                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1429
                             Filed October 15, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TREVON FOX,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      A defendant appeals his conviction for riot.             REVERSED AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold and

Dennis D. Hendrickson, Assistant Appellate Defenders, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, Joseph Williams, Student Legal Intern, Thomas J. Ferguson, County

Attorney, and Peter Blink, Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
                                          2


MCDONALD, J.

       This case presents the question of whether a criminal defendant can be

prosecuted for a greater offense after appearing for trial on a lesser-included

offense, pleading guilty to the lesser-included offense in the presence of and

without objection by the prosecutor, and being convicted and sentenced for the

same. We conclude, under the facts and circumstances of this case, the Double

Jeopardy Clause bars prosecution for the greater offense following conviction for

the lesser-included offense.

                                          I.

       On January 2, 2013, the State filed a complaint against Trevon Fox,

charging him with disorderly conduct, in violation of Iowa Code section 723.4(1)

(2011), in connection with a New Year’s Eve bar brawl. Fox pleaded not guilty to

the offense, and trial was set for March 28. On February 26, the State filed a trial

information charging Fox with criminal gang participation and riot, in violation of

Iowa Code sections 723A.2 and 723.1, arising out of the same incident. The

State concedes disorderly conduct is a lesser-included offense of riot.

       Fox and the prosecutor appeared for trial on the disorderly conduct charge

on the scheduled trial date. After the court informed Fox that he would not have

the assistance of appointed counsel for trial, Fox pleaded guilty to the charge of

disorderly conduct. The court convicted and sentenced Fox for that offense on

the same date. The record reflects the prosecutor appeared for trial and the plea

proceeding. There is no record of the prosecutor objecting to the guilty plea or

taking any other action of record to indicate the State would continue to pursue

prosecution for the greater offense of riot.
                                         3


       On May 2, 2013, Fox moved to dismiss the charges of gang participation

and riot on the ground the “Double Jeopardy Clause prohibits subsequent trial for

a greater offense after a conviction of a lesser-included offense.” The district

court overruled Fox’s motion. A jury found Fox guilty of riot and not guilty of the

gang participation charge, and the district court imposed sentence on the riot

charge. Fox filed this appeal, claiming the district court erred in denying his

motion to dismiss the riot charge.

                                         II.

       The Double Jeopardy Clause of the United States Constitution provides

no person shall “be subject for the same offense to be twice put in jeopardy of life

or limb.” U.S. Const. amend. V. This guarantee is applicable to state criminal

proceedings through the due process provision of the Fourteenth Amendment.

Benton v. Maryland, 395 U.S. 784, 794 (1969).

       The Double Jeopardy Clause affords the defendant three basic

protections. “It protects against a second prosecution for the same offense after

an acquittal. It protects against a second prosecution for the same offense after

conviction. And it protects against multiple punishments for the same offense.”

Ohio v. Johnson, 467 U.S. 493, 498 (1984). The greater offense is by definition

the same offense for purposes of double jeopardy as the lesser offenses

included within it. See Brown v. Ohio, 432 U.S. 161, 165-66 (1977). Thus,

“[w]hatever the sequence may be, the Fifth Amendment forbids successive

prosecution and cumulative punishment for a greater and lesser included

offense.” Id. at 169. This is true even where the prior conviction and sentence

are the result of a guilty plea. See id. Thus, in the absence of an exception to
                                          4

the general rule, Brown forbids the defendant’s conviction and sentence for riot

following his guilty plea to disorderly conduct.

       There are several recognized exceptions to the general rule prohibiting

successive prosecution for a greater and lesser-included offense.                “One

commonly recognized exception is when all the events necessary to the greater

crime have not taken place at the time the prosecution for the lesser is begun.”

Jeffers v. United States, 432 U.S. 137, 151 (1977). A second is where “the facts

necessary to the greater were not discovered despite the exercise of due

diligence before the first trial.” Id. at 152. A third exists where “the defendant

expressly asks for separate trials on the greater and the lesser offenses, or, in

connection with his opposition to trial together, fails to raise the issue that one

offense might be a lesser-included offense of the other.” Id. A fourth exception

was set forth in Ohio v. Johnson, 467 U.S. 493 (1984), State v. Franzen, 495

N.W.2d 714 (Iowa 1993), and State v. Trainer, 762 N.W.2d 155 (Iowa Ct. App.

2008). It is the nature and scope of this fourth exception that is in dispute.

