State v. Roberts

• Decision Date: 06 August 2008
• Docket Number: No. 2007-1475.,2007-1475.
• Citation: 893 N.E.2d 818,119 Ohio St.3d 294,2008 Ohio 3835
• Parties: The STATE of Ohio, Appellee, v. ROBERTS, Appellant.
• Court: Ohio Supreme Court

893 N.E.2d 818

119 Ohio St.3d 294

2008-Ohio-3835

The STATE of Ohio, Appellee, v. ROBERTS, Appellant.

No. 2007-1475.

Supreme Court of Ohio.

Submitted May 20, 2008.

Decided August 6, 2008.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for appellee.

Charles W. Isaly, Cincinnati, for appellant.

LUNDBERG STRATTON, J.

I. Introduction

{¶ 1} We must determine whether a defendant's reincarceration after his release from prison violates the Double Jeopardy Clause. Under the facts of this case, we hold that the defendant had no legitimate expectation of finality when his sentence was modified on appeal to two years from eight years and the two-year sentence was stayed pending appeal to this court. Therefore, his resentencing and reincarceration did not violate the Double Jeopardy Clause. Accordingly, we affirm the judgment of the court of appeals.

II. Facts

{¶ 2} A jury convicted appellant, Danny Roberts, of five counts of gross sexual imposition. On August 12, 2004, the court sentenced Roberts to four years in prison for each count. Two counts were to be served consecutively to each other, and the other sentences were to be served concurrently to the remaining sentences, for a total sentence of eight years of incarceration. The trial court justified the sentence by finding pursuant to R.C. 2929.14(B) that the minimum sentence would not protect the public and would demean the seriousness of the offenses.

{¶ 3} Roberts appealed, arguing that the trial court erred when it sentenced him to more than the minimum sentence because judicial fact-finding violates the defendant's Sixth Amendment right to trial by jury. State v. Roberts, Hamilton App. Nos. C-040575 and C-050005, 2005-Ohio-4848, 2005 WL 2249106. The court of appeals agreed. Id. at ¶ 11. Following its prior decision in State v. Montgomery, 159 Ohio App.3d 752, 2005-Ohio-1018, 825 N.E.2d 250, which interpreted several United States Supreme Court cases, including Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, the court held that judge-made findings that affect sentencing violate a defendant's constitutional rights and that therefore the minimum sentence must be imposed. Id. at ¶ 13. Consequently, the court of appeals modified Roberts's sentence on each count to the one-year minimum, with two of the sentences to run consecutively but concurrently to the other convictions, for a total sentence of two years. Id. at ¶ 14.

{¶ 4} The state filed a timely appeal in this court. On October 20, 2005, the court of appeals stayed its judgment pending disposition of the state's appeal. On January 25, 2006, we accepted the state's discretionary appeal and held the cause for a decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

{¶ 5} On February 27, 2006, we held in Foster that a large portion of the state's sentencing statutes, including R.C. 2929.14(B), were unconstitutional. Id. at ¶ 97. We severed the unconstitutional provisions and held that "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at ¶ 99-100.

{¶ 6} On March 24, 2006, the Ohio Department of Rehabilitation and Correction ("ODRC") released Roberts from prison and placed him on postrelease control.

{¶ 7} On May 3, 2006, this court issued an entry remanding Roberts's cause for resentencing pursuant to Foster. In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174, ¶ 168. On remand, the trial court again imposed an eight-year sentence. In June 2006, Roberts was arrested and reincarcerated to serve the time remaining on the eight-year sentence.

{¶ 8} Roberts appealed, arguing that his resentencing violated the Double Jeopardy Clause. The court of appeals affirmed Roberts's sentence by entry. State v. Roberts (June 27, 2007), Hamilton App. No. 060675.

{¶ 9} This cause is now before us pursuant to our acceptance of Roberts's discretionary appeal. State v. Roberts, 116 Ohio St.3d 1437, 2007-Ohio-6518, 877 N.E.2d 989.

