Amicus Brief for the United States — Ohio v. Johnson

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No. 83-904

Office - Supreme Court, U.S.

FILED

MAR @ 1004

ERG LIE

OCTOBER TERM, 1983

STATE OF OHIO, PETITIONER

KENNETH M. JOHNSON

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

REX E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

CARTER G. PHILLIPS

Assistant to the Solicitor General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20580

(202) 633-2217

Ly sips

PN eee -

QUESTION PRESENTED

The United States will discuss the following issue:

Whether the Double Jeopardy Ciause prohibits a

defendant from being tried on charges of murder and

aggravated robbery after his guilty plea is accepted

by the trial court, over the State’s objection, to lesser

included charges contained in the same indictment.

(1)

TABLE OF CONTENTS

Page

Interest of the United States 2.0.0.2... ccccccccccceeeeeeee 1

SEE ERS SEE es OIA ote BE MN 1

Summary of argument............ 4

pO cl BL ae as OOF Sn 8

A. The double jeopardy prohibition against suc-

cessive prosecutions would not be violated in

this case, because trial on the remaining charges

will complete a single, continuing prosecution ....

B. Respondent’s double jeopardy right to have

greater and lesser included offenses resolved in

one proceeding has not been violated, because

he elected by his guilty pleas to have the charges

SUOEV OTL Ti CUO WRRIIIN onan news tetccsccscovccesese 23

NIU scihiiscttiecenrnntsonsardiniatiemheis 28

TABLE OF AUTHORITIES

Cases:

Arizona V. Washington, 484 U.S. 497 ies ‘ 19

Ashe Vv. Swenson, 897 U.S. 486 ” 5, 12, 28

Beck v. Alabama, 447 U.S. 625 i 21, 22

Benton V. Maryland, 895 U.S. 784 ................c000000-- 2

Blackledge Vv. Perry, 417 U.S. 21 23

Blockburger Vv. United States, 284 U.S. 299........... 8, 10, 11

Bordenkircher v. Hayes, 484 U.S. 857 -........0....... 20

Brown V. Ohio, 482 U.S. 161 ....8, 5, 8, 10, 11, 12, 18, 14,

Burks v. United States, 487 U.S. 1 “17

Crist v. Bretz, 487 U.S. 28 15,18 —

Diaz Vv. United States, 228 U.S. 442 2000.00 23

G.&C. Merriam Co. v. Saalfield, 241 U.S. 22 .......... 14

Gore Vv. United States, 8357 U.S. 386 11

Green V. United States, 8355 U.S. 184 ............ 6, 8, 17, 18, 22

Green V. United States, 365 U.S. 301 4,10

Hawk v. Berkemer, 610 F.2d 445 9

IUinois v. Somerville, 410 U.S. 458 15, 22

Illinois v. Vitale, 447 U.S. 410 aod 8,10

(mI)

Cases—Continued : Page

Jeffers Vv. United States, 482 U.S. 187 ~........... 7, 19, 21, 28,

24, 25, 26

Keeble v. United States, 412 U.S. 206 ...................... 21, 22

Klobuchir v. Pennsylvania, 689 F.2d 966, cert. de-

SE Rr Se eS ee 9

Missouri Vv. Hunter, No. 81-1214 (Jan. 19, 1983)... 11

Newman V. United States, 882 F.2d 479 ................ 20

Pe Bk ene il

North Carolina v. Pearce, 395 U.S. 711 .................. 4, 8,9

Oregon V. Kennedy, 456 U.S. 667 ............................ 27

People v. Tideman, 57 Cal. 2d 574, 370 P.2d 1007,

Ae EERE AR Cc 22

Price Vv. Georgia, 898 U.S. 828 ....................cccceeccceeees R

Serfass Vv. United States, 420 U.S. 877 ............. 6, 7, 15, 18,

19, 21, 22

Swisher v. Brady, 488 U.S. 204 ..._.................. 6, 16, 17, 18

United States v. Barker, 681 F.2d 589 .................... 9

United States v. Batchelder, 442 U.S. 114 .............. 20

United States v. Cambindo Valencia, 609 F.2d 608,

cert. denied, 446 U.S. 940 ..2..................ccccceesecseees 18

~ United States v. Combs, 684 F.2d 1295, cert. de-

NE Ia ris, I ili erties iatinstnined bcieaiinenie 22, 26

United States v. Cruz, 709 F.2d 1111 ...................... 8, 18, 18

United States v. DiF rancesco, 449 U.S. 117 ............ 18°

United States v. Dinitz, 424 U.S. 600 ...................... 27

United States v. Goldman, 852 F.2d 268 ................ 18

United States v. Gray, 448 F.2d 164, cert. denied,

0 GEA ol aie SEE AEA CRED Sota gee 20

United States v. Hendriz, 542 F.2d 879, cert. de-

Ss Gee Ns IE catnicbencnieninScbinicntsitncetaittintnndilibctctspicenidien 10

United States v. Johnson, 687 F.2d 1170 ................ 9

United States v. Jorn, 400 U.S. 470 -.2...-.0000000000..... 21

United States v. Lincoln, 680 F.2d 1818 ................ 10

United States v. Martin Linen Supply Co., 480 U.S.

564 .... ; fits. oc,

United States v. Olson, 604 F.2d 1222 0000... 20

United States v. Rocco, 397 F. Supp. 656 ................ 18, 26

United States v. Scott, 487 U.S. 82 ........ 4, 7, 9, 18, 19, 26

United States v. Tateo, 877 U.S. 468 27

United States v. Vaughan, 715 F.2d 1878 ........... iy 9

Cases—Continued : Page

United States v. Williams, 584 F.2d 119, cert. de-

fe en 9,18

United States v. Wilson, 420 U.S. $82 ..................... s

Wade v. Hunter, 336 U.S. 684 é 15

Constitution, statutes and rule:

U.S. Const. :

a aad 22

Double Jeopardy Clause .........................-.. passim

Amend. XIV (Due Process Clause) ................ 2

pe 8, ) PP ATS PE GONE A tee OO 10

I a seine 10

SE Se SES a al 2 es Se 24

SERRE SERRE RARER => ROE NEA 24

Ohio Rev. Code Ann. (Page 1982 & Supp. 1983) :

RAEN TSE IA, SA ERC en 2

§ 2908.04(B) (Supp. 1988) ..................0......-2.. 2

§ 2911.01(A) (1) (Supp. 1988) -.....2...0000000.... 2

§ 2918.02(A) (1) (Supp. ee ae ilies satabakatai 2

I a cssccntbaniin 10, 26

I cs csuaplipeienidons 8

. 2 Be ee |S | Se eeeneren eee 26

Miscellaneous :

Comment, Twice in Jeopardy, 75 Yale L.1. 262

| on PO END Set MAP LSE ae oe OR 12

Iu the Supreme Court of the United States

OCTOBER T ERM, 1983

No. 83-904

STATE OF OHIO, PETITIONER

KENNETH M. JOHNSON

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents an important issue regarding

the double jeopardy consequences of a defendant’s

guilty plea to fewer than all counts of an indictment.

