Petition — Ohio v. Johnson

Oe "Supreme Court, 0S

83-904 FILED

NOV 28 i993

No.

ALEXANDER L. STEVAS,

In the Supreme Court of the United States

October Term, 1983

THE STATE OF OHIO,

Petitioner,

vs.

KENNETH M. JOHNSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of Ohio

JoHN E, SHoop, Prosecuting Attorney

of Lake County, Ohio

Counsel of Record

Rosert W. LAForcE

JUDSON J. HAWKINS

Assistant Prosecuting Attorneys

47 North Park Place

P.O. Box 490

Painesville, Ohio 44077

(216) 357-2683

Attorneys for Petitioner

ALBERT L. PUROLA

38052 Euclid Avenue, #201

Willoughby, Ohio 44094

(216) 951-2323

Attorney for Respondent

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

I.

QUESTIONS PRESENTED FOR REVIEW

Whether the double jeopardy protections of the United

States Constitution prohibit the continued prosecu-

tion of a defendant charged in a single, multiple

count indictment of arguably greater and lesser in-

cluded offenses, where the defendant persuades the

trial court prior to trial, to accept his guilty pleas to

the lesser counts of the indictment, where the state

criminal code provides for crediting time served, con-

current sentencing and vacation of earlier judgments

of conviction.

Whether the double jeopardy clause of the United

States Constitution prohibits the continued prosecu-

tion of a criminal defendant, charged in a single,

multiple count indictment containing greater and

lesser included offenses, where that defendant per-

suades the trial court to honor his election to plead

guilty to the lesser offenses over the state’s objections.

Whether murder as defined in Ohio Revised Code

Section 2903.02 and Involuntary Manslaughter as de-

fined in Ohio Revised Code Section 2903.04 are the

same offenses for purposes of the double jeopardy

provision precluding multiple punishments for both

those offenses.

TABLE OF CONTENTS

Questions Presented for Review .........2........-.cccccceseceeeeeeeee

Opinions of the Court Below 200..0.........cccecscseeeeseeeeseeeeneeeees

Statement of the Grounds on Which the Jurisdiction

GE Tiades Cooeart Te Te VONO nn... .cc. a inccccncccesnnseceeee

Constitutional and Statutory Provisions Which the

MEINE datesitepesesiescnscensenconies

ERLE A

Arguments Relied Upon for Allowance of writ aarrees

I. The double jeopardy protections of the United

States Constitution do not prohibit the contin-

ued prosecution of a defendant charged in a

single, multiple count indictment of arguably

greater and lesser included offenses, where

that defendant persuades the trial court to

accept his guilty pleas to the lesser counts of

the indictment, where the state criminal code

provides for crediting time served, concurrent

sentencing and vacation of earlier judgments

of conviction

II. The double jeopardy clause of the United

States Constitution does not prohibit the con-

tinued prosecution of a criminal defendant,

charged in a single, multiple count indictment

containing greater and lesser included of-

fenses, where that defendant persuades the

trial court to honor his election to plead guilty

to the lesser offenses over the state’s objec-

tions ;

III. Murder as defined in Ohio Revised Code Sec-

tion 2903.02 and involuntary manslaughter as

11

NY Soha =

J

IV

defined in Ohio Revised Code Section 2903.04

are not the same offenses for purposes of

double jeopardy protections where both stat-

utes contain different elements and conviction

for either offense would require proof of facts

not necessary to sustain conviction on the

COE Sasnniewitesiectiienieqenis vecinehotigncdnaninesnccimihpaillctnms 14

am secede cctesrssstcicriinreitnstniesnepectasitnecieciinsenetannpitanadsesiainas 15

Appendix:

Opinion and Dissenting Opinion of the Supreme Court

OE CRS: CIS GES BO) cictiieciccsiscnettiterettin nto Al

Order of the Supreme Court of Ohio (August 31, 1983)

Appeals for the Eleventh Appellate District (April

1, 1982) sioicnanabiainatieaeaniaie Al4

Judgment Entry and Opinion of the Lake County Court

of Common Pleas (March 31, 1981) ~..................2.....-+ A21

Judgment Entry of the Supreme Court of Ohio (Au-

gust 31, 1983) A25

Ohio Rev. Code § 2903.02(A) (B) A26

Ohio Rev. Code § 2903.04(B)(C) .. .. A26

Ohio Rev. Code § 2911.01(A) (B) 0..........cecsecseseseseeeeeeees AZ6

Ohio Rev. Code § 2913.02(A) (B) ... A27

Ohio Rev. Code § 2941.25(A) ... A27

A28

A28

A29

A29

A29

Ohio Rev. Code § 2929.41(A) (B) ‘Ss

Ohio Rev. Code § 2953.21(A)(G) cccccscsscccssssscsssssssesseen

Ohio Rev. Code § 2967.191 ..............

U.S. Const., Amend. 5 .......sccs

U.S. Const., Amend. 14, § 10.2...

TABLE OF AUTHORITIES

Cases

Alford v. North Carolina, 400 U.S. 25, 91 S. Ct. 160,

27 L. Ed. 2d 162 (1970) .................. 8

Bailey v. Rose, 378 F. Supp. 227 (E.D. Tenn., 1974) . 8

Blockburger v. United States, 284 U.S. 299, 52 S. Ct.

ee FeO SF Sc: ener oe 9, 14, 15

Green v. United States, 40 App. D.C. 426, 46 LRA,

WB 2137 (CA, DiC, 1918) ccccccccscocideces: 8

Jeffers v. United States, 432 U.S. 137, 97 S. Ct. 2207,

53 L. Ed. 2d 168 (1977) .................... seeeeee OQ, 11, 13

Longfellow v. New York, 404 US. 257, 92 S. Ct. 495,-

30 L. Ed. 2d 427 (9th Cir., 1971) 8

Lynch v. Overholser, 369 U.S. 705, 82 S. Ct. 1063, 8

L. Ed. 2d 211 (1962) ............... 8

North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072,

23 L. Ed. 2d 656 (1969) 8, 9, 10

Singer v. United States, 380 U.S. 24, 85 S. Ct. 783, 13

L. Ed. 2d 630 (1965) ......... 8

United States v. Biscoe, 518 F.2d 95 (1st Cir., 1975) .... 8

United States v. Gray, 448 F.2d 164 (1971) ......0.00000....... 8

United States v. Willis, 75 F. Supp. 628 (D.C., D.C.,

1948) 8

Constitutional Provisions and Statutes

U.S. Const., Amend. 5 .. 2,12, 15

U.S. Const., Amend. 14, § 1 ................. 2

Ohio Rev. Code § 2903.02(A) (B) ............. 2,3

Ohio Rev. Code § 2903.04(B)(C) ..... 2, 3,14

vI

Ohio Rev. Code § 2911.01(A) (B)

Ohio Rev. Code § 2913.02(A)(B) --...-.----.-..:-::0++

Ohio Rev. Code § 2941.25(A) .........-..::s0

Ohio Rev. Code § 2929.41(A) (B) ........ccccccceee

Ohio Rev. Code § 2953.21(A) (G) -......0....0.000..

Gaile Ty: Cate 6 FIC cscetlctdicictcecctertinee

is

No.

In the Supreme Court of the United States

October Term, 1983

THE STATE OF OHIO,

Petitioner,

Va.

KENNETH M. JOHNSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of Ohio

To: The Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

OPINIONS OF THE COURT BELOW

The Official Report of the Opinion by the Supreme

Court of Ohio affirming the judgment of the Ohio Court

of Appeals for the Eleventh District. Appendix at p. Al.

