“Because Soto entered his guilty plea prior to the empaneling of a jury or the taking of evidence, jeopardy attached—but only as to the child-endangering charge to which he pleaded guilty and not as to the dismissed involuntary-manslaughter charge.”

Justice DeWine, Majority opinion

“Under the majority’s conclusion, no plea bargain is necessarily conclusive and any plea agreement can be negated with new information. To accept this position is to declare that a plea agreement is not worth the paper it is journalized on.”

Justice Donnelly, Dissenting opinion

On October 31, 2019, the Supreme Court of Ohio handed down a merit decision in State v. Soto, 2019-Ohio-4430. In a 6-1 opinion written by Justice DeWine, in which Justice Stewart concurred in judgment only and Justice Donnelly dissented, the court held that because jeopardy never attached to the involuntary manslaughter charge in this case which was dismissed as part of a plea bargain, the double jeopardy prohibition did not prevent prosecuting Soto for murder or aggravated murder. The case was argued March 6, 2019.

Case Background

In 2006, Travis Soto’s two-year-old son Julio was killed. Soto gave law enforcement two different versions of what happened. 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, had fallen off, and was hit by the ATV. The coroner’s office performed an autopsy and concluded that Julio’s injuries were consistent with an ATV accident.

Soto was charged with child endangering and involuntary manslaughter. Soto negotiated a plea in which he pled guilty to child endangering and in exchange the involuntary manslaughter charge was dismissed. Soto served a five-year prison sentence.

In 2016, several years after the completion of his sentence, Soto went to the Putnam County Sheriff’s Office and confessed that he had actually beaten his son to death and had staged the ATV accident. The 2006 autopsy report and photographs were reviewed by a pediatric-abuse specialist, who concluded that Julio’s injuries were consistent with Soto’s newest story.

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 double-jeopardy protection did not bar Soto’s prosecution for murder and aggravated murder because involuntary manslaughter with a child-endangering predicate is not the same offense as murder with a felonious-assault predicate. Soto appealed.

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 charges based on new evidence.

Read the oral argument preview of the case here and an analysis of the argument 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.)

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.)

Santobello v. New York, 404 U.S. 257 (1971) (A plea may bar further prosecutions apart from double jeopardy. Based on contract law principles, if the plea rests on a promise made by the prosecutor, the promise must be fulfilled.)

United States v. Soto-Alvarez, 958 F.2d 473 (1^st Cir. 1992) (Jeopardy does not attach to charges that are dismissed and “on which no finding of guilty is made.”)

State v. Gustafson, 76 Ohio St.3d 425 (1996) (Double jeopardy prevents three wrongs from occurring: “(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.”)

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.’”)

C.K. v. State, 2015-Ohio-3421 (A charge dismissal is not equivalent to an acquittal and does not prevent further prosecution for the defense under double jeopardy.)

State’s Propositions of Law Accepted for Review

Proposition 1

Involuntary Manslaughter with a child endangering predicate in violation of R.C. 2903.04 (A) is not the same offense for double jeopardy purposes as Aggravated Murder in violation of R.C. 2901.01(C) or Murder with a Felonious Assault predicate in violation of R.C. 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.

Does the Court Adopt the State’s Propositions of Law?

The court agrees that the first is a correct statement of the law, but notes that Soto did not argue otherwise, and doesn’t decide the case on this basis, does not really discuss the second, and dismisses the third as improvidently accepted.

Merit Decision

Analysis

Majority Opinion

The double jeopardy protections of the U.S. and Ohio Constitutions, which the court continues to treat as coextensive, protect against three distinct wrongs: a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.

Where the Appeals Court Majority Went Wrong

The court of appeals found that the first protection of the double jeopardy clauses was violated—protecting against a second prosecution for the same offense following an acquittal. But a dismissal is not equivalent to an acquittal.

Double jeopardy attaches only to charges to which the defendant pleads guilty, not to charges dismissed under a plea agreement.  For charges to which the defendant did not plead guilty, jeopardy does not attach until the jury is empaneled, or when the judge starts taking evidence in a bench trial. Soto did plead guilty before the empaneling of a jury or the taking of evidence, but only as to the child-endangering charge, not the dismissed involuntary manslaughter charge.

“Because Soto was never put in jeopardy for the dismissed 2006 involuntary-manslaughter charge, the Double Jeopardy Clauses do not bar his subsequent prosecution for murder and aggravated murder,” wrote DeWine.

The majority also notes that Soto has not argued that child endangering constitutes the same offense as murder and aggravated murder, and agrees with the state that they are not. Each of the murder offenses contains an element not found in child endangering, and child endangering contains an element not found in the murder offenses.  So, the Double Jeopardy Clauses do not protect Soto from prosecution for murder and aggravated murder.

