufficient evidence because of a post-trial change in the law, the court pointed out that:

[o]ther circuits considering the issue agree that where a reviewing court determines that the evidence presented at trial has been rendered insufficient only by a post-trial change in law,

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