The Judgment Entry and Opinion of the Ohio Court

of Appeals for the Eleventh District affirming the judg-

ment of the Court of Common Pleas, Lake County, Ohio.

Appendix at p. Al4.

The Judgment Entry and Opinion of the Court of

Common Pleas, Lake County, Ohio, granting the Defen-

dant’s Motion to Dismiss the charges of Murder and Ag-

gravated Robbery. Appendix at p. A21.

i.

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED

The judgment of the Supreme Court of Ohio was

entered on August 31, 1983. No Motion for Rehearing

was filed. The jurisdiction of this Court is invoked under

Title 28, United States Code Section 1257 (3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

WHICH THE CASE INVOLVED

The relevant constitutional and statutory provisions

involved herein are set forth in Appendix at p. A26.

(5th Amendment)

(14th Amendment)

Ohio Revised Code, Section 2903.02(A) (B) Murder

Ohio Revised Code, Section 2903.04(B) (C) Involuntary

Manslaughter

Ohio Revised Code, Section 2911.01(A)(B) Aggra-

vated Robbery

Ohio Revised Code, Section 2913.02(A) (B) Theft

Ohio Revised Code, Section 2941.25(A) Multiple

Counts

Ohio Revised Code, Section 2929.41(A)(B) Multiple

Sentences

Ohio Revised Code, Section 2953.21(A)(G) Petition

to Vacate or Set Aside Sentence

Ohio Revised Code, Section 2967.191 Reduction of Min-

imum and Maximum Sentence ,

STATEMENT OF THE CASE

In the early morning hours of January 25th, 1983,

one Thomas Hill was shot to death at his apartment in

the City of Mentor-on-the-Lake, Lake County, Ohio. At

the time of the killing of Thomas Hill several items of

his personal property were stolen from his apartment.

The Defendant-Respondent and two Co-Defendants

were arrested in connection with the slaying less than

twelve hours later. A preliminary hearing was held

within five days of those arrests in the Mentor Municipal

Court, and due to a City Prosecutor’s error, all charges

were dismissed against the Defendant-Respondent and his

bond was released.

On February 13, 1979, the Lake County Grand Jury

found probable cause existed to believe that the Defendant-

Respondent had violated four separate criminal statutes

and returned a single Secret Indictment charging the De-

fendant-Respondent with one count of Murder in violation

of Ohio Revised Code Section 2903.02(A), one count of

Involuntary Manslaughter in violation of Ohio Revised

Code Section 2903.04(B), one count of Aggravated Robbery

in violation of Ohio Revised Code Section 2911.01(A) (1),

and one count of Grand Theft in violation of Ohio Revised

Code Section 2913.02(A) (1), in Case No. 79-CR-048.

Prior to the action of the Grand Jury the Defendant-

Respondent absented himself from the jurisdiction of Lake

County and it was not until nearly two years after Thomas

Hill’s death that he was arrested in the State of Tennessee.

Upon his apprehension and return to Ohio, the Defendant-

Respondent was brought before a Lake County Common

Pleas Judge for purposes of arraignment on October 9,

4

1980. At that hearing the Defendant-Respondent proffered

“Guilty” pleas to the charges of Involuntary Manslaughter

and Grand Theft and “Not Guilty” pleas to the charges

of Murder and Aggravated Robbery. The State of Ohio

objected to the proffer of the guilty pleas and the arraign-

ing judge reserved ruling on whether or not he was obli-

gated to accept the pleas. Bond was set in the matter

and the case was subsequently assigned to the trial court.

The trial court was faced with the issue of whether or

not it should accept the proffered guilty pleas to the lesser

offenses.

Following written arguments by both sides and over

the vehement objections of the State of Ohio, the Defen-

dant-Respondent, at a hearing on November 26, 1980, per-

suaded the trial court to exercise its discretion in favor

of accepting his guilty pleas to the lesser indicted offenses

of Involuntary Manslaughter and Grand Theft. The Court

then sentenced Defendant-Respondent to three to ten years

on the Involuntary Manslaughter count and two to five

years on the Grand Theft count with those sentences to

run consecutively.

Following those pleas the Defendant-Respondent

moved to dismiss the remaining counts of Murder and

Grand Theft on Double Jeopardy grounds arguing con-

tinued prosecution amounted to multiple prosecutions for

the same offense and invoking the doctrine of collateral

estoppel. The trial court granted the Motion to Dismiss

following briefs and arguments in its Judgment Entry

and Opinion of March 31, 1981 (See Appendix at p. A21).

Thereupon the State of Ohio filed an appeal of the

trial court’s dismissal of the remaining counts with the

Court of Appeals of Ohio, Eleventh District, Lake County,

Case No. 8-221. The State Court of Appeals, in its Judg-

a

a

a

es

4

5

ment Entry and Opinion of April 1, 1982, affirmed the

trial court’s dismissal of the counts in the indictment charg-

ing Murder and Aggravated Robbery (See Appendix at

p. Al4).

The Supreme Court of Ohio affirmed the decisions

of the Court of Appeals on August 31, 1983, in Case No.

82-657, and found that Aggravated Robbery and Grand

Theft were allied offenses of similar import pursuant to

Ohio Revised Code Section 2941.25(A) and that since Mur-

der and Involuntary Manslaughter share the common ele-

ment of causing the death of another and are distinguish-

able only by the defendant’s mental state, the defendant,

in any single killing could only be convicted of one of-

fense or the other but not both. In so finding the Court

held that in this case the Double Jeopardy provision pro-

hibiting multiple punishments for the same offense would

be violated by further prosecution of the Defendant-Re-

spondent (See Appendix at p. Al).

ARGUMENTS RELIED UPON FOR ALLOWANCE

OF WRIT

I. The double jeopardy protections of the United

States Constitution do not prohibit the continued

prosecution of a defendant charged in a single,

multiple count indictment of arguably greater and

lesser included offenses, where that defendant

persuades the trial court to accept his guilty pleas

to the lesser counts of the indictment, where the

state criminal code provides for crediting time

served, concurrent sentencing and vacation of

earlier judgments of conviction.

The issues presented in this case involve substantial

constitutional questions as well as being of great general

and public importance.

The State of Ohio has a legitimate interest in seeing

that any and all issues involving criminal conduct are re-

solved in one proceeding and that criminal conduct is

fully punished. This is particularly the case where a

Grand Jury has determined that probable cause exists to

believe that the conduct of a defendant has resulted in

the violation of several statutes and those violations have

been presented for consideration in a single indictment.

The issues presented in the case at bar have a signifi-

cance to American jurisprudence far beyond the individual

rights of this Defendant-Respondent. specially since, as

will be argued later, the Defendant-Respondent has had no

constitutionally guaranteed rights violated by the State of

Ohio. But rather, the Defendant-Respondent has, through

an errant trial court’s abuse of discretion, been allowed to

plead guilty to the crimes of his choice, raise the spector of

7

the Double Jeopardy Provision, and thereby deprive the

people of Ohio their right to have the issues raised in the

Indictment litigated and resolved before a court of law.

This is a radical and, indeed, a sinister departure for

the Courts of the United States. The hallmark and foun-

dation of the American system of jurisprudence has been

its unswerving adherence to the belief that both parties

to a legal action should be dealt with equitably, and that

both sides should have an equal and fair opportunity to

present the facts to a finder of fact, be it Judge or jury.