Guilty pleas play a prominent role in the federal

criminal justice system, and although this is a state

case, the Court’s decision will govern federal criminal

cases as well. The United States therefore has a

substantial interest in the outcome of the case.

STATEMENT

On February 13, 1979, a grand jury in Lake

County, Ohio charged respondent, Kenneth M.

Johnson, in a four-count indictment with murder,

involuntary manslaughter, aggravated robbery, and

grand theft in violation of Ohio Rev. Code Ann.

(1)

§§ 2903.02(A), 2908.04(B), 2911.01(A)(1) and

2918.02(A)(1) (Page 1982 & Supp. 1983). All four

charges stemmed from the fatal shooting and rob-

bery of Thomas Hill in Mentor, Ohio on January 25,

1979 (Pet. App. A2).

Following his apprehension in Tennessee and his

return to Ohio, respondent was arraigned before the

Court of Common Pleas of Lake County, Ohio, on

October 9, 1980. At his arraignment, respondent

offered to plead guilty to the charges of involuntary

manslaughter and theft and to plead not guilty to the

two more serious charges, Pet. App. A2. The State

objected to the proffered guilty pleas, arguing that it

had a right to have a trial on all of the charges in

the indictment (Pet. 3-4).

The trial court held a hearing on November 26,

1980, at which, over the renewed objections of the

State, it accepted respondent’s guilty pleas. The court

thereafter sentenced respondent to consecutive terms

of three to ten years’ imprisonment on the involun-

tary manslaughter charge and two to five years’

imprisonment on the theft charge. Pet. App. A2.

Subsequently, respondent filed a motion to dismiss the

remaining charges against him on the ground that

his right not to be placed twice in jeopardy for the

same offense, as applied to the states through the Due

Process Clause of the Fourteenth Amendment, Benton

v. Maryland, 395 U.S. 784 (1969), would be violated

if he were tried on those counts.

On March 31, 1981, the trial court granted re-

spondent’s motion (Pet. App. A21-A24). The court

found that involuntary manslaughter was a lesser in-

cluded offense of murder and that grand theft was a

lesser included offense of aggravated robbery. It then

reasoned that should the 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 man-

slaughter and grand theft, at that point the defend-

ant’s constitutional rights would have been surely

violated” (Pet. App. A238).

The State appealed, and the Court of Appeals of

Lake County, Ohio, affirmed (Pet. App. Al4-A18).

Relying largely upon the opinion of the lower court,

the court of appeals held that involuntary man-

slaughter and grand theft are lesser included offenses

of murder and aggravated robbery, respectively, and

therefore that trial on the greater offenses was barred

by the pleas (id. at A18).

The Supreme Court of Ohio, with one judge dis-

senting, affirmed (Pet. App. Al-Al2). The court

agreed with the State that the case did not involve

“successive prosecutions such as to warrant the ap-

plication of the collateral estoppel principles set forth

in Ashe v. Swenson (1970), 397 U.S. 436, and its

progeny” (Pet. App. A4). The court found, however,

that the double jeopardy principle prohibiting multi-

ple punishments for the same offense supported the

dismissal of the indictment.

The court reasoned that if respondent could not be

punished separately for the various statutory offenses,

then he could not be convicted on all of the charges

“regardless of the timing of the trial court’s accept-

ance of his pleas” (Pet. App. A4). Relying upon

Blockburger v. United States, 284 U.S, 299 (1982) ;

Brown y. Ohio, 482 U.S. 161 (1977), and Ohio’s

multiple count statute,’ the court concluded that for

‘That statute (Ohio Rev. Code Ann. § 2941.25(A) (Page

1982) ) provides in pertinent part:

Where the same conduct by defendant can be construed

to constitute two or more allied offenses of similar import,

double jeopardy purposes the lesser offenses to which

respondent had pleaded guilty were identical to the

remaining charges. Since he had already been con-

victed of involuntary manslaughter and grand theft

on his pleas, the court held that dismissal of the re-

maining counts was required by the Double Jeopardy

Clause.

SUMMARY OF ARGUMENT

The Double Jeopardy Clause affords a criminal de-

fendant three principal protections: it bars a second

prosecution after an acquittal; it bars a second prose-

cution after a conviction; and it bars multiple punish-

ments for the same offense. See North Carolina v.

Pearce, 395 U.S. 711, 717 (1969). On their face,

none of these protections appears to apply to respond-

ent’s situation. Certainly, he has not been acquitted

of anything. The acceptance of his guilty plea to the

lesser offenses can in no way be regarded as a

determination of his innocence of the greater offenses

charged. United States v. Scott, 487 U.o. 82, 97

(1978) ; United States v. Martin Linen Supply Co.,

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

Contrary to the reasoning of the court below, the

presence of greater and lesser included offenses cre-

ates no inexorable multiple punishment problem. If

respondent is convicted after trial on the greater

charges, then under the Supreme Court of Ohio’s view

of the offenses, the punishments should be merged.

That is no reason to forbid a trial on the remaining

charges. See Green v. United States, 865 U.S. 301

(1961). Although it is true that double jeopardy

bars prosecution for a greater offense following trial

the indictment or information may contain counts for all

such offenses, but the defendant may be convicted of only

one.

and conviction for a lesser included offense, Brown v.

Ohio, 482 U.S, 161, 166 (1977), that rule has no

application here unless it can be said that what the

State proposes by trying respondent on the greater

charges is successive prosecutions. But that merely

poses the question whether a trial on the greater

offenses after a guilty plea to the lesser ones, as part

of the resolution of charges contained in a single

indictment, infringes a defendant’s right not to be

prosecuted after a conviction; it does not answer it.

