A Deal Is a Deal: Plea Bargains and Double Jeopardy After Ohio v. Johnson

• Publication year: 2013

SEATTLE UNIVERSITY LAW REVIEWVolume 37, No. 1, Fall 2013

NOTE

A Deal Is a Deal: Plea Bargains and Double Jeopardy After Ohio v. Johnson

Philip Chinn

I. INTRODUCTION

On March 10, 2004, Pedro Cabrera made a statement that cost him fourteen years of his life: he proclaimed his innocence.(fn1) Mr. Cabrera pleaded guilty to one count of armed robbery in exchange for the dismissals of one count of armed robbery, two counts of aggravated unlawful restraint, two counts of burglary, as well as a recommended six year sentence.(fn2) The court accepted this plea and ordered a finding of guilty.(fn3) However, during an exchange that followed, Mr. Cabrera asserted that he was actually innocent but that he preferred "to take the time" instead of proceeding to trial.(fn4) The judge then refused to accept Mr. Cabrera's guilty plea, vacated the entry of the plea, and set the matter for trial in order to give Mr. Cabrera "a chance to prove [his] innocence."(fn5) Eventually, Mr. Cabrera was convicted of all counts at a bench trial and sentenced to twenty years.(fn6)

In 2010, Mr. Cabrera filed a habeas corpus petition in the United States District Court for the Northern District of Illinois, alleging that his conviction violated the Fifth Amendment prohibition on double jeopardy because his guilty plea had been vacated and he had been forced to stand trial.(fn7) In addressing his claim, the court noted a split among the circuits over "whether double jeopardy prevents a court from sua sponte vacating the plea and proceeding to trial."(fn8) Thus, Mr. Cabrera could not make the required showing that the state court proceedings "resulted in a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States."(fn9) Mr. Cabrera's petition was denied.(fn10)

The Double Jeopardy Clause provides that no person will "be subject for the same offence to be twice put in jeopardy of life or limb."(fn11) This protection has been applied to state proceedings through the Fourteenth Amendment as "a fundamental ideal in our constitutional heritage."(fn12) The District Court for the Northern District of Illinois correctly noted that the Supreme Court has not directly addressed the question of whether a court's decision to sua sponte vacate a defendant's guilty plea and proceed to trial violates double jeopardy protections.(fn13) Instead, there is a clear circuit split. Mr. Cabrera's case indicates that the current split over the constitutionality of a court accepting a guilty plea and then sua sponte vacating that plea, forcing the defendant to stand trial, has ramifications beyond trial courts: the uncertainty itself dooms habeas corpus petitions to fail.

The traditional rule, which generally understands jeopardy to attach at the point that a guilty plea has been accepted,(fn14) is the appropriate rule. Such a rule would prevent a court from sua sponte vacating an already-accepted guilty plea and forcing the defendant to stand trial, thereby depriving the defendant of the finality that comes with his guilty plea, and, if there was a plea bargain, depriving both the prosecution and defendant the benefits of their bargain.

Part II examines the underpinnings of the traditional Double Jeopardy rule. Part III analyzes the circuit split that developed in the wake of Ohio v. Johnson.(fn15) Part IV discusses and evaluates the policy justifications and implications for both the traditional rule and the new rule. Part IV also assesses whether jeopardy has attached based on an evaluation of the defendant's finality interest and the potential for prosecutorial overreaching. Part V provides a brief conclusion.

II. THE TRADITIONAL RULE

Under the traditional rule, jeopardy is understood to attach when a court accepts a guilty plea.(fn16) The justification for the traditional rule, perhaps most precisely stated by Justice Stevens, is that "[a] conviction based on a plea of guilty has the same legal effect as a conviction based on a jury's verdict."(fn17) Therefore, "[j]eopardy attaches with the acceptance of a guilty plea."(fn18) Because the Double Jeopardy Clause was "designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense,"(fn19) forcing a defendant to stand trial after being convicted by guilty plea is impermissible under this logic.

