Jaramillo v. State

Attorney for Appellant Attorneys for Appellee

John Pinnow Steve Carter

Special Assistant to the Public Defender of Indiana

Attorney General of Indiana

Indianapolis, Indiana Indianapolis, Indiana

Christopher C.T. Stephen

Deputy Attorney General

Indianapolis, Indiana

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__

In the

Indiana Supreme Court

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No. 76S03-0503-CR-93

Valentin Jaramillo,

Appellant (Defendant below),

v.

State of Indiana,

Appellee (Plantiff below).

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Appeal from the Steuben County Superior Court, No. 76D01-0208-FB-924

The Honorable William C. Fee, Judge

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On Petition To Transfer from the Indiana Court of Appeals, No. 76A03-0306-

CR-209

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March 11, 2005

Sullivan, Justice.

At issue in this appeal is whether the Double Jeopardy Clause of the

U.S. Constitution bars re-trial of a habitual offender enhancement set

aside on appeal for insufficient evidence. Although this Court has often

held that it does, we conclude that those holdings are no longer good law

in light of Monge v. California, 524 U.S. 721 (1998).

Background

Following a collision in August, 2002, in which a man was killed,

Defendant Valentin Jaramillo was charged with Operating While Intoxicated

Causing Death,[1] a Class C felony. The State sought to have the offense

enhanced to a Class B felony on grounds that he had been convicted of

operating a vehicle while intoxicated in March, 1998, and sought to have

Defendant adjudicated a habitual substance offender on grounds of the

instant charge, the March, 1998, conviction, and a third conviction for

operating while intoxicated in June, 1997.[2] In a bifurcated proceeding,

a jury first found Defendant guilty of the Class C felony and then the

Class B felony and to be a habitual substance offender.

Defendant appealed the convictions, arguing that there was

insufficient evidence to support the enhancement of his conviction for

driving while intoxicated from a Class C felony to a Class B felony and

that there was insufficient evidence to support the determination that he

is a habitual substance offender.[3]

The Court of Appeals resolved both claims in Defendant’s favor,

finding that the State had failed to prove that a conviction was entered on

Defendant’s March, 1998, guilty plea. That offense was the predicate

offense for the Class B enhancement and a necessary predicate for the

habitual substance offender enhancement. Jaramillo v. State, 803 N.E.2d

243 (Ind. Ct. App. 2004). The State does not challenge this determination

on transfer. However, the Court of Appeals also held that federal double

jeopardy principles did not bar the State from retrying the defendant on

the Class B and habitual substance offender enhancements. Id. at 250.

Defendant seeks transfer on this issue.

Discussion

The Double Jeopardy Clause of the Fifth Amendment, applicable to the

States through the Fourteenth Amendment, provides, “Nor shall any person be

subject for the same offence to be twice put in jeopardy of life or limb.”

U.S. Const. amend. V. It protects against successive prosecutions for the

same offense after acquittal or conviction and against multiple criminal

punishments for the same offense. See United States v. Dixon, 509 U.S.

688, 695-96 (1993); North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

I

Both parties, as well as the Court of Appeals, suggest that the

resolution of this issue turns upon Monge v. California, 524 U.S. 721

(1998).

Monge arose under California’s so-called “three-strikes” law. After

the defendant in Monge had been convicted, the trial court judge enhanced

his sentence based on prior convictions and prison terms. Monge, 524 U.S.

at 725. The California Court of Appeal ruled that the evidence had been

insufficient to trigger the sentence enhancement because the prior

conviction allegations had not been proved beyond a reasonable doubt, and

that a remand for retrial on the sentence enhancement would violate double

jeopardy principles. Id. at 725-26. After the California Supreme Court

reversed the California Court of Appeal, the United States Supreme Court

affirmed the California high court and held that the Double Jeopardy Clause

did not preclude retrial on the prior conviction allegation. Id. at 734.

As such, Monge resolves in the State’s favor the issue presented in this

case.

