Attorney for Appellant Attorneys for Appellee
John Pinnow Steve Carter
Special Assistant to the Public Defender of Indiana
Attorney General of Indiana
Indianapolis, Indiana Indianapolis, Indiana
Christopher C.T. Stephen
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 76S03-0503-CR-93
Valentin Jaramillo,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plantiff below).
_________________________________
Appeal from the Steuben County Superior Court, No. 76D01-0208-FB-924
The Honorable William C. Fee, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 76A03-0306-
CR-209
_________________________________
March 11, 2005
Sullivan, Justice.
At issue in this appeal is whether the Double Jeopardy Clause of the
U.S. Constitution bars re-trial of a habitual offender enhancement set
aside on appeal for insufficient evidence. Although this Court has often
held that it does, we conclude that those holdings are no longer good law
in light of Monge v. California, 524 U.S. 721 (1998).
Background
Following a collision in August, 2002, in which a man was killed,
Defendant Valentin Jaramillo was charged with Operating While Intoxicated
Causing Death,[1] a Class C felony. The State sought to have the offense
enhanced to a Class B felony on grounds that he had been convicted of
operating a vehicle while intoxicated in March, 1998, and sought to have
Defendant adjudicated a habitual substance offender on grounds of the
instant charge, the March, 1998, conviction, and a third conviction for
operating while intoxicated in June, 1997.[2] In a bifurcated proceeding,
a jury first found Defendant guilty of the Class C felony and then the
Class B felony and to be a habitual substance offender.
Defendant appealed the convictions, arguing that there was
insufficient evidence to support the enhancement of his conviction for
driving while intoxicated from a Class C felony to a Class B felony and
that there was insufficient evidence to support the determination that he
is a habitual substance offender.[3]
The Court of Appeals resolved both claims in Defendant’s favor,
finding that the State had failed to prove that a conviction was entered on
Defendant’s March, 1998, guilty plea. That offense was the predicate
offense for the Class B enhancement and a necessary predicate for the
habitual substance offender enhancement. Jaramillo v. State, 803 N.E.2d
243 (Ind. Ct. App. 2004). The State does not challenge this determination
on transfer. However, the Court of Appeals also held that federal double
jeopardy principles did not bar the State from retrying the defendant on
the Class B and habitual substance offender enhancements. Id. at 250.
Defendant seeks transfer on this issue.
Discussion
The Double Jeopardy Clause of the Fifth Amendment, applicable to the
States through the Fourteenth Amendment, provides, “Nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. Const. amend. V. It protects against successive prosecutions for the
same offense after acquittal or conviction and against multiple criminal
punishments for the same offense. See United States v. Dixon, 509 U.S.
688, 695-96 (1993); North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
I
Both parties, as well as the Court of Appeals, suggest that the
resolution of this issue turns upon Monge v. California, 524 U.S. 721
(1998).
Monge arose under California’s so-called “three-strikes” law. After
the defendant in Monge had been convicted, the trial court judge enhanced
his sentence based on prior convictions and prison terms. Monge, 524 U.S.
at 725. The California Court of Appeal ruled that the evidence had been
insufficient to trigger the sentence enhancement because the prior
conviction allegations had not been proved beyond a reasonable doubt, and
that a remand for retrial on the sentence enhancement would violate double
jeopardy principles. Id. at 725-26. After the California Supreme Court
reversed the California Court of Appeal, the United States Supreme Court
affirmed the California high court and held that the Double Jeopardy Clause
did not preclude retrial on the prior conviction allegation. Id. at 734.
As such, Monge resolves in the State’s favor the issue presented in this
case.