The court in United States v. Cruz(fn20) applied the traditional rule and declined to adopt an absolutist position "that jeopardy must attach automatically and irrevocably in all instances when a guilty plea is accepted."(fn21) The defendant had been indicted on charges related to cocaine distribution but accepted a plea bargain, which required him only to plead guilty to a misdemeanor charge of possessing cocaine.(fn22) The court unconditionally accepted the plea bargain but on the day of sentencing, rejected it based on its review of the pre-sentencing reports of the defendant and two co-defendants, who had also pleaded guilty.(fn23) After the original indictment was reinstated, the defendant filed an interlocutory appeal, arguing that the continued prosecution violated his protection against double jeopardy.(fn24)

The First Circuit attempted to balance judicial flexibility with the understanding "that jeopardy must attach somewhere and bar reconsideration at some point."(fn25) The court explicitly rejected the view that jeopardy only attached at the point of sentencing.(fn26) The court concluded that the preferable balance would be a holding that acceptance of a guilty plea causes jeopardy to attach but that the court could vacate the plea before sentencing if manifest necessity(fn27) was shown.(fn28)

The court's analysis in Cruz shows some consideration of the policies underlying the Double Jeopardy Clause. The court noted that "the ordeal of a [Federal Rules of Criminal Procedure] Rule 11 proceeding is significantly different from the ordeal of a trial," particularly when, as in Cruz, the plea was to a lesser included offense which "carries no implied acquittal of the greater offense."(fn29) Ultimately, the First Circuit found that jeopardy had attached in Cruz because under Federal Rule of Criminal Procedure 11 (Rule 11), a court may accept, reject, or defer a decision on a plea pending the court's review of a pre-sentence report.(fn30) Thus, the trial court's acceptance of the plea caused jeopardy to attach.(fn31)

In United States v. Patterson, the Ninth Circuit applied the traditional rule in a way that emphasized the importance of the discretion afforded trial courts under Rule 11.(fn32) In Patterson, the defendant pleaded guilty to one count of manufacturing marijuana, but the plea agreement did not specify the quantity of plants.(fn33) While the agreement originally provided for the quantity of plants to be determined at sentencing, an intervening Supreme Court case(fn34) called the validity of the plea into question. On the government's motion, the court vacated Mr. Patterson's plea; he was convicted at trial of manufacturing 100 or more marijuana plants, and sentenced to 188 months in prison and five years of supervised release.(fn35) The court remanded Mr. Patterson's case with orders to reinstate his guilty plea and sentence him accordingly.(fn36) In doing so, the court discussed the limits placed on trial courts by Rule 11.(fn37) It concluded that "[o]nce the court accepted the plea and deferred acceptance of the plea agreement . . . the court was not free to vacate the plea on the government's motion."(fn38) However, the court also noted that a defendant can move to have his guilty plea set aside and stand trial for the same offense without implicating double jeopardy concerns.(fn39)

Morris v. Reynolds,(fn40) which arose in the context of a habeas corpus petition, applies the traditional rule and provides a useful discussion of its development. In that case, petitioner Morris was indicted on two counts of criminal possession of a weapon: a felony third degree count and a misdemeanor fourth degree count.(fn41) The felony count was dismissed on June 4, 1994, because of the insufficiency of the grand jury's evidence.(fn42) Mr. Morris pleaded guilty to the misdemeanor charge on August 1, 1994, with the understanding that he would receive a probationary sentence, and the prosecution did not object.(fn43) In a rather confusing turn of events, the trial judge-who had dismissed the felony count due to the insufficiency of the grand jury's evidence-issued an order that appeared to have been backdated to July 29, 1994.(fn44) The order found that there was sufficient evidence to reinstate the felony count.(fn45) On October 21, 1994, when Mr. Morris was to be sentenced, the trial judge reinstated the felony count.(fn46) Mr. Morris then petitioned to set aside the reinstatement of the felony count and be sentenced in accordance with the plea deal for his guilty plea to the misdemeanor count.(fn47) Mr. Morris's petition was granted by the Appellate Division, but the New York Court of Appeals ultimately rejected his petition.(fn48) Mr. Morris then pleaded guilty to the felony count and received a sentence of two and a half to five years of incarceration.(fn49)

In granting Mr. Morris's petition, the Second Circuit held that "after a court accepts defendant's guilty plea to a lesser included offense, prosecution for the greater offense violates the Double Jeopardy...