[Cite as Cleveland v. Jones, 2017-Ohio-7320.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104965
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
TROUSSAINT JONES
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2013 TRC 034882
BEFORE: Boyle, J., E.A. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: August 24, 2017
ATTORNEYS FOR APPELLANT
Mark Stanton
Cuyahoga County Public Defender
BY: David Martin King
John T. Martin
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Director of Law
BY: Bridget E. Hopp
Assistant City Prosecutor
City of Cleveland
1200 Ontario Street
Justice Center, 8th Floor
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Troussaint Jones, appeals from a judgment of the
Cleveland Municipal Court denying his motion to dismiss charges pending against him on
the grounds that any further proceeding would violate the double jeopardy protections
guaranteed to him by the United States and Ohio Constitutions. He raises one
assignment of error for our review:
The trial court erred and violated Troussaint Jones’s state and federal
constitutional protections against double jeopardy when it denied Jones’s
motion to dismiss and permitted the city to subject Troussaint Jones to a
second prosecution for the same offenses to which he pled no contest three
years earlier.
{¶2} For the reasons that follow, we agree with Jones that any further criminal
prosecution in this matter offends the principles of double jeopardy. Accordingly, we
reverse the trial court’s judgment and remand with instructions. I. Procedural History
and Factual Background
{¶3} On the afternoon of June 15, 2013, Ohio State Highway Patrol Trooper
Jason Turner pulled Jones over after observing him swerve across marked lanes.
Noticing signs of impairment in Jones, Trooper Turner attempted to conduct field sobriety
tests but was unable to proceed due to Jones’s combativeness. The trooper cited Jones
with violating four state laws: R.C. 4511.19(A)(1)(a) (driving while intoxicated) and
(A)(2) (driving while intoxicated with a prior OVI within the past 20 years and refusal to
submit to chemical tests), 4510.037(J) (driving with a 12-point suspended license), and
4511.33 (driving over “marked lanes”).
{¶4} The case proceeded through a series of pretrials that eventually ended in
Jones’s defense attorney entering a plea of no contest for Jones to the charges. The
court, sua sponte and over the city prosecutor’s objection, amended the OVI violation of
R.C. 4511.19(A)(1)(a) to a violation of Cleveland Codified Ordinances (“CCO”) 433.011,
which prohibits a person from being in physical control of a vehicle while impaired.
Further, the court found Jones not guilty of OVI in violation of R.C. 4511.19(A)(2), but
found him guilty of driving under a suspended license (“DUS”) and driving over marked
lanes (“marked lanes”).
{¶5} The court sentenced Jones to pay a fine and spend 60 days in jail with 55
days suspended. The court further ordered Jones to attend programs and meetings
related to drug and alcohol abuse, and placed him on one year of active probation. Jones
completed his sentence as ordered.
{¶6} The city sought and obtained leave from this court to appeal the trial court’s
decision. On appeal, the city raised one assignment of error: that the trial court abused
its discretion by reducing a charge of OVI to physical control over the prosecutor’s
objection. In a plurality opinion, this court agreed. With two concurrences and one
dissent, the court’s controlling opinion reversed Jones’s physical control conviction and
remanded the cause to the trial court. See Cleveland v. Jones, 8th Dist. Cuyahoga No.
100598, 2014-Ohio-4201.
{¶7} Immediately after we released our decision, Jones filed motions for
reconsideration and for en banc review, primarily arguing that any remand would violate
double jeopardy and that the panel’s decision was in conflict with other decisions of this
court. We denied both motions in succession. Much like the opinion in the direct
appeal, the motion for reconsideration showed a split in reasoning among the judges, with
the same judges concurring, although for separate reasons, and one dissenting.
{¶8} Further, in the journal entry denying en banc consideration, 11 of the 12
appellate judges on this court agreed that the decision on direct appeal had no majority
opinion in light of the fact that each panel member performed a different analysis of the
issues and reached different conclusions. We also noted that the decision contained “no
consensus about the basis of the court’s jurisdiction or whether double jeopardy would
bar further prosecution,” and was, therefore, not in conflict with other decisions of the
court. All three judges on the panel in the direct appeal concurred with the majority
opinion and analysis in the en banc denial.
{¶9} The Ohio Supreme Court accepted jurisdiction on further appeal by Jones,
set a briefing schedule on the issue of whether the court had jurisdiction to accept the
appeal, and held oral arguments on the case. But before issuing an opinion, the Supreme
Court, sua sponte, dismissed the appeal as having been improvidently accepted. In
doing so, the court stated that “the opinion of the court of appeals may not be cited as
authority except by the parties inter se.” Cleveland v. Jones, 146 Ohio St.3d 218,
2016-Ohio-2914, 54 N.E.3d 1215, ¶ 2.
{¶10} After the Supreme Court dismissed Jones’s appeal, the case returned to the
Cleveland Municipal Court by way of this court’s original remand order. Once there,
the case was reassigned to a different judge after the original trial judge recused herself
from the case. Jones promptly filed a motion to dismiss the charges on the grounds that
they violated double jeopardy. The trial court’s denial of that motion is the subject of
the present appeal.