{¶ 10} Roberts argues that when a person serves a prison sentence imposed by a court of appeals and the ODRC releases him, rearresting and resentencing that person to additional time violate the Double Jeopardy Clause of the Ohio and United States Constitutions.

III. Analysis

{¶ 11} We begin our analysis by examining the Double Jeopardy Clauses at issue, which state, "[N]or shall any person be subject for the same offence to be put twice in jeopardy of life or limb," Fifth Amendment to the United States Constitution, and "No person shall be twice put in jeopardy for the same offense." Section 10, Article I, Ohio Constitution. The Double Jeopardy Clause protects persons from (1) "a second prosecution for the same offense after acquittal," (2) "a second prosecution for the same offense after conviction," and (3) "multiple punishments for the same offense." North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656. The rationale underlying double jeopardy protection "is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for the alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States (1957), 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199. "A primary purpose served by [the Double Jeopardy Clause] is akin to that served by the doctrines of res judicata and collateral estoppel—to preserve the finality of judgments." Crist v. Bretz (1978), 437 U.S. 28, 33, 98 S.Ct. 2156, 57 L.Ed.2d 24.

A. Sentences Subject to Review Have No Expectation of Finality

{¶ 12} The application of the Double Jeopardy Clause to a change in a sentence depends upon the extent and legitimacy of a defendant's expectation of finality. United States v. DiFrancesco (1980), 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328, addressed whether the government's appeal seeking to increase the defendant's criminal sentence violated the Double Jeopardy Clause by subjecting the defendant to multiple trials or multiple punishments for the same offense. The court stated, "The double jeopardy focus [is] to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury's verdict of acquittal." Id. at 132, 101 S.Ct. 426, 66 L.Ed.2d 328.

{¶ 13} The court began its analysis by recognizing that the "`constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal,'" even when it is "`based upon an egregiously erroneous foundation.'" DiFrancesco, 449 U.S. at 129, 101 S.Ct. 426, 66 L.Ed.2d 328, quoting Arizona v. Washington (1978), 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717, and Fong Foo v. United States (1962), 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629. Otherwise, "there would be an unacceptably high risk that the Government, with its superior resources, would wear down a defendant, thereby `enhancing the possibility that even though innocent he may be found guilty.'" Id. at 130, 101 S.Ct. 426, 66 L.Ed.2d 328, quoting Green v. United States (1957), 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199. Thus, acquittals are afforded "absolute finality" for purposes of applying double jeopardy protections. Id., quoting Burks v. United States (1978), 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1.

{¶ 14} But the court held that "a sentence does not have the qualities of constitutional finality that attend an acquittal." DiFrancesco, 449 U.S. at 134, 101 S.Ct. 426, 66 L.Ed.2d 328. In support of this premise, the court cited North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, in which the Court held that "there was no absolute constitutional bar to the imposition of a more severe sentence on reconviction after [a] defendant's successful appeal of the original judgment of conviction." Id. at 135, 101 S.Ct. 426, 66 L.Ed.2d 328.

{¶ 15} The court also held that the considerations that support the finality of an acquittal did not support the finality of a sentence. The court reasoned that the review of a sentence "does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence." DiFrancesco, 449 U.S. at 136, 101 S.Ct. 426, 66 L.Ed.2d 328. "The defendant's primary concern and anxiety obviously relate to the determination of innocence or guilt, and that already is behind him." Id. Thus, reviewing a sentence contains no risk of harassment by the government seeking to retry the defendant.

{¶ 16} Moreover, the court recognized that when the legislature has provided the government with a statutory right of appeal, "[t]he defendant * * * is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired." Id.

{¶ 17} In sum, a defendant's "legitimate expectations are not defeated if his sentence is increased on appeal any more than are the expectations of the defendant who is placed on parole or probation that is later revoked." Id. at 137, 101 S.Ct. 426, 66 L.Ed.2d 328. Thus, the court determined that "the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase." Id.

{¶ 18} The court also addressed whether the increase in the defendant's sentence constituted multiple punishments under the Double Jeopardy Clause. The court concluded that because Congress provided the government a right to appeal the defendant's sentence and the increased sentence was...