1. The protection against double jeopardy derives

from the common law pleas of autrefois acquit and

autrefois convict and principally serves the same

function in criminal law as res judicata and collateral

estoppel do in civil law—protecting the defendant’s

right and society’s interest in finality once judgment

has been reached in a dispute. Ashe v. Swenson, 397

U.S. 486 (1970). Here, if the State had indicted

respondent on charges of involuntary manslaughter

and grand theft and he had pleaded guilty and been

sentenced on those charges, the matter would be prop-

erly regarded as closed, so that a subsequent attempt

by the State to prosecute on the greater charges

would be barred under Brown v. Ohio, supra.

What is missing in this case is the final resolution

of the entire dispute between the parties. Res ju-

dicata and collateral estoppel bar relitigation only

when the first litigation has been completed. Since

this case is still at the pretrial stage, double jeop-

ardy’s protection of the criminal defendant should be

no greater than res judicata’s protection of a civil

defendant. If this were a civil suit, respondent’s

proposal to settle half of the case clearly would not

end the litigation; trial would proceed on the remain-

ing counts. In short, respondent may have been con-

victed, but not “autrefois,” which means on another

occasion.

2. The determination of when an individual de-

fendant has been subjected by state court proceedings

to a prior jeopardy sufficient to bar a further prose-

cution of the government’s charges does not depend

on the technical form of the state’s process. See

Swisher v. Brady, 488 U.S. 204 (1978). Thus, the

fact that the arraignment judge allowed respondent

to plead separately to lesser included offenses in a

preliminary_proceeding should not bar his trial on the

remaining portion of the case unless to do so would

significantly undermine an interest guarded by the

double jeopardy protection.

Allowing the single trial proposed by the State

offends no double jeopardy policy. Respondent will

not be subjected to any undue “embarrassment, ex-

pense or ordeal” by having pled guilty at an arraign-

ment and then nevertheless having to face a single

trial later. Green v. United States, 355 U.S. 184

(1957). Nor does the policy of “finality” based on

the prior judgment entered on the pleas justify bar-

ring a trial. A pretrial disposition never creates

more than a unilateral hope in the defendant that

the case will end; it engenders no legitimate expecta-

tion protected by double jeopardy that the case will

never proceed to trial. See Serfass v. United States,

420 U.S. 377 (1975).

The only “right” that is jeopardized by the Ohio

proceedings is the State’s to a full and fair

opportunity to prosecute respondent for the serious

crimes with which he is charged. If.

federal prosecution, we would urge the Court to va-

cate the plea as beyond the power of a federal court

to accept over the government’s objection and to re-

mand for trial on the original indictment. Trial

would be permissible just as in any other case in

which the district court has erroneously dismissed

charges prior to trial. Serfass v. United States,

supra. Indeed, even a dismissal that occurred as the

result of a midtrial plea to a lesser offense, made at

the defendant’s behest and over the prosecution’s ob-

jection, would be reviewable, and retrial permissible,

under United States v. Scott, 487 U.S. 82 (1978).

We can see no reason under the Double Jeopardy

Clause or logic why the result should be different

simply because the guilty plea to the lesser included

offenses remains in effect.

If we are mistaken in our position that the proceed-

ing should be viewed as a single occasion of jeopardy,

respondent nevertheless is not immunized from trial,

because he alone was responsible for this case being

conducted in separate phases. “[A]lthough a defend-

ant is normally entitled to have charges on a greater

and lesser offense resolved in one proceeding, there is

no violation of the Double Jeopardy Clause when he

elects to have the two offenses tried separately and

persuades the trial .court to honor his election.”

Jeffers v. United States, 482 U.S. 187, 152 (1977)

(footnote omitted). Here, the State has done every-

thing it could to have this entire transaction disposed

of in a single proceeding; it was respondent who —

voluntarily chose to have the case handled in two ~

stages. The Double Jeopardy Clause “does not re-

lieve a defendant from the consequences of his volun-

tary choice,” United States v. Scott, 487 U.S. at 99,

and therefore the State should be permitted to pro-

ceed to trial on the remaining counts of the indict-

ment.

ARGUMENT

As this Court has repeatedly stated, the Double

Jeopardy Clause affords a criminal defendant three

principal protections: “It protects against a second

prosecution for the same offense after acquittal. It

protects against a second prosecution for the same

offense after conviction. And it protects against

multiple punishments for the same offense.” North

Carolina v. Pearce, 395 U.S. 711, 717 (1969) (foot-

notes omitted). See also Illinois v. Vitale, 447 U.S.

410 (1980); Brown v. Ohio, 482 U.S. 161, 165

(1977) ; United States v. Wilson, 420 U.S. 332, 343

(1975). In order properly to resolve the issue posed

in this case, it is necessary first to determine which

of the double jeopardy protections is implicated by

acceptance of a guilty plea to some charges, followed

by a trial on other, greater offenses charged in the

same indictment.

The first protection obviously has no application

here; there has been no acquittal, actual or implied.

The only actual judgment was a conviction based on

respondent’s guilty plea, and, as the federal courts of

appeals have consistently held, the acceptance of a

plea to a lesser included offense cannot be deemed an

implied acquittal of the greater offense within the

meaning of cases such as Price v. Georgia, 398 U.S.

3238, 329 (1970), and Green v. United States, 355

U.S. 184, 191 (1957). See United States,v. Cruz, 709

F.2d 111, 114 (1st Cir. 1983) (“[a]eceptance of a

guilty plea to a lesser offense carries no implied

acquittal of the greater offense and for this reason

is not the same as a verdict”); United States v.

Vaughan, 715 F.2d 1878, 1875 (9th Cir. 1983);

United States v. Barker, 681 F.2d 589, 591-592 (9th

Cir. 1982) ; Klobuchir v. Pennsylvania, 639 F.2d 966

(3d Cir.), cert. denied, 454 U.S. 1031 (1981) ; Hawk

v. Berkemer, 610 F.2d 445, 447 (6th Cir. 1979);

United States v. Johnson, 587 F.2d 1170, 1174 (4th

Cir. 1976) ; United States v. Williams, 534 F.2d 119,

121-122 (8th Cir.), cert. denied, 429 U.S. 894

(1976). While a trial court must inquire into the

factual basis for a defendant’s proffered guilty plea,

that inquiry focuses exclusively on the elements of

the crime that is the subject of the plea and sheds

no light on the defendant’s guilt or innocence of any

other charges containing additional or different ele-

ments. Thus, the lower court decisions constitute a

straightforward application of this Court’s holding

in United States v. Scott, 487 U.S. 82, 97 (1978)

(brackets in original) (quoting United States v. Mar-

tin Linen Supply Co., 480 U.S. 564, 571 (1977)),

that “a defendant is acquitted only when ‘the ruling

of the 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 of-

fense charged.’” It is thus clear that respondent has

no double jeopardy claim based on his right not to be

tried again after an acquittal.

