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

“Why does double jeopardy not apply to the situation?”

Justice Donnelly, to the prosecutor

“There’s really not a double jeopardy issue here, is there? This is really a case about the plea, right?”

Justice DeWine, to defense counsel

On March 6, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Travis Soto, 2018-0416. At issue in the case is whether a defendant can be prosecuted a second time when, after a negotiated plea, that defendant has served and completed a prison sentence, yet confesses the true nature of the offense after he 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. At first, Soto told investigators that he was riding the ATV alone and accidentally ran over the child as he came around the corner of a building on the property. But later, Soto told investigators the boy was riding with him on the ATV, and had fallen off and was hit by the ATV.  After an examination, and the history she was given, the coroner concluded that the child’s injuries were consistent with Soto’s explanation of an ATV accident. 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. The trial court denied Soto’s motion, finding 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 a split decision, held that a subsequent prosecution was barred in these circumstances, both on double jeopardy grounds and because at the time of the plea, the state did not reserve the right to bring additional charges related to the boy’s death. The dissenting judge would find that the involuntary manslaughter charge was dismissed without prejudice before jeopardy had attached, and the state was free to pursue the murder charge based on new evidence.

Read the oral argument preview here.

Key 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.)

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. Dye, 2010-Ohio-5728 (“guilty plea itself creates the expectation that it will terminate criminal proceedings and that the defendant ‘[cannot] be called on to account further on any charges regarding th[e] incident.’”)

 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.)

Propositions of Law Accepted for Review

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.

At Oral Argument

Arguing Counsel

Gary L. Lammers, Putnam County Prosecuting Attorney, for Appellant State of Ohio

Carly M. Edelstein, Assistant State Public Defender, Office of Ohio Public Defender, Columbus, for Appellee Travis Soto

State’s Argument

The court of appeals erred in finding that under the facts of this case, the state is now barred as the result of a negotiated plea and on the principles of double jeopardy from prosecuting Mr. Soto for aggravated murder and murder with a felonious assault predicate.

Under the facts as we now know them, Mr. Soto knew at the time he entered into the plea bargain that he had been deceptive, and had committed other crimes. The rule of law is that the defendant has to have a reasonable belief that the plea agreement will end all prosecution, both current and potential. Under these circumstances, Mr. Soto could not have had any reasonable belief in the finality of the plea agreement. He couldn’t reasonably believe that would be the end of it, if the real evidence came out.  And while there was no reservation of rights by the state here, the state had no evidence to suggest this was an intentional act.

It’s the state’s position that an individual can’t commit a crime and then hide behind it. Mr. Soto knew at the time that he had committed a crime that was not even contemplated by the state. Only he knew that. When he knows he is avoiding detection by actively and covertly giving misinformation, evidence that takes the state down a rabbit hole, there can be no reasonable expectation of finality. Although a defendant has the right to remain silent and need not assist in the investigation against him, when a defendant chooses to tamper with evidence and proactively engages in fraud upon the investigators and the court, he should not be able to hide behind that subterfuge and avoid prosecution for a greater offense that subsequently comes to light.

Soto’s Argument

The state is asking the Court to upset an understanding of contract law protections by creating an exception to Carpenter. Carpenter places the burden on the state to reserve the right to bring additional charges. If this Court wants to create an exception, this is not the case to do it.

Back in 2006, Mr. Soto told two different stories, and at this point we have three different stories about what happened to Mr. Soto’s child. That should have raised alarm bells for the state. In 2006, the state chose to charge based on what it had uncovered, and entered into a plea agreement on that basis. Because of that, the defense believes there was a reasonable expectation of finality in the proceedings. The case law stemming from Carpenter backs that up. Carpenter and the cases that follow tell us that if the charges arise out of the same incident and the defendant has a reasonable expectation of finality in the plea agreement, then the state has to have reserved the right to bring additional charges; otherwise no greater charges can arise from that incident.

In a plea bargain, the defendant and the state are negotiating. They both recognize they are both bargaining away risk. In every case there should be an expectation on both sides that there will be misrepresentations.  Carpenter recognizes that risk and has imposed the burden on the state to reserve the right to bring additional charges.

