# Amicus Brief for the United States — Ohio v. Johnson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0693%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief for the United States
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 493

## Text

No. 83-904

Office - Supreme Court, U.S.
FILED

MAR @ 1004

4

ERG LIE

OCTOBER TERM, 1983

STATE OF OHIO, PETITIONER
v.
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)

IV

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

Vv

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
v.
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

i

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,

4

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.

A.

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-

7

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.

B.

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,

8

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 -

10

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-

-

11

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.

12

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

18

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.

14

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

15

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.

16

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 "
Re

17

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

18

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.

19

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.

20

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.

21

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.

22

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).

24

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

s
df

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. ;

27

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
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

MARCH 1984

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0693%3A08. Public record. Not legal advice.