The Supreme Court of Ohio concluded that Pearce’s

third prong, the protection against multiple punish-

ments, was the relevant concern in this case (Pet.

App. A4). This conclusion is, we submit, manifestly

incorrect. Respondent has received no multiple pun-

ishments for a single offense. He has not been, and

indeed he may never be, convicted of the greater of-

fenses charged in his indictment. In the event he is

convicted on the murder and :aggravated robbery -

charges, it would appear from the opinion below that

the penalty for the lesser offenses would merge and

thereby bar the State from imposing consecutive sen-

tences.* But this is certainly no basis for holding that

the State cannot try respondent on multiple charges

in the same indictment. See Green v. €/ntted States,

865 U.S. 301, 306 (1961) (entry of lesser punish-

ment before entry of greater in same case does not

limit defendant’s sentence to the lesser).* “Where

?The construction of state statutes regarding lesser in-

cluded offenses is a matter generally left to the state courts.

See, e.g., Illinois v. Vitale, 447 U.S. at 416-417; Brown V.

Ohio, 482 U.S. at 167. The Supreme Court of Ohio ruled in

this case that the state offense of theft is a lesser included

offense of the crime of aggravated robbery (Pet. App. A7).

It is not altogether ciear from the court’s opinion, however,

what the precise relationship is between the State’s statutes

prohibiting murder and involuntary manslaughter. The fed-

eral crime of involuntary manslaughter (18 U.S.C. 1112) is

a lesser included offense of murder (18 U.S.C. 1111). See

United States v. Lincoln, 680 F.2d 1818, 1820 (8th Cir. 1980) ;

United States v. Hendriz, 542 F.2d 879, 888 (2d Cir. 1976),

cert. denied, 480 U.S. 959 (1977). The court below stated

without explanation, however, that involuntary manslaughter

in. Ohio requires a mental state inconsistent with that re-

quired to prove murder (Pet. App. A8-A9). Under that

theory, involuntary manslaughter may not be a lesser included

offense of murder, see Blockburger v. United States, 284 U.S.

299, 804 (19382), although a second prosecution after a convic-

tion on one of the charges still would appear to be barred on

collateral estoppel principles. See Brown v. Ohio, 482 U.S. at

166-167 n.6. In any event, we take no position on the State’s

contention (Pet. 14-15) that the two offenses do not bear the

relationship of greater and lesser included.

* The Ohio multiple count statute, Ohio Rev. Code Ann.

§ 2941.25 (Page 1982), forbids two convictions for “allied

offenses,” but expressly allows the State to charge two such

offenses. Thus, no problem should arise unless and until con-

consecutive sentences are imposed at a single crim-

inal trial, the role of the constitutional guarantee

is limited to assuring that the court does not ex-

ceed its legislative authorization by imposing multiple

punishments for the same offense.” Brown v. Ohio,

432 U.S. at 165; see Missouri v. Hunter, No. 81-1214

(Jan. 19, 1988), slip op. 9; Gore v. United States,

357 U.S. 386, 392-393 (1958). Thus, respondent’s

right to be free from multiple punishments is simply

not ripe for consideration at this time. Should he be

convicted of murder and/or aggravated robbery, his

right against multiple punishments can be fully pro-

tected by review of the sentences he receives.

In analyzing the issue in terms of multiple punish-

ments, perhaps the court below thought it was apply-

ing this Court’s statement that “[i]f two offenses are

the same under [the Blockburger test] for purposes

of barring consecutive sentences at a single trial,

they necessarily\ will be the same for purposes of

barring successive prosecutions.” Brown v. Ohio, 432

U.S. at 166. See also In re Nielsen, 131 U.S. 176,

187-188 (1889). The problem with reliance on this

principle in the present circumstances is that it is

unresponsive to the question it is invoked to decide—

whether a trial on the greater offense is a successive

prosecution after a guilty plea to the lesser charge

contained in the same indictment. Thus, the state-

ment in Brown merely poses the problem; it does not

answer it. It does, however, bring us to the only

part of the Double Jeopardy Clause that can have

any arguable relevance to this case, the prohibition

against successive prosecutions.

victions are obtained for both offenses ; at that point, the con-

viction on the lesser allied offense could be vacated, if appro-

priate, thereby fully protecting respondent’s rights under the

statute.

A. The Double Jeopardy Prohibition Against Successive

Prosecutions Would Not Be Violated In This Case,

Because Trial On The Remaining Charges Will Com-

plete A Single, Continuing Prosecution

1. At bottom, double jeopardy is principally a rule

of finality; it constitutionalizes for criminal cases the

civil law’s principles of res judicata and collateral

estoppel. See Ashe v. Swenson, 397 U.S. 436, 449

(1970).* Like res judicata in civil cases, double jeop-

ardy saves the criminal defendant from continued

distress caused by attempts to relitigate previously

resolved charges and enables both the defendant and

the state “to consider the matter closed and to plan

ahead accordingly.” Comment, Twice in Jeopardy,

75 Yale L.J. 262, 277 (1965). This guarantees

that a prosecutor, dissatisfied with a criminal defend-

ant’s sentence, will not be able to retry the defendant

in order to obtain a more “appropriate” sentence

from a second judge (id. at 278).

These general policies of finality, derived from the

common law pleas of autrefois acquit and autrefois

convict, form the basis of the rule that the Double

Jeopardy Clause prohibits a separate prosecution of

a defendant for a greater offense after he has been

convicted ofsalesser included offense. Brown v. Ohio,

supra. This has never considered whether that

rule applies when a criminal defendant pleads guilty

to the charges against him, rather than having stood

trial, but there is no reason to doubt that it should.’

* Because respondent relies on his convictions on lesser

included offenses to bar trial on the greater, the collateral

estoppel component of double jeopardy has no application

to this case.