II. Double Jeopardy Analysis
{¶11} The denial of a motion to dismiss on double jeopardy grounds is a final
appealable order subject to immediate appellate review. State v. Anderson, 138 Ohio
St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 26. Appellate courts review the denial of a
motion to dismiss on the grounds of double jeopardy de novo. State v. Morris, 132 Ohio
St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16.
{¶12} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, and Article I, Section 10 of the Ohio Constitution protect a defendant from
being twice put in jeopardy for the same offense. In re A.G., 148 Ohio St.3d 118,
2016-Ohio-3306, 69 N.E.3d 646, ¶ 8. As the United States and Ohio Supreme Courts
acknowledge:
[T]he Double Jeopardy Clause protects against three abuses: (1) “a second
prosecution for the same offense after acquittal,”(2) “a second prosecution
for the same offense after conviction,” and (3) “multiple punishments for
the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.
2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v.
Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).
In re A.G. at ¶ 8, citing State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892.
{¶13} Whether a further prosecution violates the principles of double jeopardy
depends on whether jeopardy attached in the prior proceeding. “Jeopardy ‘attaches,’ so
as to preclude subsequent criminal proceedings, at different points in time depending on
the nature of the proceeding in question.” State v. Gustafson, 76 Ohio St.3d 425, 435,
668 N.E.2d 435 (1996).
{¶14} Where a trial court “exercises its discretion to accept a no contest plea,” a
defendant is placed in jeopardy at that moment. State ex rel. Sawyer v. O’Connor, 54
Ohio St.2d 380, 382, 377 N.E.2d 494 (1978); see also State ex rel. Leis v. Gusweiler, 65
Ohio St.2d 60, 418 N.E.2d 397 (1981). This is true “irrespective of whether, in arriving
at that determination, the trial court grossly abused its discretion or erroneously” applied
“the law or facts in arriving at its verdict.” Sawyer at 382-383.
{¶15} Jones contends that another prosecution in this case would violate the
Double Jeopardy Clause’s protection against successive prosecutions because he was
“acquitted on some charges, convicted and sentenced on others, and served his entire
sentence.” He maintains that “[t]he instant case violates all three components of the
Double Jeopardy Clause.” We agree.
{¶16} It is important to note that this decision, as well as the decision on direct
appeal, can and should have no effect whatsoever on Jones’s DUS and marked lanes
convictions, or on his acquittal of OVI in violation of R.C. 4511.19(A)(2). On direct
appeal, the state did not raise any assignments of error with regard to the acquittal and
convictions on those counts. Accordingly, this court’s remand order only applied to the
OVI charge in violation of R.C. 4511.19(A)(1)(a). Any attempt to reprosecute the other
charges is, without question, a violation of Jones’s rights under the Double Jeopardy
Clause because jeopardy attached to those unappealed verdicts. Accordingly, to the
extent that they are still pending on the charging document, those charges must be
dismissed.
{¶17} With regard to the improperly amended OVI charge — double jeopardy bars
further prosecution as well. The record reflects that Jones, by and through his attorney,
entered a “no contest” plea to all of the charges contained in the original indictment.
The court did not amend the charge until after taking the plea and hearing the facts, at
which point the court found him guilty of the amended charge of physical control. By
amending the charge, the court implicitly found Jones not guilty of OVI in violation of
R.C. 4511.19(A)(1)(a), a fact also reflected by the court’s express acquittal of Jones on
the OVI in violation of R.C. 4511.19(A)(2), which penalizes having a prior OVI within
the previous 20 years. The court would have necessarily found it difficult to acquit on
R.C. 4511.19(A)(2), if it had not first acquitted on the R.C. 4511.19(A)(1)(a) — a
predicate offense to a finding of guilt under (A)(2). Accordingly, double jeopardy
attached by way of acquittal on OVI in violation of R.C. 4511.19(A)(1)(a).
{¶18} We recognize that at first glace our rationale may appear to be in conflict
with the controlling and concurring opinions in our decision in Jones, 8th Dist. Cuyahoga
No. 100598, 2014-Ohio-4201. But it is not.
{¶19} The controlling and concurring opinions on direct appeal show no consensus
among the panel as to why the physical control conviction should be reversed and the
cause remanded, and there was also no consensus on whether double jeopardy would bar
further prosecution. This is a fact that the panel members themselves acknowledged in
the denial of en banc consideration. Although the panel’s controlling opinion noted that
the trial court’s noncompliance with Traf.R. 10 rendered Jones’s plea “infirm,” this was
only one of multiple considerations leading to the ultimate conclusion that the court had
abused its discretion by amending an OVI to physical control. See id. at ¶ 37. Only the
concurring opinion found the plea and subsequent verdict “void” for noncompliance with
Traf.R. 10. To put it simply, the only thing that the lead opinion and the concurring
opinion agreed on, was the result that the judgment of the trial court should be reversed.
{¶20} Accordingly, we reverse the decision of the trial court denying Jones’s
motion to dismiss the charge. On remand, the trial court is instructed to dismiss the
charge and further correct its journal entry on the finding of guilt on the physical control
charge. This correction should reflect the panel’s decision on direct appeal that was to
reverse the conviction. Further, the trial court must enter an acquittal on the OVI charge
in violation of R.C. 4511.19(A)(1)(a) to reflect the original trial judge’s acquittal on that
count.
{¶21} The judgment is reversed and remanded with instructions to follow the
directives of this decision.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR