State v. Workman

• Decision Date: 13 October 2015
• Docket Number: Case No. 14CA25
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. ELY F. WORKMAN, Defendant-Appellant.
• Court: Ohio Court of Appeals

2015 Ohio 4483

STATE OF OHIO, Plaintiff-Appellee, v. ELY F. WORKMAN, Defendant-Appellant.

Case No. 14CA25

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

October 13, 2015

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Timothy Young, Ohio Public Defender, and Carrie Wood, Assistant State Public Defender, Columbus, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for appellee.

CRIMINAL CASE FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This is an appeal from an Athens County Common Pleas Court judgment that denied a motion to dismiss an indictment filed by Ely F. Workman, defendant below and appellant herein. Appellant raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED WHEN IT HELD THAT ELY WORKMAN'S INDICTMENT FOR RECEIVING STOLEN PROPERTY DID NOT VIOLATE DOUBLE JEOPARDY

PRINCIPLES AS A SUCCESSIVE PROSECUTION FOR AN ALLIED OFFENCE [SIC] OF SIMILAR IMPORT."

SECOND ASSIGNMENT OF ERROR:

"MR. WORKMAN WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL MISADVISED THE TRIAL COURT REGARDING WHETHER HIS CLIENT COULD BE CONVICTED FOR ALLIED OFFENSES OF SIMILAR IMPORT."

{¶ 2} This case involves two criminal prosecutions against appellant. On July 22, 2013, McArthur Police Department Chief Tony Wood filed a complaint in the Vinton County Court that charged appellant with grand theft of a motor vehicle, in violation of R.C. 2913.02(A)(3). The complaint alleged:

"On or about July 16, 2013, in Vinton County, Ohio, Ely Franklin Workman did, with purpose to deprive Flossie Coleman, the owner, of her property, did knowingly obtain and exert control over said property, to wit: a 1996 Jeep Cherokee: by deception; in violation of [R.C. 2913.02(A)(3) and 2913.02(B)(5)."

On August 1, 2013, appellant entered a guilty plea to an amended charge of unauthorized use of a motor vehicle in violation of R.C. 2913.03(A). The Vinton County Court found appellant guilty of unauthorized use of a motor vehicle.

{¶ 3} On August 12, 2013, an Athens County Grand Jury returned an indictment that charged appellant with receiving stolen property, in violation of R.C. 2913.51(A). The indictment alleged:

"On or about [July 17, 2013], in the County of Athens, [appellant] unlawfully did receive, retain, or dispose of 1996 Jeep, the property of Flossie Coleman, knowing or having reasonable cause to believe that the property had been obtained through commission of a theft offense and the property involved was a motor vehicle."

{¶ 4} On December 4, 2013, appellant filed a motion to dismiss the receiving stolen property indictment and asserted that the indictment violated his Fifth Amendment right against double jeopardy. Appellant argued that because the Vinton County Court convicted him of unauthorized use of the same motor vehicle alleged to have been involved in the receiving stolen property offense, the state could not prosecute him again for a crime that involved the same vehicle.

{¶ 5} The state countered that the receiving stolen property offense is a separate offense that occurred at a different time, in a different jurisdiction, and involved different actions.

{¶ 6} On June 13, 2014, the trial court denied appellant's motion to dismiss.¹ This appeal followed.

I

{¶ 7} In his first assignment of error, appellant asserts that the trial court erred by denying his motion to dismiss the indictment because the court wrongly determined that the Double Jeopardy Clause does not bar the state from prosecuting him for receiving stolen property. Appellant argues that (1) the Double Jeopardy Clause prohibits a successive prosecution forreceiving stolen property because receiving stolen property is an allied offense of similar import to the crime with which Vinton County originally charged him (grand theft of a motor vehicle); and (2) he entered a negotiated plea in the Vinton County case and, thus, had a reasonable expectation that his guilty plea to unauthorized use of a motor vehicle would end further criminal prosecution based upon the incident.

{¶ 8} The state disputes appellant's argument that the Double Jeopardy Clause bars a successive prosecution for receiving stolen property. The state argues that appellant incorrectly employs an allied offense analysis to determine whether the Double Jeopardy Clause bars a successive prosecution and that R.C. 2941.25, the multiple count statute, does not govern the analysis to determine whether the Double Jeopardy Clause prohibits a successive prosecution. Rather, the state contends that the test set forth in United States v. Blockburger, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 305 (1932), provides the proper analysis to determine whether the Double Jeopardy Clause bars a successive prosecution for receiving stolen property.