* An issue that may appear relevant to the proper disposi-

tion of this case, but which is in fact a red herring, is whether

A guilty plea to all charges in a criminal case, or to

some charges with dismissal of others pursuant to a

plea bargain, leads to a final judgment resolving the

dispute between the litigants. Thereafter, under

standard principles of res judicata, the defendant is

entitled to consider the matter closed, and the prose-

cutor is properly barred from attempting to obtain

another conviction on the same offense (including

greater or lesser included variants) to the same ex-

tent as if the conviction had followed a trial. Thus,

under Brown v. Ohio, supra, if respondent had been

jeopardy attaches to a guilty plea. This Court has never faced

the issue, although one lower federal court has stated that

“Ta]n impressive number of federal cases are nearly unani-

mous in holding that jeopardy attaches upon the court’s

acceptance of a guilty plea.” United States vy. Cruz, 709 F.2d

at 112-118 & n.2 (citing cases). We have ».o quarrel with

the holding in most of those cases that, exce,t where the de-

fendant has obtained vacation of the conviction based on the

plea, a guilty plea to an offense should bar a subsequent prose-

cution for the same offense. Compare United States v. Cam-

bindo Valencia, 609 F.2d 608, 687 (2d Cir. 1979), cert. denied,

446 U.S. 940 (1980), with United States v. Williams, 584 F.2d

119, 121 (8th Cir.), cert. denied, 429 U.S. 894 (1976). One of

the cases cited in Cruz, however, involved the situation pre-

sented here of a defendant pleading guilty to lesser included

offenses and not guilty to greater offenses. See United States

v. Rocco, 397 F. Supp. 655 (D. Mass. 1975). But the opinion

in Rocco does not explain why, prior to trial and prior to any

truly “final” judgment resolving the disputed issues, there is

any basis for concluding that jeopardy attached to the greater

charges in the indictment. Thus, the statement that jeopardy

attaches to a guilty plea is almost certainly true for some pur-

poses, but diverts attention in this case from what is im-

portant, which is that the estoppel effect of double jeopardy

should be available to a defendant only when the entire dis-

pute is either settled between the litigants or finally resolved

after a trial on all of the disputed issues.

charged only with involuntary manslaughter and

grand theft, and had pleaded guilty to those charges

and been sentenced on them, respondent’s interest in

finality, protected by the Double Jeopardy Clause,

would bar a subsequent effort to prosecute him for

murder and aggravated robbery.

But the policy favoring “finality” cannot justify

extending the rule of Brown v. Ohio, supra, against

successive prosecutions to this case. Here, respondent

offered through his proposed pleas to resolve only a

portion of the entire case, and the State objected to

disposing of any of the counts short of trial. Unlike

in Brown or in the above hypothetical, there has been

no resolution of all of the issues in dispute between

the litigants in this case, and therefore no final judg-

ment that could create a double jeopardy bar to pro-

ceeding with the unresolved portions of the case. See

G.4C. Merriam Co. v. Saalfield, 241 U.S. 22, 28

(1916).

In a civil suit arising out of a single transaction,

if a plaintiff sought damages against the defendant

in a complaint containing four counts and the defend-

ant admitted liability on two counts with smaller po-

tential liability, he could not thereby settle the litiga-

tion over the plaintiff’s objection. Even if a separate

judgment on the two counts were entered, it would

not end the case, because the plaintiff would still be

entitled to his day in court on the unresolved greater

claims. There would simply be no final adjudication

of the issues that could justify invoking res judicata

to prevent the plaintiff from proceeding with the re-

mainder of his case. Since, apart from the special

treatment accorded acquittals, double jeopardy basic-

ally embodies the civil law’s concepts of finality, there

is no reason why the result should be any different

in a criminal case.* The defendant’s double jeopardy

interest in finality simply does not exist until the en-

tire matter is settled to the mutual satisfaction of the

parties or the case has actually been tried. Neither

event occurred in this case, and therefore double jeo-

pardy should not bar further proceedings on the is-

sues that remain untried and unresolved.

2. Even assuming that traditional res judicata

principles as to finality cannot be incorporated di-

rectly into double jeopardy analysis, we submit that

under this Court’s prior decisions the State’s attempt

to take this case to trial on the remaining charges

would not impermissibly place respondent twice in

jeopardy. We are willing to assume for purposes of

this argument that jeopardy attached to respondent’s

guilty plea (but see note 5, supra), and therefore

that the proposed further proceedings should be scru-

tinized to determine whether they create a risk of

placing respondent twice in jeopardy. See Illinois v.

Somerville, 410 U.S. 458, 467 (1973) (when jeopardy

attaches “begins, rather than ends, the inquiry as to

whether the Double Jeopardy Clause bars” a further

trial); Serfass v. United States, 420 U.S. at 390

(same). Thus, the issue is whether the nature of the

“two” proceedings to which respondent may be sub-

* Double jeopardy also protects a defendant’s “valued right

to have his trial completed by a particular tribunal.” Wade v.

Hunter, 386 U.S. 684, 689 (1949) ; Crist v. Bretz, 487 U.S. 28,

85 (1978). For this reason, the Court’s double jeopardy doc-

trine has modified ordinary res judicata principles somewhat

by deeming a case to be potentially “final” once a jury is sworn

or evidence is taken in a bench trial. But no protected interest

of the defendant is implicated by the arraignment process, and

there is therefore no reason not to follow ordinary res judicata

notions of finality in considering whether pretrial disposition

of a part of the case bars further proceedings on the rest of it.

jected is such that a trial is merely a continuance of

a single jeopardy or a prohibited attempt to place re-

spondent twice in jeopardy. See Swisher v. Brady,

438 U.S. 204, 215 (1978).

The Court’s decision in Swisher, upholding Mary-

land’s juvenile court proceeding against a double jeop-

ardy challenge, strongly indicates that, notwithstand-

ing acceptance of the guilty pleas, Ohio’s prosecution

should be viewed as merely a single occasion of jeop-

ardy. In Swisher, Maryland’s juvenile court scheme

provided for the use of masters in the initial phase

of juvenile court proceedings. In a hearing before a

master, the State would present its case by calling

its witnesses and introducing documentary evidence,

and the minor would present his defense. The mas-

ter would then submit to the juvenile court judge his

proposed findings of fact, conclusions of law, and rec-

ommendations. Both the State and the minor could

file exceptions and elect review by the judge, either

solely on the basis of the record made before the

master or, if no one objected, on the basis of the rec-

ord and supplemental evidence presented to the judge.

The judge could accept, reject, or modify the master’s

proposed disposition, regardless of whether any party

submitted exceptions.