State’s Third Proposition of Law is Dismissed

This proposed proposition of law is based on contract-law principles, not on the Double Jeopardy clauses.  But Soto never raised a claim based on the contents of his plea agreement.  He seeks relief solely on double jeopardy grounds.  So, the court dismisses this proposition of law as improvidently accepted.

The majority makes clear that it expresses no opinion about whether Soto’s plea agreement might have served as a bar to the murder charges, because Soto did not raise this argument in the trial court.  The court also notes that the plea agreement itself was never made part of the record.

Bottom Line

The court of appeals is reversed, and the case is remanded to the trial court for further proceedings.

Justice Donnelly’s Dissent

Justice Donnelly sees the issue in the case differently than the majority does.  He sees it as whether the constitutional prohibitions against double jeopardy bar the murder charges when the lesser included offense of involuntary manslaughter was dismissed as part of a negotiated plea bargain and would hold that they do.

Soto’s Criminal Case is Resolved by his Guilty Plea

Donnelly agrees with the majority that jeopardy attaches when a jury is empaneled and sworn or when the court begins to take evidence in a bench trial, but considers this  irrelevant in this case. A guilty plea waives a jury trial and eliminates the taking of evidence at a bench trial. So, to Donnelly, in this case, jeopardy attached when the trial court unconditionally accepted Soto’s guilty plea.

Before the plea agreement, Soto risked convictions for both involuntary manslaughter and child endangering. Under the plea deal, the state agreed to drop the involuntary-manslaughter charge in exchange for Soto’s plea of guilty to child endangering. Had that charge not been dropped Soto faced the risk of being found guilty on the involuntary-manslaughter charge. So, in accepting Soto’s plea, the trial court conclusively determined his criminal culpability for the purposes of double jeopardy. The dismissal was simultaneously exchanged for the guilty plea.

The State Should be Stuck with the Bargain it Made

When this case was investigated in the first place, Soto told two different versions of what happened to his son. That should have raised some red flags for the state about his credibility. The state didn’t have to rely on Soto’s questionable version of the facts, but could and should have done its own due diligence.

Soto was indicted on two counts: involuntary manslaughter and child endangering. He pled not guilty to both and had the right to have the state prove both. Instead, the parties chose a negotiated plea agreement. In doing that, the state gave up the chance to prosecute Soto for involuntary manslaughter or any murder-related offense with the same elements.

Effect of the Plea Agreement

“When Soto’s plea was unconditionally accepted, a record was thereby created that then became the ‘truth’ regarding the crime Soto committed resulting in the death of his son,” wrote Donnelly, who noted that “when a defendant enters into a plea agreement with the state, both sides intend that it fully resolve the matter… Soto received the benefit of having the involuntary-manslaughter charge dropped. The state did not reserve any right to bring new charges (citation omitted). Although the bargain reached in a plea agreement may not (and often does not) reflect a defendant’s actual culpability, it does reflect a mutually agreed resolution.”

Bottom Line to Donnelly

The court of appeals majority got it right. Because the 2006 plea agreement disposed of the involuntary manslaughter charges against him, Soto cannot be prosecuted for murder or aggravated murder.

Concluding Observations

Both student contributor Paul Taske and I missed on this one. One thing that was very clear during oral argument was Justice DeWine’s hostility to Soto’s position, and the fact that Justice Donnelly seemed to be focused on Soto’s expectation of finality in the negotiated plea. I thought Justice Stewart was, too, but in the end, she concurred in judgment only with the majority opinion. I also noted that “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.” In the majority opinion, Justice DeWine noted that Soto did not “raise a claim related to the content of his plea agreement in the trial court.”  He probably should have.

I do want to call special attention to footnote one of the majority opinion. Justice DeWine took the trouble of noting that the court has, in the past, treated the double jeopardy protections in the Fifth Amendment and Article I, Section 10 of the Ohio Constitution as coextensive, adding, “because neither party has presented a contrary argument, we have no opportunity to revisit that determination today.”  A number of the justices, in particular, Justices DeWine, French, Fischer, and Chief Justice O’Connor, and Sixth Circuit Court of Appeals Judge Jeff Sutton have talked about their interest in the Ohio Constitution as a document of independent force, providing greater protections in some areas of rights than the federal constitution. In October, Justices Fischer and French participated in an Ohio State Bar Association webinar on this subject. And in his concurrence in judgment only in Cleveland v. State, Slip Opinion No. 2019-Ohio-3820, Justice DeWine did a thorough historical and textual analysis of Article II Section 34 of the Ohio Constitution. Lawyers take heed—make more independent arguments under the Ohio Constitution. The invitation to do so is clearly out there.