ASTANDARD OF REVIEW

{¶ 9} We apply a de novo standard of review when reviewing a trial court's decision to deny a motion to dismiss on double jeopardy grounds. State v. Trimble, 4th Dist. Pickaway No. 13CA8, 2013-Ohio-5094, ¶5. We thus afford no deference to the trial court's decision, but instead independently review the record to ascertain whether the trial court's decision is legally correct. E.g., Dolan v. Glouster, 4^th Dist. Athens Nos. 11CA18, 11CA19, 11CA33,12CA1, and 12CA6, 2014-Ohio-2017, ¶106.

B DOUBLE JEOPARDY CLAUSE

{¶ 10} The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." This means that when "'a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.'"² Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), quoting In re Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 33 L.Ed.2d 119 (1889). Thus, the Double Jeopardy Clause "'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'" Brown, 432 U.S. at 165, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

{¶ 11} The case at bar involves a second prosecution following a conviction and whether that second prosecution is for the "same offense." Thus, we must decide whether appellant's prior unauthorized use of a motor vehicle conviction bars his subsequent prosecution for receiving stolen property involving the same vehicle.

{¶ 12} To determine whether the Double Jeopardy Clause bars a second, or successive, prosecution, a court must apply the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). State v. Fairbanks, 117 Ohio St.3d 543, 2008-Ohio-1470, 885 N.E.2d 888, ¶6 (explaining that Blockburger governs analysis when determining if Double Jeopardy Clause bars successive prosecution); State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶¶18-20 and fn. 3 (stating that Blockburger supplies appropriate test when considering if Double Jeopardy Clause bars successive prosecution); State v. Tolbert, 60 Ohio St.3d 89, 573 N.E.2d 617 (1991), paragraph one of the syllabus (applying Blockburger test in subsequent prosecution context); Trimble at ¶7.

{¶ 13} The R.C. 2941.25 multiple count statute and allied offense analysis do not apply when examining a double jeopardy claim based upon a successive prosecution. Zima at fn. 3 (stating that when a case "involves only the issues of successive prosecutions, it is not controlled by R.C. 2941.25 or Rance"); State v. Woodruff, 3^rd Dist. Logan No. 8-14-21, 2015-Ohio-1342, ¶9; In re A.G., — Ohio App.3d —, 2014-Ohio-4927, 21 N.E.3d 355, ¶9 (8^th Dist.) (recognizing different analyses apply); State v. Thompson, 1^st Dist. Hamilton No. 130053, 2013-Ohio-2647, ¶1 and ¶5; State v. Mullins, 5^th Dist. Fairfield No. 12CA17, 2013-Ohio-1826, ¶14; State v. Lamp, 9^th Dist. Summit No. 26602, 2013-Ohio-1219, ¶¶7-8 (stating that "standard for determining whether a successive prosecution violates the double jeopardy clause is separate and distinct from the allied offenses standard set forth in R.C. 2941.25"); State v. Volpe, 10^th Dist. Franklin No. 06AP-1153, 2008-Ohio-1678, ¶64; State v. Bentley, 4^th Dist. Athens No. 01CA13 (Dec. 6, 2001), fn. 3. We therefore reject appellant's assertion that R.C. 2941.25 and the allied offense analysis govern our disposition of this appeal.

{¶ 14} We do recognize, however, that some of our prior opinions, as well as opinions from other Ohio appellate courts, appear to indicate that an allied offense analysis may apply when determining if a successive prosecution in a separate jurisdiction violates double jeopardy principles. In State v. Morgan, 4^th Dist. Ross No. 12CA3305, 2012-Ohio-3936, which appellant cites in his brief, and in State v. Clelland, 83 Ohio App.3d 474, 615 N.E.2d 276 (4^th Dist. 1992), we set forth the following analysis that a court should apply to determine whether successive prosecutions in separate jurisdictions violate double jeopardy principles:

"When an offender, as part of a course of criminal conduct commits offenses in different jurisdictions, he may be tried for all of those offenses in any jurisdiction in which one of those offenses occurred. R.C. 2901.12(H). In [State v. Urvan, 4 Ohio App.3d 151, 446 N.E.2d 1161 (8^th Dist. 1982)], the Eighth District Court of Appeals held that once one jurisdiction takes action first, it preempts venue and jurisdiction for the whole matter, and jeopardy must attach as a result of the activity of the first actor. See, also, State v. DeLong (1990), 70 Ohio App.3d 402, 591 N.E.2d 345. In reaching their holdings, the Urvan (theft and receiving stolen property) and DeLong (robbery and receiving stolen property) courts emphasized that the offenses

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