Update: On October 31, 2019, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument here. 

On March 6, 2019, the Supreme Court of Ohio will hear oral argument in the case State of Ohio v. Travis Soto, 2018-0416. At issue in the case is whether the Double Jeopardy Clause of the Fifth Amendment bars successive prosecution when a defendant has served and completed a prison sentence yet confesses the true nature of the offense after he or she is released.

Case Background

In January of 2006, Travis Soto’s two-year-old son was killed. Soto told law enforcement officials that his son was accidentally struck while Soto was driving his all-terrain vehicle (“ATV”) and died as a result. After an examination, the coroner concluded that the child’s injuries were consistent with Soto’s explanation. Soto was charged with child endangerment and involuntary manslaughter. Soto negotiated a plea in which he pled guilty to child endangerment and in exchange the involuntary manslaughter charge was dismissed. Soto served a five-year sentence.

In July of 2016, several years after the completion of his sentence, Soto voluntarily approached the Putnam County Sheriff’s Office and confessed that he had actually beaten his son to death and had staged the ATV accident scene in 2006. In August of 2016, Soto was indicted for aggravated murder, murder, felonious assault, kidnapping, and tampering with evidence. Soto filed a motion to dismiss on double jeopardy grounds. Judge Keith Schierloh of the Putnam County Court of Common Pleas denied Soto’s motion. Judge Schierloh found that because felonious assault, kidnapping, and tampering with evidence all require proof of an element not required by the original prosecution of child endangerment, Soto could not reasonably believe that his plea, based on a false narrative, would bar future prosecutions.

On appeal, the Third District, in 2-1 opinion authored by Judge Shaw and joined by Judge Willamowski, reversed the decision of the trial court. The Third District found that the primary inquiry for double jeopardy issues is whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars additional punishment and successive prosecutions. Both the United States Supreme Court and the Supreme Court of Ohio have held that the government is barred from bringing an additional prosecution for a greater offense when a defendant has already been convicted of a lesser included offense. While Soto was not convicted of involuntary manslaughter, he was in jeopardy of being tried and convicted for involuntary manslaughter but for the plea agreement he negotiated. Involuntary manslaughter is, as the Supreme Court of Ohio recognizes, a lesser included offense of aggravated murder and murder.  In addition, at the time of the plea, the state did not reserve the right to bring additional charges related to the boy’s death. Therefore, subsequent prosecution is barred in these circumstances.

Judge Zimmerman dissented. He contends that the involuntary manslaughter charge was dismissed before jeopardy had attached.. When the state nolled the involuntary manslaughter charge, it did so without prejudice, and may therefore re-indict Soto if new evidence is presented. Here, Soto was only punished for endangering his son, not for murdering him. Without the attachment of jeopardy, the state is free to pursue Soto’s conviction for murder. Therefore, the decision of the trial court should be affirmed.

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices DeWine, Fischer, French, and O’Donnell

No: Justices DeGenaro and Kennedy

Key Statutes and Precedent

United States Constitution, Amendment V (“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . .”)

Ohio Constitution Article I, Section 10 (No person shall be twice put in jeopardy for the same offense.)

R.C. 2903.11 (Felonious Assault)(No person shall knowingly cause serious physical harm to another or another’s unborn; or cause or attempt to cause physical harm to another or another’s unborn by means of a deadly weapon or dangerous ordnance.)

R.C. 2903.01 (Aggravated Murder)

(C) No person shall purposely cause the death of another who is under thirteen years of age at the time of the commission of the offense.)

R.C. 2903.02 (Murder)(No person shall purposely cause the death of another…)

R.C. 2903.04 (Involuntary Manslaughter)(No person shall cause the death of another… as a proximate result of the offender’s committing or attempting to commit a felony.)

Blockburger v. United States, 284 U.S. 299 (1932) (The Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes unless each statute requires proof of a fact which the other does not.)

Jeffers v. United States, 432 U.S. 137 (1977) (When a defendant requests separate trials for a greater and lesser-included offense the Double Jeopardy Clause is not implicated.)

Brown v. Ohio, 432 U.S. 161 (1977) (Once a defendant has been convicted of a lesser-included offense he or she may not be tried for a greater one arising from the same factual scenario under the Double Jeopardy Clause.)

State v. Thomas, 61 Ohio St.2d 254 (1980) (The state may be able to proceed with additional charges if, at the time of the first trial, additional facts to sustain a second charge had not occurred or were not discoverable despite the exercise of due diligence.)

Ohio v. Johnson, 467 U.S. 493 (1984)(The dismissal of one count in the indictment at the time of a defendant’s plea is not an “implied acquittal” on the dismissed offense.)

