State v. Johnson, 82-657

CourtUnited States State Supreme Court of Ohio
Writing for the CourtJAMES P. CELEBREZZE; FRANK D. CELEBREZZE; LOCHER; KEEFE, J., of the First Appellate District, sitting for WILLIAM B. BROWN; LOCHER
Citation453 N.E.2d 595,6 OBR 466,6 Ohio St.3d 420
Parties, 6 O.B.R. 466 The STATE of Ohio, Appellant, v. JOHNSON, Appellee.
Docket NumberNo. 82-657,82-657
Decision Date31 August 1983

Page 420

6 Ohio St.3d 420
453 N.E.2d 595, 6 O.B.R. 466
The STATE of Ohio, Appellant,
JOHNSON, Appellee.
No. 82-657.
Supreme Court of Ohio.
Aug. 31, 1983.

Syllabus by the Court

1. Aggravated robbery, as defined by R.C. 2911.01, is an "allied offense of similar import" to theft, as defined by R.C. 2913.02. (R.C. 2941.25[A], applied.)

2. The offenses of murder, R.C. 2903.02, and involuntary manslaughter, R.C. 2903.04, share the common element of causing the death of another and are distinguishable only by the offender's mental state. The prohibition against double jeopardy requires that in any one killing, the offender may be convicted of one or the other of the offenses but not both.

On February 13, 1979, appellee, Kenneth M. Johnson, was indicted by the Lake County Grand Jury for one count each of the offenses of murder, R.C. 2903.02(A), involuntary manslaughter, R.C. 2903.04(B), aggravated robbery, R.C. 2911.01(A)(1), and grand theft, R.C. 2913.02(A)(1). All four charges stemmed from an incident occurring on January 25, 1979, in which Thomas D. Hill was shot to death and several items of personal property were taken from his apartment.

[453 N.E.2d 597] At his arraignment conducted on October 9, 1980, appellee attempted to enter a plea of guilty as to the charges of involuntary manslaughter and theft and not guilty as to the remaining charges. After a series of hearings and, over the objections of the state, the trial court accepted this plea on November 26, 1980. The court thereafter sentenced appellee to serve three to ten years on the involuntary manslaughter count and two to five years on the theft count.

Subsequently, appellee filed a motion to dismiss the charges remaining against him on the basis that his constitutional protection against being placed twice in jeopardy for the same offense would be violated if he were to be tried on the counts of murder and aggravated robbery. Upon consideration, the trial court found this argument to be well-taken and granted the motion to dismiss.

The court of appeals affirmed and the cause is now before this court upon the allowance of a motion for leave to appeal.

John E. Shoop, Prosecuting Atty., Judson J. Hawkins, Gregory C. Sasse and Robert W. LaForce, Painesville, for appellant.

Purola & Savage and Albert L. Purola, Willoughby, for appellee.

Page 421


The Double Jeopardy Clause is contained in the Fifth Amendment to the United States Constitution which provides, in part, " * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This prohibition has been held to be applicable to the states by operation of the Fourteenth Amendment. Benton v. Maryland (1969), 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707. Moreover, the Ohio Constitution contains a similar protection in Section 10, Article I which states, " * * * [n]o person shall be twice put in jeopardy for the same offense."

It is established that there are three protections offered by the Double Jeopardy Clause to the criminal defendant: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656.

It is the state's position that the second of those protections was improperly invoked and applied in this case. In support of this position, the state advances a two-pronged argument. First, it maintains that the offenses of murder and involuntary manslaughter and the offenses of aggravated robbery and theft are not the same for double jeopardy purposes. Second, citing the cases of Jeffers v. United States (1977), 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168, and United States v. Goldman (C.A.3, 1965), 352 F.2d 263, it asserts that the appellee was not subjected to multiple prosecutions in that he was properly charged with all four offenses in a single indictment and that he chose to artificially bifurcate the proceedings by pleading guilty to some of the offenses and not guilty to the others. In summary, the state asserts that a criminal defendant charged with multiple crimes should not be permitted to manipulate the timing of the proceedings in such a manner as to avoid prosecution for the more serious charges by pleading guilty to the lesser offenses and then claiming a double jeopardy bar as to the others.

The state's position rests upon the argument that the essential issue in this case is one of timing. Accordingly, it maintains that were it not for the trial court's erroneous acceptance of a partial guilty plea over prosecutorial objections, the case would have proceeded to trial and the appellee could have been convicted of all four counts of the indictment.

Upon careful consideration of the record below as well as the applicable statutory and case law, we find this position to be untenable. We agree with the appellant that this case does not involve successive prosecutions such as to warrant the application of the collateral estoppel principles set forth in Ashe v. Swenson (1970), 397 U.S. [453 N.E.2d 598] 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, and its progeny. Rather, this case concerns the third double jeopardy protection prohibiting multiple punishments for the same offense. In reviewing and applying this protection, it is our conclusion that the appellee could not have been convicted of all the charges against him regardless of the timing of the trial court's acceptance of his pleas.

Where an accused is charged with more than one statutory violation and

Page 422

the double jeopardy prohibition against multiple punishments for the same offense is invoked, the standard test to be applied in determining whether the offenses are sufficiently distinguishable is the one enunciated in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306:

" * * * The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. * * * "

This test stresses the commonality of the elements of the offenses charged and generally forbids cumulative punishments for both a greater and a lesser included offense. Brown v. Ohio (1977), 432 U.S. 161, 164-166, 97 S.Ct. 2221, 2224-26, 53 L.Ed.2d 187. It is noteworthy, however, that the two offenses need not be identical in constituent elements or in actual proof in order to be the same for double jeopardy purposes. Id. at 164, 97 S.Ct. at 2224.

The General Assembly has further effectuated the principles contained in the Double Jeopardy Clause by means of R.C. 2941.25, the multiple count statute. State v. Thomas (1980), 61 Ohio St.2d 254, 259-260, 400 N.E.2d 897 [15 O.O.3d 262]. This statute provides:

"(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

"(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind...

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