This Court held that this type of two-stage proceed-

ing was permissible, even though, unlike in this case,

the first stage had resulted in what could arguably

be characterized as an acquittal. Examining the pur-

poses of the Double Jeopardy Clause’s bar against

successive prosecutions, the Court found that none

was infringed. Because the State could present its

evidence only once, in the hearing before the master,

with supplemental evidence allowed only with the

consent of the minor, the prosecution was not pro-

vided with “another opportunity to supply evidence

which it failed to muster in the first proceeding.”

~ pits

x "

Swisher, 488 U.S. at 215-216 (quoting Burks v.

United States, 487 U.S. 1, 11 (1978)). Nor was the

prosecutor allowed to enhance the risk of convicting

an innocent defendant by taking the question of guilt

to two separate factfinders. The juvenile court judge

was empowered to accept, modify, or reject the mas-

ter’s proposals; the judge was thus the sole adjudica-

tor (488 U.S. at 216). Finally, the Court found

that the juvenile proceedings did not subject the de-

fendant to the ordeal of a second trial, because what-

ever supplemental proceeding might be conducted by

the judge was far more akin to post-trial legal argu-

ments or briefing than to a full-blown second trial

(id. at 216-217) .

The “two-step” prosecution that respondent’s guilty

plea has caused in this case does no more violence to

any of the purposes behind the Double Jeopardy

Clause than Maryland’s juvenile procedure. A trial

on the remaining charges will not provide the prose-

cution with the forbidden “second crack’ at supplying

evidence it could not muster at a first trial, because

there has been no trial at all and therefore no factual

presentation by the State. Nor is the State attempt-

ing to take its case to a series of factfinders in order

to enhance the possibility of a conviction. Respondent

has admitted his guilt on two of the charges; the

State is simply trying to resolve the remaining, con-

tested charges by submitting them for the first time

to a factfinder empowered to determine guilt or in-

nocence. The State thereby seeks a fair opportunity

to force respondent to “run the gauntlet” one time,

and no more, for the serious crimes he is alleged to

have committed. See Green v. United States, 355 U.S.

at 190.

Indeed, allowing the single trial proposed by the

State does not offend any double jeopardy policy rec-

ognized by this Court. The -Court has repeatedly

stressed that thc underlying purpose of barring re-

trial is to protect the criminal defendant from the

“embarrassment, expense and ordeal” of a second

trial. Green v. United States, 355 U.S. at 187. See

United States v. DiFrancesco, 449 U.S. 117, 128-129

(1980); Crist v. Bretz, 487 U.S. 28, 35 (1978);

Serfass v. United States, 420 U.S. at 387-388. Sub-

jecting respondent to the single trial called for in the

indictment handed down by the grand jury consti-

tutes neither harassment nor repetitious litigation.

United States v. Goldman, 352 F.2d 268, 266 (8d

Cir. 1965). Nor did the hearings in connection with

respondent’s guilty plea impose any burdens or anxie-

ties on him comparable to those associated with a

trial, see United States v. Cruz, 709 F.2d at 114

(“the ‘ordeal’ of a Rule 11 proceeding is significantly

different from the ordeal of trial”) ; and respondent

did not suffer any risk of conviction at the guilty plea

hearing on the charges to which he did not propose

to plead guilty. In short, this case does not present

an example of anything even remotely approaching

the kind of governmental oppression that the Double

Jeopardy Clause was intended to preclude. See

United States v. Scott, 487 U.S. at 96, 99.”

7 As this Cdart summarised its holding in Scott (Swisher v.

Brady, 438 U.S. at 218):

In Scott we held that it is not all proceedings requiring

the making of supplemental findings that are barred by

the Double Jeopardy Clause, but only those that follow

a@ previous trial ending in an acquittal; in a conviction

either not reversed on appeal or reversed because of in-

sufficient evidence, see Burke v. United States, supra;

or in a mistrial ruling not prompted by “manifest neces-

sity,” see Arizona Vv. Washington, 484 U.S. 497 (1978).

In this case, there having been as yet no trial ending in either

an acquittal, conviction, or mistrial, the continuation of the

prosecution follows none of those occurrences.

Nor should the result be affected by the fact that

a judgment was entered on the guilty pleas that was

separate from the order dismissing the remaining

counts. It is clear that the proper outcome of the

double jeopardy issue should not turn on this “tech-

nicality.” See Serfass v. United States, 420 U.S. at

391. Finality in pre-trial proceedings is simply not

very meaningful. Respondent’s stake in finality is, if

anything, less than that of the defendant in Serfass,

who received a final judgment on the merits dis-

missing the entire proceeding against him.’ This

Court nevertheless held that a trial was fully war-

ranted if the dismissal was not justified. See also

United States v. Scott, 437 U.S. at 96. Respondent’s

unilateral desire to end this proceeding without a

trial is not a sufficient reason under the Double Jeop-

ardy Clause to deprive the State of its opportunity to

have its duly returned and as yet unresolved charges

heard by a trier of fact.

Thus, no interest of respondent protected by double

jeopardy policies is at stake here. On the other hand,

if the prosecution is pretermitted at this point, one

“right” will be violated—the public’s vital right to

“one complete opportunity to convict those who have

violated its laws.” Arizona v. Washington, 434 U.S.

497, 509 (1978). Indeed, if this were a federal pros-

ecution, we would contend that the district court was

* As we explained previously, finality does protect the de-

fendant’s right to consider the matter closed and begin to plan

ahead. But where, as here, the defendant merely seeks to

eliminate a portion of the case, he cannot reasonably anticipate

that the matter is closed. If respondent anticipated the double

jeopardy windfall that his plea might provide, he should not be

allowed to use the timing of his motions to create the appear-

ance of a final determination separate from the dismissal of

the remaining charges. See Jeffers v. United States, supra.

utterly without power to accept respondent’s guilty

plea over the government’s objection.’ “[U]nder the

Constitution, the government, as well as the defend-

ant, has the right to insist upon a jury determination

of those facts [alleged in the indictment],’”’ and there-

fore “a plea to a lesser offense may not be tendered,

and cannot be accepted by the court, unless the gov-

ernment consents.” United States v. Gray, 448 F.2d

164, 168 (9th Cir. 1971), cert. denied, 405 U.S. 926

(1972) (granting a writ of mandamus reinstating

the charges in the indictment). See United States v.