Following Mr. Soto’s third story, the coroner’s report was presented to a child abuse specialist on the basis that the third version is what occurred in this case. That specialist confirmed that the injuries were more consistent with child abuse than with an ATV accident that could have occurred in 2006. But what we have here is the same confirmation bias that occurred in 2006. So, again, dealing with the Carpenter exception, this Court and other courts around the state have firmly place the burden of reserving the right to bring additional charges on the state. This is only fair because the state has far more advantages in its investigation and in knowing what’s occurring, and it presents an opportunity for the defendants to know they are on notice. While the plea itself is not in the record, the state has conceded that this was a negotiated guilty plea, which is what is necessary to do the Carpenter analysis. The cards were on the table to the extent that these two very inconsistent stories should have raised red flags for the state. Carpenter doesn’t just involve assessing the severity of a victim’s injuries, and determining whether there might be a death following those charges. It has been applied in other contexts.

 As far as the contract concept of fraud in the inducement, the defense has not found any cases that would apply in this circumstance. There was a choice by the state to indict on the basis of two different stories, and then a negotiation began based on that indictment. There should be a cut-off at that point.

What Was On Their Minds

Is This Really About Double Jeopardy?

Why are we even talking about Blockburger and double jeopardy, asked Justice DeWine?  How was the defendant once put in jeopardy for the manslaughter charge that was dismissed? Jeopardy never attached to that charge, did it? Is there any case in Ohio that has ever found that jeopardy attaches simply because a charge is filed? Wouldn’t we have to make up brand new law to find that? There are cases directly on point that say jeopardy does not attach, he added.

He wasn’t charged with a murder or any variation of a murder, so he’s never been in jeopardy for murder or any variation of murder, asked Chief Justice O’Connor?  Or did he plead not guilty to involuntary manslaughter and then as a result of the plea the charge was dropped, followed Justice Donnelly?

Is it the defense position that because dismissing the homicide charge was part of the plea agreement, it is still double jeopardy in the fact that it was considered for purposes of his penalty, asked Justice Stewart?

The Various Versions of What Happened Plus Some Hypotheticals

When the case was initially investigated, Mr. Soto gave 2 different versions of what allegedly took place to cause the victim’s death, noted Justice Donnelly, who said he wanted to be sure he had the facts straight. So right there was reason to give investigators question about his credibility.  When the state goes ahead after the investigators have done their job, and presents to the grand jury, and issues charges for involuntary manslaughter and for child endangerment, and the defendant enters a plea of not guilty, doesn’t the judge who is assigned the job to resolve that dispute have the right to interpret that as “we are accusing you and we are prepared to prove the truth of these charges beyond a reasonable doubt?”  What if the third version of what the state now believes is the truth didn’t come from Soto himself? What if after he served his 5 year sentence, a neighbor no one knew about or could have found came forward and said, “I’ve been living with this for 5 years—I was there, I looked through the window, I saw the way this child died and I want to tell you the truth.” Would the state be able to prosecute him then? Later, he commented that in every negotiated plea bargain, the defendant is getting the benefit of finality for whatever actually really happened.

The Plea Bargain

In this case, instead of going forward at trial, there was a plea bargain, noted Justice Donnelly.  The benefit that Mr. Soto got was the dropping of the one charge in exchange for a plea, he did his 5 years, and then he has a crisis of conscience, he comes out after prison and gives a third version of the event.  Why does double jeopardy not apply to the situation? Is there a distinction between pleading to a charge and getting a negotiated benefit?

What if the defendant just categorically denied doing it, but was going to enter into this plea to resolve this matter—I don’t think anyone would say that the state could retry him, commented Justice DeWine, adding that he was struggling with the fact that criminal defendants tell stories all the time that aren’t true, and regardless of that they end up entering into pleas. But usually we don’t allow the state to unwind the plea and take another shot at it if they get better evidence, he said, adding that he was trying to figure out how to draw a line with this case and those cases. One of the challenges in this case is that there is really nothing in the record about the plea, he noted. Whose burden is it to present that information? It was the defendant’s motion to dismiss on double jeopardy grounds, so is it the defense burden to come forward with what happened at the plea?