In past criminal cases the people were deprived of that

right to present facts only when they had violated some

constitutionally or statutorily guaranteed rights of the

Defendant. In those cases, the Courts have ruled, the

concepts of equity and fairness to both parties has man-

dated that the State be deprived of the right to proceed,

in part or whole, with the factual issues. In other words

when certain evidence, whether crucial or peripheral, was

suppressed.

In the case at bar, however, the State of Ohio has not

violat~d the Defendant-Respondent’s rights in any way. It

brought the facts before a Grand Jury which duly, and

legally, indicted the Defendant-Respondent for Several

separate crimes involving the same factual issues. The

State of Ohio has, throughout these proceedings, attempted,

indeed begged, to be able to present the facts of this case

in a single proceeding. It has been the Defendant-Respon-

dent who has made every effort to separate and bifurcate

these proceedings. If the Defendant-Respondent is allowed

to do this, he will have successfully evaded the just pros-

ecution of his criminal acts, deprived the people of Ohio

of their rights and, more importantly, laid the groundwork

for future Defendants to similarly thwart justice.

,

\e

The most frustrating and frightening factor of the

Ohio Supreme Court’s decision is that it so clearly ignores

and contradicts the established case law. It has been. long

established that people have a right to present the factual

issues of their case to a finder of fact. United States v.

Gray, 448 F.2d 164 (1971); Singer v. United States, 380

U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965). Further-

more, there is abundant case law which establishes that

the Defendant does not have a constitutionally guaranteed

right to demand that a Court accept his guilty plea. Alford

v. North Carolina, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed, 2d

162 (1970); Longfellow v. New York, 404 U.S, 257, 92

S. Ct. 495, 30 L. Ed. 2d 427 (9th Cir., 1971); Lynch v. Over-

holser, 369 U.S. 705, 82 S. Ct. 1063, 8 L. Ed. 2d 211 (1962);

United States v. Biscoe, 518 F.2d 95 (1st Cir., 1975); Bailey

v. Rose, 378 F. Supp. 227 (E.D. Tenn., 1974); Green v.

United States, 40 App. D.C. 426, 46 LRA, NS, 1117 (C.A,,

D.C., 1913); United States v. Willis, 75 F. Supp. 628 (D.C.,

D.C., 1948).

This Defendant-Respondent has obviously sought to

distort the law in an effort to avoid the prosecution of

his crimes. He was allowed to plead guilty over the ob-

jections of the people. Following his plea of guilty, he

attempted to, and may succeed in, using the Double

Jeopardy Provisions of the Sixth Amendment in an un-

precedented manner. A manner which protects the De-

fendant-Respondent but in the process denies the people

of their right to a trial.

The Supreme Court for the State of Ohio has de-

termined that where a Defendant persuades a trial court

to accept his guilty pleas to lesser indicted offenses, the

prohibition against imposing multiple punishments for the

same offense, North Carolina v. Pearce, 395 U.S. 711, 89

S. Ct. 2072, 23 L. Ed. 2d 656 (1969), precludes the State

*

.

3 —

SO) ae)

from proceeding any further in trying to have the issues

of the Defendant-Respondent’s culpability fully resolved

by a trier of fact, in one judicial inquiry.

In so holding, the Supreme Court of Ohio has misap-

plied the holdings of this Court in Pearce, supra, and

its progeny with regard to what constitutes a violation

of the Double Jeopardy prohibition against imposing mul-

tiple sentences for the same offenses.

The holding of this Court in Pearce, supra, does not

bar the State from continuing its single prosecution of

the Defendant-Respondent. Assuming arguendo, that the

counts of the indictment pleaded to by the Defendant-

Respondent are the same offenses as the remaining counts,

pursuant to Blockburger v. United States, 284 U.S. 299,

52 S. Ct. 180, 76 L. Ed. 306 (1932), then the trial court

would be precluded from further sentencing upon convic-

tion, without giving credit for time served for the lesser

offenses pursuant to Ohio Revised Code Section 2967.191.

Further, Ohio Revised Code Section 2953.21 would permit

the trial court to vacate the judgments of conviction for

the lesser offenses thus preventing the Defendant-Respon-

dent from multiple convictions and punishments.

As this Court has held, the constitutional prohibition

against imposing multiple punishments does not preclude

a continuation of the Defendant-Respondent’s criminal pro-

ceeding, but only requires that “punishment already ex-

acted be fully ‘credited’ in imposing sentence upon a new

conviction for the same offense.” Pearce, supra, at 718,

719.

It should also be noted that the multiple punishment

provision of the Double Jeopardy Clause prohibits only

cumulative or consecutive sentencing for the same offenses

and does not preclude sentencing which in the aggregate

10

does not exceed the maximum allowable for the greater

offense where separate sentencing is necessitated by the

Defendant’s own actions. Jeffers v, United States, 432

US. 137, 97 S. Ct. 2207, 53 L. Ed. 2d 168 (1977). Thus

upon the continuation of the Defendant-Respondent’s crim-

inal proceeding to conviction of the greater offenses, the

trial court’s sentencing to concurrent terms of imprison-

ment pursuant to Ohio Revised Code Section 2929.41 would

be perfectly within any constitutional limitations upon

multiple punishments for the same offense.

Thus, it is clear that the Supreme Court of Ohio erred

in its application of the prohibition against multiple punish-

ments for the same offenses enunciated in Pearce, supra,

in the case at bar. The State of Ohio should be permitted

to continue its prosecution of the Defendant-Respondent

on the charges of Murder, notwithstanding his guilty plea

to Involuntary Manslaughter. Further, the State of Ohio

should be permitted to continue is prosecution of Defen-

dant-Respondent for Aggravated Robbery even though the

Supreme Court of Ohio has held that Grand Theft is an

“allied offense of similar import” of Aggravated Robbery

pursuant to Ohio Revised Code Section 2941.25. That stat-

ute is a statutory embodiment of the federal double jeop-

ardy guarantees; however, the lower court erroneously

held that the prohibition against imposing multiple sen-

tences for the same offenses under Pearce, supra, precludes

continued prosecution on the charge of Aggravated Rob-

bery.

11

II. The double jeopardy clause of the United States

Constitution does not prohibit the continued prose-

cution of a criminal defendant, charged in a

single, multiple count indictment containing

greater and lesser included offenses, where that

defendant persuades the trial court to honor his

election to plead guilty to the lesser offenses over

the state’s objections.

In the case at bar the Lake County Grand Jury in-

dicted the Defendant-Respondent in a single, multiple

count indictment charging the offenses of Murder, Invol-

untary Manslaughter, Aggravated Robbery and Grand

Theft. These charges were presented to the trial court

under Case No. 79-CR-048. At his initial appearance, the

Defendant-Respondent proffered Guilty pleas to Involun-

tary Manslaughter and Grand Theft and Not Guilty pleas

to the offenses of Murder and Grand Theft. The State of

Ohio asked the trial court not to accept the Defendant-

Respondent’s Guilty pleas in an attempt to have all issues

resolved in one proceeding. After having briefs and argu-

ment submitted to the Court, the Defendant-Respondent

persuaded the trial court to accept his Guilty pleas to the

lesser offenses, over the State’s vehement objections.

This situation is on all fours with the situation this

Court faced in deciding Jeffers v. United States, 432 U.S.

137, 97 S. Ct. 2207, 53 L. Ed. 2d 168 (1977). In that

case a Defendant had opposed the Government’s attempt

to consolidate separate indictments charging arguably

greater and lesser included offenses. There, as in the

instant case, the Defendant was responsible for thwarting

the Government’s attempt to have the issue of the Defen-

dant’s culpability resolved in one proceeding. The De-

fendant in that case was convicted of the lesser offense

and moved to dismiss the indictment charging the greater

12

offense. That motion was denied by the District Court

and the Defendant was convicted of the greater offense.