Olson, 504 F.2d 1222, 1224-1225 (9th Cir. 1974)

(“On the district attorney rests the responsibility to

determine whether to prosecute, when to prosecute

and on what charges to prosecute.”). See also United

States v. Batchelder, 442 U.S. 114, 124 (1979);

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978);

Newman v. United States, 382 F.2d 479*(D.C. Cir.

1976) (Burger, J.).

Thus, if a federai court had cut off the govern-

ment’s effort to prosecute a defendant in accordance

with the grand jury’s indictment, the resolution of

the case we would propose would be simply to vacate

the guilty plea and reinstate the full indictment.

°We do not know whether the State of Ohio ordinarily

allows its trial courts to accept guilty pleas to lesser included

offenses without the prosecution’s consent. The Supreme Court

of Ohio did not address this question, although the dissent

states (Pet. App. All) that the pleas were “improperly”

accepted. Obviously, if the State chose to, it could permit

entry of guilty pleas to lesser offenses over the prosecution’s

objection and could also bar trials after the entry of such

pleas as a matter of state law. But there is no reason why

any such unique procedure for handling pleas to lesser in-

cluded offenses should alter the appropriate disposition of this

case under the Double Jeopardy Clause. See pages 21-22, infra.

Since jeopardy does not attach to a vacated plea en-

tered prior to the swearing of the jury or the taking

of evidence, see Serfass v. United States, 420 U.S.

at 390-391, the “constitutional policies underpinning

the Fifth Amendment’s guarantee” are not implicated,

and therefore there would be no bar to going forward

with the full trial on all of the charges, including the

lesser ones. United States v. Jorn, 400 U.S. 470,

480 (1970).

There is no apparent reason why the result should

be any different for double jeopardy purposes simply

because the State has no mechanism for vacating the

guilty plea entered over its objection. Certainly, the

defendant’s interests are identical in both cases, as

long as he cannot be subjected to multiple trials or

punishments for the same offense. The only possible

difficulty created by the existing guilty pleas, and it

is really a due process and not a double jeopardy

problem, is how the court should handle the lesser in-

cluded offense issue if respondent goes to trial. See

Beck v. Alabama, 447 U.S. 625 (1980); Keeble v.

United States, 412 U.S. 205 (1973). This was a

concern to both the trial court and the court of ap-

peals (Pet. App. Al6, A23). But this problem can

be eliminated by allowing respondent to withdraw his

guilty pleas to the lesser offenses; alternatively, if the

pleas are not withdrawn, respondent may neverthe-

less be permitted to elect whether the lesser included

offenses should be subinitted to the jury.” Either of

these procedures will protect respondent from the risk

10 No double jeopardy problem would arise from giving the

lesser included offense instruction after respondent has pleaded

guilty to those charges, since the decision to proceed in that

way will have been respondent’s. See Jeffers v. United States,

482 U.S. 187 (1977), and pages 23-27, infra.

of being convicted of the greater offense, even though

the jury may have a reasonable doubt on the issue of

intent, in order to avoid letting him go free if it be

lieves he has committed some crime. See Beck v.

Alabama, 447 U.S. at 634-635; Keeble v. United

States, 412 U.S. at 212-213. Accordingly, the guilty

plea presents no obstacle to conducting a fair trial on

the remaining charges.

This Court has “disparaged ‘rigid, mechanical’

rules in the interpretation of the Double Jeopardy

Clause.” Serfass v. United States, 420 U.S. at 390

(quoting Illinois v. Somerville, 410 U.S. at 467). The

holding that the entry of a guilty plea in the context

of a single proceeding bars a trial furthers no policy

of the Fifth Amendment and thus necessarily employs

a “mere technicality” (420 U.S. at 391) as the sole

basis for holding that respondent's rights have been

violated. What this case involves is one episode, one

indictment with four counts properly joined, a guilty

plea to two counts, and a potential verdict on the

others. There will be one trial, and noncumulative

sentences. Respondent's trial should be viewed in its

entirety as but a single occasion of jeopardy. Green

v. United States, 355 U.S. at 187; United States v.

Combs, 634 F.2d 1295, 1298, 1299 (10th Cir. 1980),

cert. denied, 451 U.S. 913 (1981) ; ef. People v. Tide-

man, 57 Cal. 2d 574, 370 P.2d 1007, 21 Cal. Rptr.

207 (1962). Accordingly, the Double Jeopardy Clause

does not bar the State from proceeding further with

its prosecution.

B. Respondent’s Double Jeopardy Right To Have Greater

And Lesser Included Offenses Resolved In One Pro-

ceeding Has Not Been Violated, Because He Elected

By His Guilty Pleas To Have The Charges Resolved In

Two Stages

As we have previously acknowledged, the Double

Jeopardy Clause ordinarily prohibits prosecution of a

defendant for a greater offense after he has been

convicted in a prior proceeding of a lesser included

offense. Brown v. Ohio, supra. This rule is not,

however, absolute.”

An important exception to this rule was recognized

in Jeffers v. United States, supra, in which a plu-

rality of the Court found no constitutional violation

where the defendant was responsible for separate

trials being held on greater and lesser included of-

fenses. Thus, assuming contrary to our submission

in the previous point that respondent’s guilty pleas

constitute “prior convictions” within the meaning of

Brown v. Ohio, supra, double jeopardy still does not

bar further proceedings in the present circumstances

because respondent, and not the State, is responsible

for the bifurcated nature of the proceedings. The

facts of this case provide even stronger support than

in Jeffers for a conclusion that no double jeopardy

violation would result from separate resolution of the

greater and lesser charges.

4 Qne recognized exception occurs when additional facts

necessary to the greater crime either have not taken place at

the time the prosecution for the lesser is begun, or have not

been discovered despite the exercise of due diligence. Jeffers

v. United States, 482 U.S. at 151-152; Blackledge v. Perry, 417

U.S. 21, 29 n.7 (1974) ; Diaz v. United States, 228 U.S. 442

(1912) ; Ashe v. Swenson, 897 U.S. 486, 458 n.7 (1970) (Bren-

nan, J., concurring).

In Jeffers, a grand jury had returned two indict-

ments against the defendant, one charging him and

nine others with conspiring to distribute heroin and

cocaine, in violation of 21 U.S.C. 846, and the other

charging him alone with conducting a continuing

criminal enterprise to violate the drug laws, in vio-

lation of 21 U.S.C. 848, by his supervisory role in the

drug distribution ring. Jeffers and his co-defendants

opposed the government’s motion to consolidate the

indictments for trial, and it was denied. Jeffers and

his co-defendants were tried on the Section 846 con-

spiracy charge, and Jeffers was found guilty.