Did the state ever say in this plea bargain, that we will never prosecute you again, asked Chief Justice O’Connor? While there was no reservation of the right to bring additional charges by the state, was there an affirmative statement, that if you do this, you’re home clean? From the time he murdered the child until the time he was released from prison, the defendant knew there was a potential that additional information, evidence would come about.

Fraud in the Inducement

In Ohio often you get out of a contract by proving fraud in the inducement, commented Justice Fischer.  Would that apply?

In order to believe there is fraud in the inducement, noted Justice Donnelly, you have to believe that the third version of what Mr. Soto told is the truth, right? Is it based solely on his confession allegedly from a crisis of conscience, or did he give details that were corroborated by his now third version of the events?

Expectation of Finality 

Should Mr. Soto have an expectation of finality with regard to everything regarding this case, asked Justice Stewart? Why wouldn’t he, in this situation? She chided the prosecutor a bit, saying that he seemed to suggest that every criminal defendant with whom the state enters into a plea bargain is absolutely forthcoming, is not deceptive in any way, and keeps no information from the state. The state’s argument lies with he can’t expect there to be finality when he tampers with evidence and commits a crime never contemplated by the state. Later, she asked defense counsel whether Mr. Soto could have a reasonable expectation of finality when he brings about facts that are clearly contrary to what he told law enforcement initially and that deviate from the whole basis of the plea agreement? It might be different if someone else comes forward, she said, but when the defendant himself comes forward with evidence or information that is so contrary to what his original plea bargain was based on, should there still be the expectation of finality?

Had he pled to involuntary manslaughter and then confessed six years down the road, he couldn’t have been prosecuted at that point, could he, asked Chief Justice O’Connor, commenting the defendant would have been better off had he done that.

Carpenter

Was there a reservation of rights by the state in this case, asked Justice Stewart? (answer:no) Does it matter, from a legal analysis standpoint?

In Carpenter, the cards were on the table, Chief Justice O’Connor commented. The victim was assaulted and in danger of death. That was not unexpected. We don’t have that here. So when, in Carpenter the state bargained away the right to preserve a prosecution, they had the information to enter into that contract. Here, the cards weren’t on the table for a contract, as the defense characterizes this. Also, in Carpenter there was an acknowledgement by the prosecution that it fell through the cracks, that they lacked diligence in how they prosecuted this case and how they entered into an agreement. Does the defense really want to use that case as a predicate here?

How It Looks From The Bleachers

To Professor Emerita Bettman

Like a win for the defense, although I don’t think all the justices are on the same page as to why. Some seemed to think double jeopardy is implicated here.  Justice DeWine clearly does not.  Justices Donnelly and Stewart in particular homed in on Soto’s expectation of finality in the negotiated plea. The fact that Soto told two different versions of what happened at the time, the fact that the state did not reserve the right to bring additional charges, the fact that the justices recognize that defendants may not necessarily be truthful during the plea bargaining process, and as Ms. Edelstein argued, the fact that Carpenter has been applied in other contexts than the facts of that case, should tip the balance to the defense, although I wouldn’t expect a dramatic new rule of law here.  But this is by no means a walk in the park for Soto, as the justices were clearly troubled by what happened, the Chief especially so. The case was very well argued by both counsel, and the bench was very hot.

To Student Contributor Paul Taske

This argument was certainly the most interesting, articulate, and compelling thing I have seen before the Court in a long time. This, of course, makes it interesting to watch but difficult to call.

The Court appeared to have a clear divide. Chief Justice O’Connor and Justice DeWine appeared more interested in whether Soto’s initial plea deal meant that jeopardy attached to the dropped charge. Whereas Justices Donnelley and Stewart were more concerned with whether Soto’s expectation of finality was “reasonable.” However, even Justice DeWine, who seemed most sympathetic to the State’s argument, appeared unsure of how to craft a rule in this case that would establish a meaningful distinction between this truly bizarre confluence of events and other questions of jeopardy and attachment.

It is the uncertainty in DeWine’s own approach that ultimately sways my prediction that Soto will win this case. I certainly think the opinion will be divided. However, I think the unease, given voice by Justice DeWine, is likely present in the other justices as well. This unease, I think, will shape the court’s opinion by fostering caution in its approach and that it will not seek to fashion a new rule around Double Jeopardy protection.