This Court did not reach the issue of whether the

two offenses were the same for Double Jeopardy purposes

but held that where the need for separate trials was created

solely by the actions of the Defendant, he has deprived

himself of any right he may have had to the Double

Jeopardy protection of the Fifth Amendment. This Court

concluded that the policy behind the Double Jeopardy

Clause is not offended by continued prosecution in such

a situation. The State of Ohio has engaged in no overreach-

ing in this case or ever attempted to force the Defendant-

Respondent to “run the judicial gauntlet” more than once.

These are quite clearly the policy reasons behind the

Double Jeopardy Clause.

In the case at bar, the State did not attempt to subject

this Defendant-Respondent to repeated efforts to secure a

conviction. The State merely attempted to present in one

judicial proceeding, with one criminal case number, all the

offenses for which the Lake County Grand Jury found prob-

able cause to believe had been committed by the Defendant-

objected to the trial court’s acceptance of the proffered

guilty pleas anticipating the Defendant-Respondent’s at-

tempt to artificially bifurcate the proceedings so as to

wield the Double Jeopardy Clause to carve two prosecu-

tions from what was in reality only one.

The Supreme Court of Ohio stated in the final para-

graph of its opinion that the State cannot complain of

problem it created by bringing charges for two

where only one conviction was possible. Here the Court

ignores the function of a Grand Jury. The Grand Jury's

function is to determine whether or not there is sufficient

I

13

evidence available to the State to establish that probable

cause exists to believe that a criminal offense has occurred

and that particular defendant committed that offense. They

are given the facts of a case through evidence available to

the State. It does not hear evidence known only to the

Defendant, but which may be adduced at trial nor is it to

weigh the evidence by the same standard as that which a

petit jury would apply in a jury trial. Obviously evidence

which would support a finding of probable cause may not be

sufficient to support a conviction for any offense. That be-

ing the case there is absolutely nothing wrong with a Grand

Jury finding that probable cause exists under two distinct

homicide statutes even though there may be but one victim

involved. The question of which offenses the defendant is

guilty of, beyond a reasonable doubt, is for a petit jury

to decide. The State should not be precluded from a jury

determination of the Defendant-Respondent’s culpability

where the Grand Jury and the State of Ohio sought to have

that issue resolved at one time.

The Supreme Court of Ohio in the case at bar has

failed to apply Jeffers, supra, in a case presenting essen-

tially the same factual situation. Again, it was the action

of the Defendant-Respondent in persuading the trial court

to accept his Guilty pleas over the State’s objections to the

lesser offenses which created the multiple punishment

problem. Surely the holding of Jeffers, supra, demands

that the decision of the Ohio Supreme Court be reversed

and the State of Ohio be allowed to continue its prosecution

of the Defendant-Respondent for the charges of Murder

and Aggravated Robbery.

14

III. Murder as defined in Ohio Revised Code Section

2903.02 and involuntary manslaughter as defined

in Ohio Revised Code Section 2903.04 are not the

same offenses for purposes of double jeopardy

protections where both statutes contain different

elements and conviction for either offense would

require proof of facts not necessary to sustain

conviction on the other.

As this Court has consistently ruled, where the same

act or transaction violates two distinct statutory provisions,

the test to be applied to determine whether there are two

offenses or only one, for double jeopardy purposes, is

whether each statute requires proof of an additional fact

which the other does not. Blockburger v. United States,

284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932). Under

Ohio statutes both Murder and Involuntary Manslaughter

share the common element of causing the death of another.

However, the Murder statute requires proof that the of-

fender acted with a purposeful intention to cause the death

of another. The Involuntary Manslaughter statute, under

the division with which the Defendant-Respondent was

charged requires proof that the death of another was caused

as a proximate result of the defendant’s commission of a

misdemeanor offense. Analysis of these separate and dis-

tinct offenses shows that each would require proof of facts

not necessary to prove the other offense. Obviously, evi-

dence presented to show that the death of a victim was

caused as the proximate result of the defendant’s commis-

mission of a misdemeanor would not be sufficient alone to

show that the defendant acted with a purposeful intention

to cause the death of that victim.

The reverse of that situation is also true. Proof that

the defendant purposely caused the death of another would

not in and of itself show that*the defendant had com-

15

mitted any misdemeanor, which may have caused the

victim’s deeth. To sustain a conviction for Involuntary

Manslaughter there is nc requirement that the State show

that the defendant had any intention whatsoever to cause

the death of the victim. This is not the case in order

for the State to sustain a conviction for Murder.

Since the elements of Murder require proof of facts

and an element different from the proof and elements

required to sustain a conviction for Involuntary Man-

slaughter the two offenses are not the same for purposes

of the Double Jeopardy Clause of the United States Con-

stitution as defined under the Blockburger, supra, decision.

CONCLUSION

In the case at bar the Defendant-Respondent has per-

suaded the Ohio Courts to apply the Double Jeopardy

Clause of the Fifth Amendment in a manner wholly in-

consistent with the holdings of this Court and the time-

honored policy factors behind the Double Jeopardy pro-

tections. This ruling also contravenes the rights of the

State of Ohio as a litigant in this matter. Surely the

people of Ohio have the right to have issues of criminal

culpability resolved in one proceeding and to extract full

punishment for criminal conduct. The State seeks nothing

more or less in this matter and has engaged in no mis-

conduct toward the Defendant-Respondent. The Double

Jeopardy protection is just that; a protection. It is not

an offensive weapon.

The ruling of the Ohio Supreme Court severely ham-

pers the function of Ohio Grand Juries. It has said that

you may not issue multiple count indictments containing

lesser and greater included offenses, even though you may

16

find the requisite probable cause for each, without running

the risk that those crimes may not be fully prosecuted and

punished. It has said further that Grand Juries must

now, though laymen, possess the legal acumen of skilled

attorneys when handing dc wn indictments where criminal

acts violate more than one statute, if crimes are to be fully

punished. This undue fettering of the Grand Jury process

is without justification in balancing the interests of the

people of Ohio and the rights of any particular defendant.

For the foregoing reasons, the decision of the Supreme

Court of Ohio must be reversed.

Respectfully submitted,

Joun E, SHoop, Prosecuting Attorney

of Lake County, Ohio

Counsel of Record

Rosert W. LAF orce

Jupson J. HAWKINS

Assistant Prosecuting Attorneys

47 North Park Place

P.O. Box 490

Painesville, Ohio 44077

(216) 357-2683

Attorneys for Petitioner

7

te! pel

Al

APPENDIX

OPINION OF THE SUPREME COURT OF OHIO

(Decided August 31, 1983)

No. 82-657

THE SUPREME COURT OF THE STATE OF OHIO

Tue Srate oF Onto, Crry or CoLuMBUS

STATE OF OHIO,

Appellant,

vs.

KENNETH M. JOHNSON,

Appellee.

6 Ohio St. 3d 420

Criminal Law: aggravated robbery and theft are allied

offenses of similar import; murder and involuntary

manslaughter distinguished, how; double jeopardy pro-

hibits conviction of both murder and involuntary

manslaughter, when.

1. Aggravated robbery, as defined by R. C. 2911.01, is

an “allied offense of similar import” to theft, as de-

fined 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 ele-

ment of causing the death of another and are dis-

A2

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 in-

cident 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.

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 con-

stitutional 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.

