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2007-1475. State v. Roberts, Slip Opinion No. 2008-Ohio-3835.
Hamilton App. No. C-060675. Judgment affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., concurs in judgment only.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-3835.pdf
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(Aug. 6, 2008) In a unanimous decision interpreting the “double jeopardy” clauses of the Ohio and U.S. constitutions, the Supreme Court of Ohio ruled today that when a defendant’s sentence is stayed on appeal, but the defendant is released from prison under the assumption that the sentence has been served, the defendant has no expectation of finality in that sentence for purposes of the double jeopardy clause. The Court’s opinion was authored by Justice Evelyn Lundberg Stratton.
The case involved Danny Wayne Roberts of Cincinnati, who was convicted on five counts of gross sexual imposition in 2004 and sentenced to eight years in prison.
Roberts appealed his sentence, arguing that the sentencing procedure followed by the judge in his case was contrary to the U.S. Supreme Court’s then-recent decision in Blakely v. Washington. On review, the 1st District Court of Appeals upheld Roberts’ claim of error and reduced his prison sentence to two years based on the court of appeals’ interpretation of Blakely. The state sought and was granted a stay of the 1st District’s order reducing Roberts’ sentence while the state pursued an appeal of that order in the Supreme Court of Ohio. The Supreme Court accepted the state’s appeal of Roberts’ sentence reduction (along with more than 100 others cases addressing similar issues) and held those cases pending its ruling in State v. Foster, in which the Court conducted an in-depth review of Ohio’s criminal sentencing statutes in light of the Blakely decision.
On Feb. 27, 2006, the Supreme Court of Ohio announced its decision in State v. Foster. In that decision, the Court severed (removed from the statute) parts of Ohio’s criminal sentencing law it found unconstitutional in light of Blakely, and held that all criminal sentences currently pending on direct appeal in Ohio courts should be remanded to the sentencing court for resentencing under the new guidelines set forth in Foster. In March 2006, despite the fact that the 1st District’s order reducing Roberts’ sentence to two years had been stayed, prison officials determined that he had completed his sentence and released him from prison on postrelease control.
In May 2006, when the trial court received an entry from the Supreme Court remanding Roberts’ case for resentencing, it determined that Roberts was no longer in prison, issued a warrant for his arrest, and resentenced him under the Foster guidelines. The new sentence imposed by the trial court under Foster was identical to its original sentence, an eight year prison term, less credit for the time Roberts had already served. Roberts appealed his new sentence to the 1st District, this time arguing that his reincarceration for the same offense after having been released from prison violated the constitutional protection against double jeopardy. The court of appeals affirmed Roberts’ sentence. Roberts then sought and was granted Supreme Court review of the 1st District’s ruling.
In today’s decision affirming the 1st District, Justice Stratton cited the U.S. Supreme Court’s holding in United States v. DiFrancesco (1980), that, whereas the constitutional protection against double jeopardy “unequivocally prohibits a second trial following an acquittal,” a criminal sentence “does not have the qualities of constitutional finality that attend an acquittal.”
“(T)he (DiFrancesco) court recognized that when the legislature has provided the government with a statutory right of appeal, ‘[t]he defendant ... is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired.’” wrote Justice Stratton.
“In sum, a defendant’s ‘legitimate expectations are not defeated if his sentence is increased on appeal any more than are the expectations of the defendant who is placed on parole or probation that is later revoked.’ ... Thus, the court determined that ‘the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase.’ The court also addressed whether the increase in the defendant’s sentence constituted multiple punishments under the Double Jeopardy Clause. The court concluded that because Congress provided the government a right to appeal the defendant’s sentence and the increased sentence was permitted by law, the prohibition against multiple punishments was not implicated. ... Thus, the court held that the government’s appeal that resulted in a longer sentence for the defendant did not run afoul of the Double Jeopardy Clause by subjecting the defendant either to multiple trials or to multiple punishments.”
In rejecting Roberts’ argument that his release from prison created a “legitimate expectation of finality” that would bar the state from reincarcerating him for the same offense, Justice Stratton cited the 1st District’s post-Foster ruling in a similar case, State v. Straugh (2006). She noted that in Straugh the 1st District upheld a defendant’s resentencing and reincarceration despite his release from prison while the state’s appeal of a sentence reduction was pending. “In affirming Straugh’s new sentence,” Justice Stratton wrote, “the court of appeals stated that ‘though this case presents the unusual circumstance of Straugh having been released after serving the sentence mandated by this court’s judgment, that circumstance was of no constitutional significance. In light of the state’s appeal, Straugh could claim no vested right to be released after serving only two years.’”
In addition, Justice Stratton wrote: “(W)e also conclude that the appellate court’s October 2005 stay should have tempered Robert’s expectation of finality in his sentence. ‘The effect of a stay pending review in a criminal appeal is preventive in nature. It preserves the status quo of the litigation pending appellate review and suspends the power of the lower court to issue execution of the judgment or sentence.’ (citation omitted). Thus, during the stay, the two-year sentence was suspended, and the original eight-year sentence was in effect. Moreover, a criminal defendant is charged with notice of a stay and has no reasonable expectation of finality regarding the sentence that is subject to the stay. ... Accordingly, we hold that when a defendant’s sentence is stayed on appeal, but the defendant is released from prison under the assumption that the sentence has been served, the defendant has no expectation of finality in that sentence for purposes of the Double Jeopardy Clause.”
Justice Stratton’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Justice Paul E. Pfeifer concurred in judgment only.
Contacts
Charles W. Isaly, 513.752.3451, for Danny Wayne Roberts.
Scott M. Heenan, 513.946.3227, for the state and Hamilton County prosecutor’s office.