State v. Tolbert, 60 Ohio St.3d 89 (1991) (Lesser-included offenses are considered the same offense as the greater offense for purposes of the Double Jeopardy Clause and Blockburger test.)

State v. Carpenter, 68 Ohio st.3d 59 (1993) (When the state accepts a negotiated plea and expressly fails to reserve the right to bring additional charges upon the development of new information, the State is precluded from later indicting the defendant on a more serious charge.)

State v. Lynch, 2003-Ohio-2284 (Involuntary manslaughter is a lesser-included offense for murder and aggravated murder

State v. Resor, 2010-Ohio-397 (6th Dist.) (Double jeopardy hinges on the identical nature of the different causes of actions brought by the state, not on factual evidence submitted to the jury. Even slight variations in the causes of action will circumvent a double jeopardy claim.)

State’s Argument

The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, after conviction, and against multiple punishments for the same offense. In Soto’s case, the only protection at issue is the second, and the issue is whether Soto may rightfully be prosecuted for aggravated murder and murder after he was convicted of child endangerment. To determine whether a defendant is being successively prosecuted for the same offense, a court conducts the “same elements” test. This test prohibits successive prosecutions unless each statute requires proof of a fact which the other does not. This is because the Double Jeopardy Clause does not prohibit successive prosecutions; rather, the Double Jeopardy Clause prohibits successive prosecution for the same offense.

Soto was convicted, sentenced, and placed on post-release control for the plea-bargained for offense of child endangerment. As part of the plea bargain, the involuntary manslaughter charge was dismissed. Several years after the completion of his sentence, Soto voluntarily confessed that he intentionally punched and killed his son. Soto was then indicted for aggravated murder, murder, and other crimes in light of this new confession.

Under Blockburger, the elements of child endangerment under R.C. 2919.22(A) and (E)(1)(c) must be compared with aggravated murder under R.C. 2903.01(C). This section of aggravated murder requires the victim to be under the age of thirteen and a “purposefully” mens rea. Child endangerment requires that the offender be a parent, or equivalent, and has to violate a duty of care, protection or support. Therefore, under Blockburger, the Double Jeopardy Clause does not prohibit a successive prosecution for aggravated murder in this case.

The Third District’s insistence that the Blockburger analysis must include the dismissed charge of involuntary manslaughter is erroneous. As the United States Supreme Court recognized, jeopardy does not attach to charges dismissed prior to the empaneling of a jury. To treat a nolled charge as the functional equivalent of an acquittal is similarly improper. Nevertheless, even if involuntary manslaughter is considered under Blockburger, the successive prosecution for aggravated murder is permissible, because each offense contains an element not contained in the other. As a result, it is clear that the Third District erred in deciding that the new charges of aggravated murder and murder were barred by double jeopardy.

There is, however, a due diligence exception to the Blockburger test. Courts recognize that where a fact necessary to the commission of one offense occurs after the defendant has been convicted of another offense and could not have been discovered earlier even after due diligence, multiple prosecutions are not barred by the Double Jeopardy Clause. In this case, the facts necessary to support the 2016 Grand Jury indictment could not have been discovered despite the exercise of due diligence until Soto appeared and confessed to the actual details of his son’s death. In 2006, the State relied on Soto’s original version of what happened when conducting its investigation. The state performed its due diligence at the time, which is verifiable and vouched for in the 2016 medical report. The false narrative provided by Soto led to a false medical diagnosis. As such, the facts necessary to support this subsequent prosecution were not discoverable until July 2016 despite the exercise of due diligence.

Finally, Ohio courts recognize negotiated pleas as a bar to successive prosecution if the defendant would reasonably believe that his or her plea would bar further prosecution for a greater or lesser offense related to the same factual scenario. Soto cannot be said to have a reasonable belief that his plea would bar further prosecution because he entered the plea agreement in bad faith and purposefully deceived the State to receive a more lenient bargain. Soto intentionally concealed information, staged the scene to look like an ATV accident, and fabricated a false narrative. In light of these facts, Soto could have no reasonable belief that his 2006 plea would bar further prosecution when the true nature of the incident transforms it from one of accidental death to purposeful homicide. Accordingly, the State requests that the decision of the Third District be reversed.