[481] J. P. Cutapnezzz, J. 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

A3

jeopardy of life or limb.” This prohibition has been

held to be applitable to the states by operation of the

Fourteenth Amendment. Benton v. Maryland (1969), 395

U. S. 784, 794. Moreover, the Ohio Constitution contains

a similar protection in Section 10, Article I which states,

“* * * [njo 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 « 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 of-

fense. North Carolina v. Pearce (1969), 395 U. S. 711, 717.

It is the state’s position that the second of those pro-

tections 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 ag-

gravated 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, 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 bifur-

cate 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 mul-

tiple 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.

A4

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 ob-

jections, 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.

436, and its progeny. Rather, this case concerns the third

double jeopardy protection prohibiting multiple punish-

ments for tiie 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 [422] the double jeopardy prohibi-

tion 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. 209, 304:

“e * * The applicable rule is that where the same

act or transaction constitutes a violation of two dis-

AS

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. 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.

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 [15 0.0. 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 committed separately or with

a separate animus as to each, the indictment or in-

formation may contain counts for all such offenses,

and the defendant may be convicted of all of them.”

As in Blockburger, this statute involves comparing the

elements of the various statutory offenses with which the

defendant is charged. Allied offenses of similar import are

those offenses which have elements corresponding to such

a degree that the commission of one offense will result in

the commission of the other. State v. Logan (1979), 60

Ohio St. 2d 126, 128 [14 0.0, 3d 373]. Where the offenses

are allied, the defendant may not ': convicted of them all

A6

unless they were committed separately or with a separate

animus as to each. R. C. 2941.25(B).

In this case, the appellee was charged with both ag-

gravated robbery and theft. “Aggravated robbery” was

defined in R. C. 2911.01 as follows:?

“(A) No person, in attempting or committing a

theft offense as defined in section 2913.01 of the Re-

vised Code, or in fleeing immediately after such at-

tempt or offense, shall do either of the following:

“(1) Have a deadly weapon or dangerous ord-

nance as defined in section 2923.11 of the Revised Code

on or about his person or under his control;

[423] ‘(2) Inflict, or attempt to inflict serious

physical harm on another.

“(B) Whoever violates this section is guilty of

aggravated robbery, a felony of the first degree.”

“Theft” was defined in R. C. 2913.02:

“(A) No person, with purpose to deprive the

owner of property or services, shall knowingly obtain

or exert control over either:

“(1) Without the consent of the owner or person

authorized to give consent;

“(2) Beyond the scope of the express or implied

consent of the owner or person authorized to give con-

sent;

“(3) By deception;

“(4) By threat.

1. RC. 2011.01, as well as R. C. 2911.02, fk ae and

2903.04, infra, were amended effective January 5, 1 983.

AT

“(B) Whoever violates this section is guilty of

theft.* °°”

This court has previously held that where theft does

not require the proof of any element not required to be

proved for the offense of robbery as defined in R. C.

2911.02,? they are the same offense for double jeopardy

purposes. State v. Harris (1979), 58 Ohio St. 2d 257 [12

0.0. 3d 265]. We believe that the same reasoning applies

in the case of theft and aggravated robbery.

The Committee Comment to R. C. 2911.01 indicates that

theft is the basic element of robbery with the principle

difference between the offenses being that robbery involves

an element of actual or threatened personal harm to the

victim. The seriousness of the robbery is determined by

the degree of actual or potential harm with aggravated

robbery involving the highest degree. The element of

potential harm to the victim is present in this case due

to the appellee’s use of a deadly weapon. Therefore, it is

apparent that in proving the offense of aggravated rob-

bery the underlying theft offense is also demonstrated.

Accordingly, the court below did not err in finding that

the prohibition against multiple punishments for the same

offense forbade appellee’s conviction for both offenses.

Appellee was also charged with both murder and

involuntary manslaughter. The former offense is defined

in R. C. 2903.02:

2. R. C. 2911.02 provided:

“(A) No person, in attempting or committing a theft offense,

as defined in section 2913.01 of the Revised Code, or in fleeing

immediately after such attempt or offense, shall use or threaten

the immediate use of force against another.

“(B) Whoever violates this section is guilty of robbery, a

felony of the second degree.”

A8

‘*(A) No person shall purposely cause the death

of another.

“(B) Whoever violates this section is guilty of

murder, and shall be punished as provided in section

2929.02 of the Revised Code.”

Involuntary manslaughter was defined in R. C.

2903.04:

“(A) No person shall cause the death of another

as a proximate result of the offender’s committing

or attempting to commit a felony.

“(B) No person shall cause the death of another

as a proximate result of the offender’s committing or

attempting to commit a misdemeanor.

“(C) Whoever violates this section is guilty of

involuntary man- [424] slaughter. Violation of divi-

sion (A) of this section is a felony of the first degree.

Violation of division (B) of this section is a felony

of the third degree.

Clearly, the common element shared by these two

offenses is the causing of the death of another with the

only distinguishing factor being the mental state involved

in that act. Murder is the more serious offense in that it

involves the purposeful killing of another. Involuntary

manslaughter involves a lesser mental state as it is a

killing which proximately results from the defendant’s

committing or attempting to commit another offense.’ It

is manifestly obvious that these two states are mutually

exclusive and that in any given killing the offender may

be possessed of only one. Under the Blockburger analysis,

3. Where an offender commits a purposeful murder while

committing or attempting to commit a felo he is properly

charged with aggravated murder under R. C. 3.01.

*»

Bo,

A9

the possibility of proving a fact for one offense which is

not required under the other is excluded. As such, in any

case where there~is but on victim, the accused may be

found guilty of either murder or involuntary manslaughter

but certainly not both.

In this case, appellee entered a plea of guilty to the

charge of involuntary manslaughter and not guilty to

murder. After briefly hearing the facts underlying the

charges, the trial court accepted this plea and thereafter

properly dismissed the murder charge on double jeopardy

principles. The state cannot now be heard to complain

about this result as it created the problem by charging

the accused with double offenses where only one convic-

tion was possible.

Based upon the foregoing analysis, the judgment of

the court of appeals is affirmed.

Judgment affirmed.

CELEBREZZE, C.J., KEEFE, SWEENEY, Houtmes and C.

Brown, JJ., concur.

Locuer, J., dissents.

Keer, J., of the First Appellate District, sitting for W.

Brown, J.

Locuer, J., dissenting. As I am convinced that the

majority has misapplied the Double Jeopardy Clause in the

present action, I must respectfully dissent.

It is beyond dispute that a defendant found guilty of a

lesser included offense but acquitted on the greater charge

may not, consonant with the mandates of the double jeop-

ardy prohibition, be retried on the latter. The same result

does not follow, however, where, as in the case at bar, de-

Al0

fendant pleaded to the lesser offense and the greater was

consequently dismissed [425] without trial. To date, all

federal circuit courts of appeals that have addressed the

legal issue present in such a scenario have held that a party

may be retried as to the greater offense when the original

judgment has been set aside. Hawk v. Berkemer (C.A. 6,

1979), 610 F.2d 445; Lowery v. Estelle (C.A. 5, 1983), 696

F. 2d 333; United States v. Barker, (C.A. 9, 1982), 681

F. 2d 589; Klobuchir v. Commonwealth of Pennsylvania

(C.A. 3, 1981), 639 F. 2d 966; United States v. Myles (D.D.C.

1977), 430 F.Supp. 98, affirmed without opinion (C.A.D.C.

