# Petition — Ohio v. Johnson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 493

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0693%3A01. Public record. Not legal advice.