Soto’s Argument

Negotiated plea agreements are governed by contract law and focus on the reasonable expectations of the defendant. A negotiated plea bars successive prosecutions where the defendant reasonably believes that the plea would preclude further prosecutions for any offense arising from the same factual scenario. The Supreme Court of Ohio recognizes that entering into a plea agreement is what creates the reasonable expectation that criminal proceedings related to the incident will cease.  Ohio courts have detailed some exceptions to this general rule. These exceptions provide a roadmap for determining whether a reasonable expectation exists: (1) the defendant’s charges have to arise out of the same incident, and the defendant’s actions must have occurred in the same jurisdiction; (2) additional charges cannot already be pending against the defendant at the time of the plea agreement; (3) the court and the State must have had jurisdiction over all of the charges; and (4) the negotiated plea agreement must have resolved all of the indicted charges, and the State must have failed to reserve the right to bring additional charges arising out of the incident. In Soto’s case, all these requirements are satisfied. All actions related to this case occurred at the same time and jurisdiction, there were no additional charges pending against Soto, the court and the State had jurisdiction over all charges, and the plea agreement resolved all charge for which Soto was indicted. Therefore, successive prosecution is prohibited.

The arguments posed by Amicus are without merit. Amicus argues that successive prosecutions are not barred if the defendant’s own actions brought about the successive prosecution. This misreads Jeffers v. United States, in which the U.S. Supreme Court simply stated that the Double Jeopardy Clause is not implicated when a defendant urges a court to try two aspects of a case arising from the same factual scenario separately. Second, Amicus’ contention that affirming the decision of the Third District would undermine the prosecution’s future willingness to enter into plea agreements for anything less than the indicted charges is misplaced.  Even if Soto pleaded to both indicted charges the same problem would have arisen, because of the state’s failure to exercise due diligence in its investigation of Soto’s initial account of what happened. Finding that subsequent prosecutions are prohibited in this case would not have any adverse effect on the prosecution’s willingness to enter into meaningful plea negotiations.

The State waived its right to argue the jeopardy-attachment issue. The Third District presumed that jeopardy had attached because the issue was not raised before it. The State failed to raise the attachment issue in the appeals court or in its memorandum in support of jurisdiction. Therefore, the only issue properly before this court is whether, under the Blockburger test, involuntary manslaughter is the “same offense” as murder and aggravated murder under the Double Jeopardy Clause. Under Blockburger, courts must determine whether each offense contains an element not contained in the other; if not, the Double Jeopardy Clause bars additional prosecution and punishment. This Court has clearly stated that involuntary manslaughter is a lesser included offense of felony murder and aggravated murder. Involuntary manslaughter is subsumed by the greater offenses and, therefore, is considered the “same offense” for double jeopardy purposes.

While there is an exception to the Double Jeopardy Clause, known as the due diligence exception, that exception does not apply in this case. The due diligence exception permits the state to bring a successive prosecution if it can be shown that a fact was not readily available to the prosecution after the State conducted due diligence. In Soto’s case all relevant facts were readily available to the State in 2006 when Soto committed his crime. The only reason the State failed to obtain all relevant facts during its first prosecution was because it failed to conduct a thorough investigation. Soto’s subsequent confession is not sufficient to qualify as a fact not available at the time of trial. Further, the State simply relied on Soto’s statements despite their inconsistencies. The State could have easily investigated those inconsistencies by interviewing Soto’s child’s mother, Soto’s neighbors, performing a forensic examination of the interior or exterior of the ATV. If the State were permitted to bring a successive prosecution despite these failures of due diligence, it would unjustly reward the State for shoddy investigative work. Therefore, the decision of the Third District should be affirmed.

State’s Proposed Propositions of Law

Proposition 1: Involuntary Manslaughter with a child endangering predicate in violation of ORC 2903.04(A) is not the same offense for double jeopardy purposes as Aggravated Murder in violation of ORC 2901.01(C) or Murder with a Felonious Assault predicate in violation of ORC 2903.02(B) under the Blockburger “same offense” test.

Proposition 2: Additional facts necessary to sustain a new charge that have not been discovered despite the exercise of due diligence acts as an exception to Blockburger to allow subsequent prosecution.

Proposition 3: A negotiated plea does not bar successive prosecutions where the defendant would not reasonably believe that his or her plea would bar further prosecutions for any greater offense related to the same factual scenario.

Amicus in Support of the State

The Cuyahoga County Prosecutor’s Office filed a brief in support of the State. Its legal arguments closely mirror those offered by the State. Amicus contends that the dismissal of the involuntary manslaughter charge in 2006 was a procedural dismissal and, therefore, not an acquittal for double jeopardy purposes. Further, jeopardy does not attach to a charge which is dismissed prior to the empaneling of a jury. Because the involuntary manslaughter charge was not dismissed with prejudice by the State, the State is free to seek a conviction on that charge at a later date. Finally, Soto had no reasonable expectation that his 2006 plea would end future litigation. Soto’s plea was based on falsehoods which were revealed after Soto made a subsequent confession. This independent action on Soto’s part, which constitutes a fraud on the court, clearly eliminated any reasonable expectation of finality by Soto. This, combined with the State’s exercise of due diligence, permits the State to seek a successive prosecution.

Student Contributor: Paul Taske