1978), 569 F. 2d 161; United States v. Williams (C.A. 8,

1976), 534 F. 2d 119; United States v. Johnson (C.A. 4,

1976), 537 F. 2d 1170; United States v. Anderson (C.A. 7,

1975), 514 F. 2d 583; United States, ex rel. Williams, v. Mc-

Mann (C.A. 2, 1970), 436 F. 2d 103; Ward v. Page (C.A. 10,

1970), 424 F. 2d 491.

In reaching their decisions, these federal appellate

courts have essentially followed a two-step process of anal-

ysis. First, they have held that in the context of multiple

trials for the same offense, the principle of double jeop-

ardy is not implicated unless an attempt has been made to

retry a party on a charge for which he has already been

acquitted. Lowery v. Estelle, supra, at 340; Hawk v. Berk-

emer, supra, at 447; Ward v. Page, supra, at 493. Secondly,

relying upon the United States Supreme Court’s decision

in United States v. Scott (1978), 437 U. S. 82, the courts

have ruled that where a charge on an offense has been

dismissed as a result of a plea to a lesser included offense,

defendant has not been acquitted of the greater. Klobuchir

v. Commonwealth of Pennsylvania, supra, at 969; United

States v. Barker, supra, at 591. As the court stated in

Scott, supra at 97, quoting United States v. Martin Linen

(1977), 430 U. S. 564, 571:

oy 3!

All

.“* * * [A] defendant is acquitted only when ‘the

ruling of a judge, whatever its label, actually represents

a resolution [in the defendant’s favor], correct or not,

of some or all of the factual elements of the offense

charged.’”

The province of the jurisprudential philosophy ex-

pressed in the aforementioned decisions is manifest, given

the underlying policy of the double jeopardy guarantee.

Clearly, the primary objective of this constitutional right is

to proscribe the physical, emotional and financial “harass-

ment” of parties through repeated prosecutions for the

same criminal offense. Green v. United States (1957), 355

U. S. 184; State v. Thomas (1980), 61 Ohio St. 2d 254. The

policy is not violated where the defendant has not truly

“run the judicial gauntlet” and, indeed, has voluntarily

chosen, by pleading gulity, to end all inquiry into his guilt

and where no prosecutorial misconduct, necessitating the

retrial, is either present or alleged.

By improperly accepting, over the prosecution’s ob-

jections, appellee’s guilty plea to lesser charges, based on

its own misunderstanding of the effect such pleas would

have on subsequent jury instructions,‘ the trial court clearly

[426] abused the discretion granted it under Crim. R.

11(C) (2). Therefore, appellant is entitled to vacation of

4. The trial court wrongly concluded that pe og guilty

plea to the lesser offense operated to activate his double jeopardy

protections and would have precluded the rendition of jury in-

structions on such offenses were the case to have proceeded to

trial. By pleading we! to the offenses, however, appellee ef-

t to a charge on such offenses as his

plea represented an admission of bility. See Forthoffer v.

Swope (C.A. 9, 1939), 103 F. 2d 707. Thus, this court’s hciding

in State v. Loudermill (1965), 2 Ohio St. 2d 79 [31 0.0. 2d 60],

was inapposite to the trial court’s decision herein.

5. Crim R. 11(C)(2) provides, in pertinent part: “In felony

cases the court may refuse to accept a plea of guilty * * *.”

/}

Al2

the earlier judgment and trial of appellee on the murder

charge. Such a result would be consistent with current

constitutional standards and would in no way contravene

the policy underlying the Double Jeopardy Clause. The

prosecution acted in good faith by bringing all possible

charges against appellee in a single proceeding and, but for

the court’s error, all relevant issues of criminal culpability

would have been resolved therein.

The majority also errs in the case at bar when it writes

that the United States Supreme Court’s pronouncement in

Blockburger v. United States (1932), 284 U. S. 299, estab-

lishes the standard for determining whether offenses are

“sufficiently distinguishable” to avoid the double jeopardy

prohibition against multiple punishments for the same of-

fense. This court explicitly repudiated such an argument

in State v. Moss (1982), 69 Ohio St. 2d 515 [23 0.0. 3d

447], where we held that the Blockburger test is merely a

rule of statutory construction and is not to be used alone

to divine legislative intent where other tests may be utilized .

to discern such intent. The majority simply ignores re-

strictions so recently placed on the applicability of Block-

burger to double jeopardy questions involving alleged mul-

tiple punishments.

Thus, on the basis of the aforementioned reasons, I dis-

sent from today’s opinion which affirms the erroneous rul-

ing of the court of appeals.

Al3

ORDER OF THE SUPREME COURT OF OHIO

(Dated August 31, 1983)

No. 82-657

THE SUPREME COURT OF THE STATE OF OHIO

THe State oF Onto, City or CoLuMsBus

STATE OF OHIO,

Appellant,

vs.

KENNETH M. JOHNSON,

Appellee.

MANDATE

To the Honorable Common Pleas Court Within and for

the County of Lake, Ohio, Greeting:

The Supreme Court of Ohio commands you to proceed

without delay to carry the following judgment in this

cause into execution:

Judgment of the Court of Appeals affirmed for the

reasons set forth in the opinion rendered herein.

*

Al4

OPINION OF THE COURT OF APPEALS

OF LAKE COUNTY, OHIO

(Filed April 1, 1982)

Case No. 8-221

COURT OF APPEALS OF OHIO

ELEVENTH DISTRICT

County or LAKE

STATE OF OHIO,

Plaintiff-Appellant,

Vs.

KENNETH M. JOHNSON,

Defendant-Appellee.

OPINION

DAHLING, J,

This is an appeal from a judgment of the Court of

Common Pleas, Lake County, wherein the court dis-

missed Counts of Murder and Aggravated Robbery. The

State of Ohio has appealed.

The reasoning of Judge Jackson in his opinion and

judgment concisely states the proposition of law at issue.

Judge Jackson stated:

“Defendant was initially charged in a four count

indictment for the offenses of murder, involuntary

manslaughter, aggravated robbery and grand theft.

Cn December 10, 1981, the defendant entered pleas

of guilty to the lesser offenses of involuntary man-

slaughter and grand theft.

Al5

“The issues presented are twofold. First, whether

involuntary manslaughter, in the case at bar, is a lesser

included offense of murder. Second, whether grand

theft, given the facts at hand, is a lesser included

oifense of aggravated robbery.

If the answer to either of these questions is yes,

then the attachment of jeopardy, by this Court’s ac-

ceptance of the aforementioned guilty pleas to the

lesser offense, would prevent further prosecution

and/or conviction on the remaining greater offense.

Ohio Revised Code Ann. Sec. 2943.09 (Page 1975).

An offense constitutes a lesser included offense

when the elements necessary to prove the lesser of-

fense are contained in the proof of the greater offense.

As the United States Supreme Court in Blockburger

v. United States, 284 U.S. 299, 304 (1931), stated,

[t]he applicable rule is that where the same act

. . constitutes a violation of two distinct statu-

tory provisions, the test to be applied to determine

whether there are two offenses or only one is

whether, each provision requires proof of an

additional fact that the other does not.

See also State v. Harris, 58 Ohio St. 2d 257, 389 N.E.

2d 1121 (1979).

An analysis of the various elements of murder

and involuntary manslaughter establishes, under the

particular facts of this case, that involuntary man-

slaughter involves the proof of no fact not required

to substantiate the crime of murder.

Therefore, the Court finds on the facts of this

case that the State, in substantiating the events that

culminated in the death of the instant victim,. will

Al6

invariably encompass the element of proximate cause

while attempting or actually committing a misde-

.meanor. Hence, as applied, involuntary manslaughter

would prevail as a lesser included offense of murder.