Jeffers then moved to dismiss the Section 848 in-

dictment on the ground that the conspiracy conviction

barred a subsequent trial on that charge, contending

that the Section 846 conspiracy was a lesser included

offense of the Section 848 continuing criminal enter-

prise. The district court denied this motion, and

Jeffers was tried and convicted on the continuing

criminal enterprise charge. This Court, assuming

arguendo that Section 846 was indeed a lesser included

offense of Section 848, nevertheless concluded that

double jeopardy principles did not bar the second

trial (432 U.S. at 152 (footnotes omitted) ) :

[A]lthough a defendant is normally entitled to

have charges on a greater and a lesser offense

resolved in one proceeding, there is no violation

of the Double Jeopardy Clause when he elects to

have the two offenses tried separately and per-

suades the trial court to honor his election.

* * * [The defendant] was solely responsible for

the successive prosecutions for the conspiracy of-

fense and the continuing-criminal-enterprise of-

fense. Under the circumstances, we hold that his

action deprived him of any right that he might

have had against consecutive trials.

Here, just as in Jeffers, respondent was solely re-

sponsible for the need to resolve the charges against

him in separate proceedings, and therefore his actions

should preclude him from asserting any double jeop-

ardy claim he might otherwise have had. But for re-

spondent’s decision to ask the trial court to accept his

guilty pleas to the two less serious charges, he would

have faced but one trial on the entire indictment, as

the State urged in resisting his guilty pleas.

Indeed, two significant facts in this case make it

even more appropriate than in Jeffers to reject the

double jeopardy claim. Although the Jeffers plurality

found that the prosecution was not responsible for

the separate trial of the greater and lesser offenses,

it had, as the dissent pointed out (482 U.S. at 159-

160 (Stevens, J.)), chosen to return separate indict-

ments and to try the lesser offense before the greater

when its effort at consolidation failed. In the instant

case, by contrast, the State was proceeding on a single

indictment, so that from the outset of the prosecution

there was never any reason to expect other than a

single proceeding, nor was there any basis for the de-

fendant to oppose a single trial. Furthermore, unlike

Jeffers, who did undergo two trials (see id. at 159 n.5

(Stevens, J.)), respondent will undergo “successive

prosecutions,” if at all, only in the sense that the

entry of his guilty pleas and later trial are somehow

technically considered separate proceedings. At the

completion of the contemplated proceedings against

him, however, he will have undergone only one trial.

Nor can Jeffers be limited to the relatively unusual

circumstance involved in that case, where the defend-

ant expressly asked for two separate trials on the

two offenses and convinced the trial court to allow

them. This Court has consistently held that whenever

the defendant is the moving force before the trial

court in creating the need for some additional pro-

ceedings, after jeopardy has attached, the government

is not, absent oppressive conduct by the prosecutor,

barred from completing its prosecution.“ Thus, in

United States v. Scott, supra, the Court held that a

retrial would be permissible when the defendant had

moved during trial to dismiss his prosecution for pre-

indictment delay. The Court concluded “that the

Double Jeopardy Clause, which guards against Gov-

ernment oppression, does not relieve a defendant

from the consequences of his voluntary choice” (437

U.S. at 99). It seems clear from Scott that if the plea

and attendant dismissal had occurred in the middle

of trial, appeal and retrial would be permissible with-

out violating the Double Jeopardy Clause. The fact

that both events preceded the start of any trial in

this case could hardly afford respondent greater

rights.

12 The only possibly “oppressive” action in this case—and it

seems to us exceedingly farfetched to so characterize it—is

the grand jury’s decision to include separate counts in the in-

dictment. This practice has been cited in double jeopardy cases

to justify allowing the defendant to plead to the lesser offense

and thereby bar further trial. See United States v. Combs,

634 F.2d at 1808 (McKay, J., dissenting) ; United States v.

Rocco, 397 F. Supp. 655 (D. Mass. 1975). But both Ohio’s

rules, Ohio Rev. Code Ann. § 2941.25 (Page 1982) and Fed. R.

Crim. P. 8(a) allow separate offenses to be listed in separate

counts. We fail to see how the practice could prejudice a de-

fendant in any way, and thus it makes no sense to rely upon

the form of the indictment as the basis for deciding when a

retrial is permissible. See Jeffers v. United States, 482 U.S. at

158 n.20. ;

Similarly, in United States v. Dinitz, 424 U.S. 600

(1976), the Court allowed retrial after defense coun-

sel’s conduct had caused the trial court to remove

him, and the defendant agreed to a mistrial in order

to obtain new counsel. The Court held that double

jeopardy was not violated because “the defendant re-

tainfed] primary control over the course to be fol-

lowed * * *” (424 U.S. at 609); cf. Oregon v. Ken-

nedy, 456 U.S. 667, 672 (1982); United States v.

Tateo, 377 U.S. 463, 467 (1964). Respondent volun-

tarily chose to create two separate “proceedings” by

pleading guilty to two counts instead of either plead-

ing guilty to all counts or going to trial on all of them.

if allowing the State one trial on the murder and

robbery charges is deemed to subject him to a second

jeopardy, it is a problem of respondent’s own making.

Particularly since it seems quite clear that the guilty

pleas were a conscious stratagem to create a potential

double jeopardy impediment to prosecution on the

more serious charges leveled against respondent,” it

offends fundamental concepts of justice to hold the

State barred from trying respondent even once.

18 At the arraignment hearing, the judge told respondent’s

counsel that he wondered “what problems [respondent] is

creating for himself by entering a plea at this time” (10/9/80

Arraignment Tr. 5). Respondent’s counsel assured the judge

“that [the plea] has been carefully thought out (ibid.) and

informed the court that “if the State were to proceed on the

prosecution of the other two counts as I am sure they would,

the [respondent] would have certain matters to bring to

the Court’s attention” (id. at 5-6). The State’s attorney

understood the import of respondent’s counsel’s comment, and

immediately objected to the acceptance of the pleas because

they might create “double jeopardy problems if the State

nek ee ee oe ee

-_—

CONCLUSION

The judgment of the Supreme Court of Ohio should

be reversed.

Respectfully submitted.

REx E. LEE