Monge was decided before Apprendi v. New Jersey, 530 U.S. 466 (2000),

and contains a debate that foreshadows that momentous decision. In dissent

in Monge, Justice Scalia argued that the prior offense enhancement

constituted an element of the defendant’s offense and, therefore,

implicated Double Jeopardy principles. Monge, 524 U.S. at 740 (Scalia, J.,

dissenting). A majority of the Court rejected Justice Scalia’s argument,

both because the issue was not raised by the defendant and because the

argument was contrary to the Court’s then-controlling precedent on what

constituted “elements of an offense,” Almendarez-Torres v. United States,

523 U.S. 224 (1998). Monge, 524 U.S. at 728 (Almendarez-Torres, as well as

Monge, involved the question of whether the fact of prior conviction used

to support a recidivist enhancement constitutes as “element of an

offense.”). In 2000, the Supreme Court decided Apprendi, largely adopting

Justice Scalia’s views of what constitute elements of an offense as

expressed in his prior dissents in Monge and Alamendarez-Torres. Apprendi,

530 U.S. at 488-89 nn. 14 & 15. The question then, is whether Monge and

Almendarez-Torres were overruled by Apprendi or are distinguishable from

it.

Defendant contends that the practical effect of Apprendi was to

overrule Monge, because, according to his count, a majority of the members

of the Court have now taken positions contrary to its holding. The Court

of Appeals found Defendant’s argument to be “plausible” but refused to

speculate as to whether a majority of the Supreme Court would vote to

overturn Monge.[4] See Jaramillo v. State, 803 N.E.2d 243, 250 (Ind. Ct.

App. 2004). In point of fact, Apprendi discusses Monge without suggesting

that it is no longer good law. Apprendi, 530 U.S. at 488 n. 14. And last

year, the Court cited Monge in an opinion as standing for the proposition

that the “Double Jeopardy Clause does not preclude retrial on a prior

conviction used to support recidivist enhancement.” Dretke v. Haley, 124

S.Ct. 1847, 1853 (2004). Given that Apprendi exempts from its reach the

fact of a prior conviction, it makes sense that Monge, involving as it does

a fact of a prior conviction, would be distinguishable from Apprendi. See

Apprendi, 530 U.S. at 490 (concluding that “any fact that increases the

penalty for a crime beyond the prescribed statutory maximum, other than the

fact of a prior conviction, must be submitted to a jury and proved beyond a

reasonable doubt”) (emphasis added).

We hold that Monge is good law and permits the State to retry

Defendant.

II

Although Monge resolves the issue before us in the State’s favor, our

own precedents in this regard are such as to warrant additional discussion.

The general rule of sufficiency is that if a conviction is reversed on

appeal because the State failed to present sufficient evidence to support

the conviction beyond a reasonable doubt, the Double Jeopardy Clause

precludes retrial. Tibbs v. Florida, 457 U.S. 31, 41 (1982); Burks v.

United Sates, 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978).[5]

This Court has held on several occasions that, following a reversal on

appeal of a habitual offender enhancement on grounds of insufficient

evidence, the State is not permitted to retry the defendant on that

offense. Bell v. State, 622 N.E.2d 450, 456 (Ind. 1993); Powers v. State,

617 N.E.2d 545, 547 (Ind. 1993) (Dickson, J., concurring); Perkins v.

State, 542 N.E.2d 549 (Ind. 1989); Phillips v. State, 541 N.E.2d 925 (Ind.

1989). Monge holds to the contrary and overrules these four decisions (but

not the general rule that insufficiency of the evidence on any element

precludes retrial).

The history of this issue in our Court began with Durham v. State, 464

N.E.2d 321 (Ind. 1984), in which the defendant was initially convicted of

two underlying felonies but found not to be a habitual offender by a jury.

Durham, 464 N.E.2d at 323. Defendant filed a belated motion to correct

errors and the convictions were set aside. Id. The State then re-filed

charges on the two underlying counts as well as an amended habitual

offender count and obtained convictions. Id. On appeal, this Court held

that the defendant could be retried as a habitual offender even though the

jury during defendant’s first trial found that he was not. Id. at 324. At

that time, we reasoned that habitual criminality was a status for the

enhancement of punishment upon the conviction of an additional substantive

crime, was not a conviction of an additional crime, and was provided for

the purpose of more severely penalizing those persons whom prior sanctions

have failed to deter from committing felonies. Id. at 323-24.