In addition, the Court is totally cognizant of the

fact that should this case proceed to trial on the re-

maining charges and the factual evidence presented

is such that this Court would be compelled to charge

the jury on the lesser offenses of involuntary man-

slaughter and grand theft, at that point the defendant’s

constitutional rights would have been surely violated.

See State v. Loudermill, 2 Ohio St. 2d 79, 206 N.E.

2d 198 (1965).

For at that juncture of the proceedings, defendant

would have been placed in jeopardy for the second

time for the exact same offense, rendering totally

meaningless the Double Jeopardy Clause embodied

in the Fifth Amendment of the United States Con-

stitution.

Addressing the issue of grand theft being a lesser

included offense of aggravated robbery, the Court

again finds that the charge of grand theft requires

proof of no fact not required as an element of aggra-

vated robbery in this case.

By statute, aggravated robbery is defined as a

theft, either attempted or actual, committed while pos-

sessing a deadly or dangerous weapon. Ohio Revised

Code Ann. Sec. 2911.01 (Page 1975). The foun-

dation of this offense is a theft. Consequently, it is

essential to the proof of aggravated robbery that the

underlying theft be established.

The State argues that since the crime of grand

theft requires proof of value in excess of $150, which

Al7

is not required to prove aggravated robbery, that

the test of a lesser included offense has not been

satisfied. This Court does not agree.

The factors differentiating grand theft from petty

theft pertain to the degree of punishment and not to

the establishment of the crime itself. Second, the

rationale applied by the Ohio Supreme Court in State

v. Harris, supra, butresses this position. In Harris,

supra, grand theft was held to be a lesser included

offense of robbery, even though proof of defendant’s

prior conviction for armed robbery, the factor which

elevated the theft to grand theft, is not an element

of the crime of robbery. Similarly, in the case at

bar, the proof of value does not ipso facto place these

two crimes outside the scope of the Blockburger rule.

Since involuntary manslaughter as it pertains to

murder and grand theft as it pertains to aggravated

robbery do not require proof of any element not re-

quired to be proven in the greater offense, this Court

finds that both are the same offense for double jeop-

ardy purposes. In so concluding, the double jeopardy

doctrine would prohibit multiple punishments for a

singular offense. North Carolina v. Pearce, 395 U:S.

711, 717 (1969).”

The State has presented the following Assignments

of Error for review:

I. THE LOWER COURT ERRED IN DISMISS-

ING THE COUNTS OF THE INDICTMENT CHARG-

ING MURDER AND AGGRAVATED ROBBERY

’ FOLLOWING APPELLEE’S GUILTY PLEA TO THE

OFFENSES OF INVOLUNTARY MANSLAUGHTER

AND GRAND THEFT BECAUSE THE OFFENSES

OF INVOLUNTARY MANSLAUGHTER AND

=

Als

GRAND THEFT ARE NOT THE SAME OFFENSES

AS MURDER AND AGGRAVATED ROBBERY

FOR PURPOSES OF THE DOUBLE JEOPARDY

CLAUSE.

II. WHERE, IN ONE PROCEEDING, AN IN-

DICTMENT CHARGES MURDER, INVOLUNTARY

MANSLAUGHTER, AGGRAVATED ROBBERY AND

GRAND THEFT, AND A DEFENDANT PLEADS

GUILTY TO INVOLUNTARY MANSLAUGHTER

AND GRAND THEFT, HE IS NOT SUBJECTED TO

MULTIPLE PROSECUTIONS AS PROHIBITED BY

THE DOUBLE JEOPARDY CLAUSE, WHERE THE

PROCEEDING CONTINUES THROUGH TRIAL ON

THE REMAINING COUNTS.

These Assignments of Error are without merit.

Not to be unnecessarily repetitious, but the well

reasoned opinion of Judge Jackson adequately covers the

issues raised by appellant. We agree that involuntary

manslaughter is a lesser included offense of murder and

grand theft is a lesser included offense of robbery. The

judgment is accordingly affirmed.

Judgment affirmed.

/s/ Aurrep E. DaHLING

Judge

Horstetter, P.J.,

Cook, J., Concur

Alg

JUDGMENT ENTRY OF THE COURT OF APPEALS

OF LAKE COUNTY, OHIO

(Filed April 1, 1982)

Case No. 8-221

IN THE COURT OF APPEALS

ELEVENTH DISTRICT

County or LAKE

STATE OF OHIO,

Appellant,

vs

KENNETH M. JOHNSON,

Appellee.

JUDGMENT ENTRY

This cause came on to be heard upon the Record in the

Trial Court, and was briefed and argued by counsel for the

parties.

Upon consideration whereof, this Court finds no error

prejudicial to the appellant and, therefore, the judgment

of the Trial Court is affirmed. Each Assignment of Error

was reviewed by the Court and disposed of as set forth in

this Court’s Opinion, which is incorporated herein by

reference.

It is ordered that the costs shall be taxed against

the appellant.

This Court finds there were reasonable grounds for

this appeal.

A20

It is ordered that a special mandate issue out of this

Court directing the Trial Court to carry this judgment into

execution. A certified copy of this entry shall constitute

the mandate pursuant to Rule 27 of the Rules of Appellate

Procedure. Exceptions.

/s/ ALFRED E. DAHLING

Judge for the Court

A21

JUDGMENT ENTRY AND OPINION OF THE

COURT OF COMMON PLEAS

(Filed March 31, 1981)

Case No. 79 CR 048

IN THE COURT OF COMMON PLEAS

LAKE County, OHIO

STATE OF OHIO,

Plaintiff,

vs.

KENNETH M. JOHNSON,

Defendant.

JUDGMENT ENTRY AND OPINION

This cause is before the Court on defendant’s Motion

to Dismiss, as supported by his Memorandum in Support

of the motion and Reply Memorandum. The State of Ohio

has responded with a Brief in Opposition to the Motion to

Dismiss and a Reply Memorandum. The Court, upon care-

ful consideration, finds defendant’s position with regard

to the plea of double jeopardy well taken.

Defendant was initially charged in a four count in-

dictment for the offenses of murder, involuntary man-

slaughter, aggravated robbery and grand theft. On De-

cember 10, 1981, the defendant entered pleas of guilty to

the lesser offenses of involuntary manslaughter and grand

theft.

The issues presented are twofold. First, whether in-

voluntary manslaughter, in the case at bar, is a lesser in-

A22

cluded offense of murder. Second, whether grand theft,

given the facts at hand, is a lesser included offense of ag-

gravated robbery.

If the answer to either of these questions is yes, then

the attachment of jeopardy, by this Court’s acceptance of

the aforementioned guilty pleas to the lesser offense, would

prevent further prosecution and/or conviction on the re-

maining greater offense. Ohio Revised Code Ann. §2943.09

(Page 1975).

An offense constitutes a lesser included offense when

the elements necessary to prove the lesser offense are

contained in the proof of the greater offense. As the

United States Supreme Court in Blockburger v. United

States, 284 U.S. 299, 304 (1931), stated,

[t]he applicable rule is that where the same act...

constitutes a violation of two distinct statutory pro-

visions, the test to be applied to determine whether

there are two offenses or only one is whether, each

provision requires proof of an additional fact that the

other does not.

See also State v. Harris, 58 Ohio St. 2d 257, 389 N.E. 2d

1121 (1979).

An analysis of the various elements of murder and in-

voluntary manslaughter establishes, under the particular

facts of this case, that involuntary manslaughter involves

the proof of no fact not required to substantiate the crime

of murder. :.