Monge was decided before Apprendi v. New Jersey, 530 U.S. 466 (2000),
and contains a debate that foreshadows that momentous decision. In dissent
in Monge, Justice Scalia argued that the prior offense enhancement
constituted an element of the defendant’s offense and, therefore,
implicated Double Jeopardy principles. Monge, 524 U.S. at 740 (Scalia, J.,
dissenting). A majority of the Court rejected Justice Scalia’s argument,
both because the issue was not raised by the defendant and because the
argument was contrary to the Court’s then-controlling precedent on what
constituted “elements of an offense,” Almendarez-Torres v. United States,
523 U.S. 224 (1998). Monge, 524 U.S. at 728 (Almendarez-Torres, as well as
Monge, involved the question of whether the fact of prior conviction used
to support a recidivist enhancement constitutes as “element of an
offense.”). In 2000, the Supreme Court decided Apprendi, largely adopting
Justice Scalia’s views of what constitute elements of an offense as
expressed in his prior dissents in Monge and Alamendarez-Torres. Apprendi,
530 U.S. at 488-89 nn. 14 & 15. The question then, is whether Monge and
Almendarez-Torres were overruled by Apprendi or are distinguishable from
it.
Defendant contends that the practical effect of Apprendi was to
overrule Monge, because, according to his count, a majority of the members
of the Court have now taken positions contrary to its holding. The Court
of Appeals found Defendant’s argument to be “plausible” but refused to
speculate as to whether a majority of the Supreme Court would vote to
overturn Monge.[4] See Jaramillo v. State, 803 N.E.2d 243, 250 (Ind. Ct.
App. 2004). In point of fact, Apprendi discusses Monge without suggesting
that it is no longer good law. Apprendi, 530 U.S. at 488 n. 14. And last
year, the Court cited Monge in an opinion as standing for the proposition
that the “Double Jeopardy Clause does not preclude retrial on a prior
conviction used to support recidivist enhancement.” Dretke v. Haley, 124
S.Ct. 1847, 1853 (2004). Given that Apprendi exempts from its reach the
fact of a prior conviction, it makes sense that Monge, involving as it does
a fact of a prior conviction, would be distinguishable from Apprendi. See
Apprendi, 530 U.S. at 490 (concluding that “any fact that increases the
penalty for a crime beyond the prescribed statutory maximum, other than the
fact of a prior conviction, must be submitted to a jury and proved beyond a
reasonable doubt”) (emphasis added).
We hold that Monge is good law and permits the State to retry
Defendant.
II
Although Monge resolves the issue before us in the State’s favor, our
own precedents in this regard are such as to warrant additional discussion.
The general rule of sufficiency is that if a conviction is reversed on
appeal because the State failed to present sufficient evidence to support
the conviction beyond a reasonable doubt, the Double Jeopardy Clause
precludes retrial. Tibbs v. Florida, 457 U.S. 31, 41 (1982); Burks v.
United Sates, 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978).[5]
This Court has held on several occasions that, following a reversal on
appeal of a habitual offender enhancement on grounds of insufficient
evidence, the State is not permitted to retry the defendant on that
offense. Bell v. State, 622 N.E.2d 450, 456 (Ind. 1993); Powers v. State,
617 N.E.2d 545, 547 (Ind. 1993) (Dickson, J., concurring); Perkins v.
State, 542 N.E.2d 549 (Ind. 1989); Phillips v. State, 541 N.E.2d 925 (Ind.
1989). Monge holds to the contrary and overrules these four decisions (but
not the general rule that insufficiency of the evidence on any element
precludes retrial).
The history of this issue in our Court began with Durham v. State, 464
N.E.2d 321 (Ind. 1984), in which the defendant was initially convicted of
two underlying felonies but found not to be a habitual offender by a jury.
Durham, 464 N.E.2d at 323. Defendant filed a belated motion to correct
errors and the convictions were set aside. Id. The State then re-filed
charges on the two underlying counts as well as an amended habitual
offender count and obtained convictions. Id. On appeal, this Court held
that the defendant could be retried as a habitual offender even though the
jury during defendant’s first trial found that he was not. Id. at 324. At
that time, we reasoned that habitual criminality was a status for the
enhancement of punishment upon the conviction of an additional substantive
crime, was not a conviction of an additional crime, and was provided for
the purpose of more severely penalizing those persons whom prior sanctions
have failed to deter from committing felonies. Id. at 323-24.