In Perkins v. State, 542 N.E.2d 549 (Ind. 1989), we revisited this

issue and set aside our holding in Durham. After we reversed Defendant’s

habitual offender adjudication on grounds of insufficient evidence, the

State retried Defendant and a jury returned a verdict finding him to be a

habitual offender. Perkins, 542 N.E.2d at 550. Relying on the Supreme

Court’s holding in Lockhart v. Nelson, 488 U.S. 33 (1988), and citing its

holding in Burks v. United States, 437 U.S. 1 (1978), we concluded that

“because the Double Jeopardy Clause affords the defendant who obtains a

judgment of acquittal at the trial level absolute immunity from further

prosecution for the same offense it ought to do the same for the defendant

who obtains an appellate determination that the trial court should have

entered a judgment of acquittal.” Perkins, 542 N.E.2d at 551. In arriving

at our conclusion in Perkins, we explicitly overruled Durham. Id. at 552.

Perkins was later criticized by the Illinois Court of Appeals in

People v. Brooks, 559 N.E.2d 859 (Ill. Ct. App. 1990). In Brooks, the

defendant challenged the State’s ability to re-sentence him as a Class X

offender (an enhancement for prior convictions) under the Double Jeopardy

Clause in the event that the court found that the state had failed to

present sufficient evidence to sustain his initial conviction. Brooks, 559

N.E.2d at 860-61. The court reversed the defendant’s Class X offender

conviction but held that he could be re-sentenced on that charge. Id. at

869. The Illinois court found our reasoning in Durham to have been more

persuasive than Perkins. Id. at 866 n.3.

Conclusion

We now hold, in accordance with Monge, that the Double Jeopardy Clause

does not prevent the State from re-prosecuting a habitual offender

enhancement after conviction therefore has been reversed on appeal for

insufficient evidence.

We grant transfer pursuant to Indiana Appellate Rule 58(A), summarily

affirm the opinion of the Court of Appeals as to the issue discussed in

footnote three, and remand this case to the trial court.

Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J.,

concurs in result.

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[1] Ind. Code § 9-30-5-5 (2004).

[2] Ind. Code § 35-50-2-10 (2004).

[3] Defendant also argued that the trial court had “erred in ordering

restitution without fixing the manner of performance.” Br. of Appellant-

Def. at 23. The Court of Appeals remanded with instructions on this issue.

Jaramillo v. State, 803 N.E.2d 243, 251 (Ind. Ct. App. 2004). Neither

Defendant nor the State challenge this determination on transfer. We

summarily affirm the decision of the Court of Appeals on this issue. Ind.

Appellate Rule 58(A)(2).

[4] Cf. Shepard v. United States, 2005 U.S. LEXIS 2205 (U.S. Mar. 7, 2005)

(Thomas, J., concurring), where Justice Thomas observes that “a majority of

the Court now recognizes that Almendarez-Torres was wrongly decided,”

counting the votes of four dissenters in Almendarez-Torres and himself.

(Justice Thomas was in the majority in Almendarez-Torres.) But he clearly

acknowledges that Almendarez-Torres is still good law until the Court

overrules it.

[5] Retrial following reversal for improperly admitted evidence does not

violate the Double Jeopardy Clause so long as all the evidence, even that

erroneously admitted, is sufficient to support the jury verdict. See,

e.g., Lockhart v. Nelson, 488 U.S. 33, 34 (1988) (holding that a defendant

who succeeds in having a conviction set aside because of trial error may be

retried for the same offense without violating the Double Jeopardy Clause

of the U.S. Constitution); Carpenter v. State, 786 N.E.2d 696, 705 (Ind.

2003); Stahl v. State, 686 N.E.2d 89, 94 (Ind. 1997); Everroad v. State,

590 N.E.2d 567, 571 (Ind. 1992); Perkins v. State, 542 N.E.2d 549, 551

(Ind. 1989). The Court of Appeals recently held to the contrary in Serrano

v. State, 808 N.E.2d 724 (Ind. Ct. App. 2004), transfer denied, 2004 Ind.

LEXIS 887. The opinion of the Court of Appeals in Serrano is disapproved.