Therefore, the Court finds on the facts of this case

that the State, in substantiating the events that culminated

in the death of the instant victim, will invariably encom-

pass the element of proximate cause while attempting or

actually committing a misdemeanor. Hence, as applied,

A23

involuntary manslaughter would prevail as a lesser in-

cluded offense of murder.

In addition, the Court is totally cognizant of the fact

that should this case proceed to trial on the remaining

charges and the factual evidence presented is such that

this Court would be compelled to charge the jury on the

lesser offenses of involuntary manslaughter and grand

theft, at that point the defendant’s constitutional rights

would have been surely violated. See State v. Loudermill,

2 Ohio St. 2d 79, 206 N.E. 2d 198 (1965).

For at that juncture of the proceedings, defendant

would have been placed in jeopardy for the second time

for the exact same offense, rendering totally meaningless

the Double Jeopardy Clause embodied in the Fifth Amend-

ment of the United States Constitution.

Addressing the issue of grand theft being a lesser

included offense of aggravated robbery, the Court again

finds that the charge of grand theft requires proof of no

fact not required as an element of aggravated robbery in

this case.

By statute, aggravated robbery is defined as a theft,

either attempted or actual, committed while possessing a

deadly or dangerous weapon. Ohio Revised Code Ann.

$2911.01 (Page 1975). The foundation of this offense is

a theft. Consequently, it is essential to the proof of

aggravated robbery that the underlying theft be estab-

lished.

The State argues that since the crime of grand theft

requires proof of value in excess of $150, which is not

required to prove aggravated robbery, that the test of

a lesser included offense has not been satisfied. This Court

does not agree.

A24

The factors differentiating grand theft from petty

theft pertain to the degree of punishment and not to the

establishment of the crime itself. Second, the rationale ap-

plied by the Ohio Supreme Court in State v. Harris, supra,

buttresses this position. In Harris, supra, grand theft was

held to be a lesser included offense of robbery, even though

proof of defendant’s prior conviction for armed robbery,

the factor which elevated the theft to grand theft, is not

an element of the crime of robbery. Similarly, in the case

at bar, the proof of value does not ipso facto place these

two crimes outside the scope of the Blockburger rule.

Since involuntary manslaughter as it pertains to mur-

der and grand theft as it pertains to aggravated robbery do

not require proof of any element not required to be proven

in the greater offense, this Court finds that both are the

same offense for double jeopardy purposes. In so conclud-

ing, the double jeopardy doctrine would prohibit multiple

punishments for a singular offense. North Carolina v.

Pearce, 395 U.S. 711, 717 (1969).

Therefore, defendant’s Motion to Dismiss Count One

and Count Three of the indictment is forthwith granted.

Exceptions are noted for the State of Ohio.

IT IS SO ORDERED.

/s/ James W. JACKSON

Judge of the Court of Com-

mon Pleas

A25

JUDGMENT ENTRY OF THE SUPREME COURT

OF OHIO

(Dated August 31, 1983)

No. 82-657

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, Crry or COLUMBUS

STATE OF OHIO,

Appellant,

vs.

KENNETH M. JOHNSON,

Appellee.

APPEAL FROM THE CourRT oF APPEALS

For Lake County

This cause, here on appeal from the Court of Appeals

for Lake County, was heard in the manner prescribed by

law. On consideration thereof, the judgment of the Court

of Appeals is affirmed for the reasons set forth in the opin-

ion rendered herein, and it appearing that there were rea-

sonable grounds for this appeal, it is ordered that no pen-

alty be assessed herein.

It is further ordered that the appellee recover from the

appellant its costs herein expended; and that a mandate

be sent to the Common Pleas Court to carry this judgment

into execution; and that a copy of this entry be certified

to the Clerk of the Court of Appeals for Lake County

for entry.

A26

OHIO REVISED CODE

§2903.02 Murder

(A) No person shall purposely cause the death of

another.

(B) Whoever violates this section is guilty of mur-

der, and shall be punished as provided in section 2929.02

of the Revised Code.

$2903.04 Involuntary manslaughter.

(B) No person shall cause the death of another as

a proximate result of the offender’s committing or at-

tempting to commit a misdemeanor.

(C) Whoever violates this section is guilty of in-

voluntary manslaughter. Violation of division (A) of this

section is a felony of the first degree. Violation of di-

vision (B) of this section is a felony of the third degree.

§2911.01 Aggravated robbery.

(A) No person, in attempting or committing a theft

offense as defined in section 2913.01 of the Revised Code,

‘or in fleeing immediately after such attempt or offense,

shall do either of the following:

(1) Have a deadly weapon or dangerous ordnance

as defined in section 2923.11 of the Revised Code on or

about his person or under his control;

(B) Whoever violates this section is guilty of ag-

gravated robbery, a felony of the first degree.

§2913.02 Theft.

(A) No person, with purpose to deprive the owner

of property or services, shall knowingly obtain or exert

control over either:

(1) Without the consent of the owner or person au-

thorized to give consent;

(2) Beyond the scope of the express or implied

consent of the owner or person authorized to give consent;

(3) By deception;

(4) By threat.

(B) Whoever violates this section is guilty of theft.

If the value of the property or services stolen is less than

one hundred fifty dollars, a violation of this section is

petty theft, a misdemeanor of the first degree. If the

value of the property or services stolen is one hundred

fifty dollars or more, or if the property stolen is any

of the property listed in section 2913.71 of the Revised

Code, or if the offender has previously been convicted

of a theft offense, a violation of this section is grand theft,

a felony of the fourth degree. If the property stolen

is a motor vehicle, as defined in section 4501.01 of the

Revised Code, a violation of this section is grand theft

of a motor vehicle, a felony of the third degree.

$2941.25 Multiple counts.

(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.

A28

§2929.41 Multiple sentences.

(A) Except as provided in division (B) of this sec-

tion, a sentence of imprisonment shall be served con-

currently with any other sentence of imprisonment im-

posed by a court of this state, another state, or of the

United States. In any case, a sentence of imprisonment

for misdemeanor shall be served concurrently with a

sentence of imprisonment for felony served in a state

or federal penal or reformatory institution.

(B) A sentence of imprisonment shall be served

consecutively to any other sentence of imprisonment, in

the following cases:

(1) When the trial court specifies that it is to be

served consecutively;

§2953.21 Petition to vacate or set aside sentence.

(A) Any person convicted of a criminal offense or

adjudged delinquent claiming that there was such a denial

or infringement of his rights as to render the judgment

void or voidable under the Ohio Constitution or the Con-

stitution of the United States, may file a verified petition

at any time in the court which imposed sentence, stating

the grounds for relief relied upon, and asking the court

to vacate or set aside the judgment or sentence or to

grant other appropriate relief. The petitioner may file

such supporting affidavit and other documentary evi-

dence as will support his claim for relief.

(G) If the court finds grounds for granting relief,

it shall, by its judgment, vacate and set aside the judgment,

and shall, in the case of a prisoner in custody, ‘discharge

A29

or resentence him or grant a new trial as may appear ap-

propriate. The court may also make supplementary or-

ders to the relief granted, concerning such matters as

rearraignment, retrial, custody, and bail.

[§2967.19.1] §2967.191 Reduction of minimum and

maximum sentence.

The adult parole authority shall reduce the minimum

and maximum sentence of a prisoner by the total number

of days that the prisoner was confined for any reason

arising out of the offense for which he was convicted and

sentenced, ...

THE CONSTITUTION OF THE UNITED STATES

Amendment 5

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

Amendment 14; Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

A30

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of

the laws.