In Perkins v. State, 542 N.E.2d 549 (Ind. 1989), we revisited this
issue and set aside our holding in Durham. After we reversed Defendant’s
habitual offender adjudication on grounds of insufficient evidence, the
State retried Defendant and a jury returned a verdict finding him to be a
habitual offender. Perkins, 542 N.E.2d at 550. Relying on the Supreme
Court’s holding in Lockhart v. Nelson, 488 U.S. 33 (1988), and citing its
holding in Burks v. United States, 437 U.S. 1 (1978), we concluded that
“because the Double Jeopardy Clause affords the defendant who obtains a
judgment of acquittal at the trial level absolute immunity from further
prosecution for the same offense it ought to do the same for the defendant
who obtains an appellate determination that the trial court should have
entered a judgment of acquittal.” Perkins, 542 N.E.2d at 551. In arriving
at our conclusion in Perkins, we explicitly overruled Durham. Id. at 552.
Perkins was later criticized by the Illinois Court of Appeals in
People v. Brooks, 559 N.E.2d 859 (Ill. Ct. App. 1990). In Brooks, the
defendant challenged the State’s ability to re-sentence him as a Class X
offender (an enhancement for prior convictions) under the Double Jeopardy
Clause in the event that the court found that the state had failed to
present sufficient evidence to sustain his initial conviction. Brooks, 559
N.E.2d at 860-61. The court reversed the defendant’s Class X offender
conviction but held that he could be re-sentenced on that charge. Id. at
869. The Illinois court found our reasoning in Durham to have been more
persuasive than Perkins. Id. at 866 n.3.
Conclusion
We now hold, in accordance with Monge, that the Double Jeopardy Clause
does not prevent the State from re-prosecuting a habitual offender
enhancement after conviction therefore has been reversed on appeal for
insufficient evidence.
We grant transfer pursuant to Indiana Appellate Rule 58(A), summarily
affirm the opinion of the Court of Appeals as to the issue discussed in
footnote three, and remand this case to the trial court.
Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J.,
concurs in result.
-----------------------
[1] Ind. Code § 9-30-5-5 (2004).
[2] Ind. Code § 35-50-2-10 (2004).
[3] Defendant also argued that the trial court had “erred in ordering
restitution without fixing the manner of performance.” Br. of Appellant-
Def. at 23. The Court of Appeals remanded with instructions on this issue.
Jaramillo v. State, 803 N.E.2d 243, 251 (Ind. Ct. App. 2004). Neither
Defendant nor the State challenge this determination on transfer. We
summarily affirm the decision of the Court of Appeals on this issue. Ind.
Appellate Rule 58(A)(2).
[4] Cf. Shepard v. United States, 2005 U.S. LEXIS 2205 (U.S. Mar. 7, 2005)
(Thomas, J., concurring), where Justice Thomas observes that “a majority of
the Court now recognizes that Almendarez-Torres was wrongly decided,”
counting the votes of four dissenters in Almendarez-Torres and himself.
(Justice Thomas was in the majority in Almendarez-Torres.) But he clearly
acknowledges that Almendarez-Torres is still good law until the Court
overrules it.
[5] Retrial following reversal for improperly admitted evidence does not
violate the Double Jeopardy Clause so long as all the evidence, even that
erroneously admitted, is sufficient to support the jury verdict. See,
e.g., Lockhart v. Nelson, 488 U.S. 33, 34 (1988) (holding that a defendant
who succeeds in having a conviction set aside because of trial error may be
retried for the same offense without violating the Double Jeopardy Clause
of the U.S. Constitution); Carpenter v. State, 786 N.E.2d 696, 705 (Ind.
2003); Stahl v. State, 686 N.E.2d 89, 94 (Ind. 1997); Everroad v. State,
590 N.E.2d 567, 571 (Ind. 1992); Perkins v. State, 542 N.E.2d 549, 551
(Ind. 1989). The Court of Appeals recently held to the contrary in Serrano
v. State, 808 N.E.2d 724 (Ind. Ct. App. 2004), transfer denied, 2004 Ind.
LEXIS 887. The opinion of the Court of Appeals in Serrano is disapproved.