       The State interprets Johnson, Franzen, and Trainer to stand for the

proposition that a defendant’s plea of guilty to and conviction of a lesser-included

offense, when the defendant has knowledge that a charge for a greater offense

has been filed, whether set forth in the same charging instrument or a different

charging instrument, does not bar successive prosecution for the greater offense.

The dissent interprets these cases to stand for the proposition that a defendant’s

plea of guilty to and conviction of a lesser-included offense after a charge has

been filed, whether set forth in the same charging instrument or a different

charging instrument, regardless of the defendant’s knowledge of the filed charge,
                                         5


does not bar prosecution for the greater offense.       Under the State and the

dissent’s interpretation, the focus of the inquiry is whether the State had filed a

charge for the greater offense prior to the time of plea and conviction. Although

both interpretations are reasonable, we conclude both interpretations ultimately

focus on the wrong issue.

       The critical issue in Johnson, Franzen, and Trainer was not that a charge

for the greater offense had been filed at the time of plea and conviction or that

the defendant knew a charge for the greater offense had been filed at the time of

plea and conviction; the critical issue was the defendant’s unilateral deprivation

of the State’s asserted interest in further prosecution through offensive use of the

Double Jeopardy Clause, either over the State’s objection or without the State’s

knowledge. See Johnson, 467 U.S. at 502 (“Notwithstanding the trial court’s

acceptance of respondent’s guilty pleas, respondent should not be entitled to use

the Double Jeopardy Clause as a sword to prevent the State from completing its

prosecution on the remaining charges.”); Trainer, 762 N.W.2d at 158 (stating the

defendant should not be allowed to “manipulate the proceedings . . . to use the

double jeopardy clause as a sword”). In Johnson, the defendant pleaded guilty

“[o]ver the State’s objection,” to lesser-included offenses contained in a single

indictment in an apparent attempt to preclude prosecution on the greater

offenses.   467 U.S. at 494.     The Supreme Court explicitly noted the “State

objected to disposing of any of the counts against respondent without a trial.” Id.

at 501. Franzen presented the same fact pattern as Johnson—the defendant

attempted to preclude continued prosecution of a single information by pleading

guilty to lesser-included offenses.   Franzen, 495 N.W.2d at 715.       In Trainer,
                                         6


“without notice to the State, Trainer withdrew her not guilty plea and pled guilty to

the lesser-included offense of trespass in what appeared to the State to be an

effort to avoid prosecution on the pending burglary charge.” 762 N.W.2d at 158.

We thus conclude Johnson, Franzen, and Trainer hold that a defendant cannot

use procedural wangling to unilaterally deprive “the State its right to one full and

fair opportunity to convict those who have violated its laws.”

       Our interpretation of Johnson, Franzen, and Trainer is more consistent

with our case law than the State and the dissent’s interpretation. For example, in

State v. Iowa District Court, 464 N.W.2d 233, 236 (Iowa 1990), the court denied

the defendant’s double jeopardy challenge where “the county attorney took no

part in, and in fact resisted, the guilty plea proceedings initiated by the

defendant.” Likewise, in State v. Randell, No. 08-1290, 2009 WL 1492781, at *3

(Iowa Ct. App. May 29, 2009), the court concluded the Double Jeopardy Clause

was no bar to second prosecution where the “State did not approve, have

knowledge, nor consent to the plea on the lesser offense” and the defendant

“pled guilty to the lesser offense in an attempt to thwart the State’s ongoing

prosecution of the greater offense.” Further, in Randell, our court discussed

Trainer and noted “the fact that the charges were brought in separate

proceedings was not dispositive, but rather the defendant was not allowed to use

the Double Jeopardy Clause as a sword.” Id. Indeed, for the last century, our

supreme court has recognized a defendant is prohibited from unilaterally

manipulating criminal proceedings: “The law has long been settled that if one

procures himself to be prosecuted for an offense in order to get off with slight

punishment . . . the judgment entered is void, and affords the accused no
                                         7

protection.”   State v. Bartlett, 164 N.W. 757, 758 (1917).     The Bartlett court

reasoned that “fraud practiced by the accused” should not result in a windfall for

the accused. Id. at 758.

       Our interpretation of Johnson, Franzen, and Trainer also more closely

relates to the defendant’s double jeopardy interests implicated by a second

prosecution following conviction. In that context, the double jeopardy interest

protected is “that the State with all its resources and power should not be allowed

to . . . subject [the defendant] to embarrassment, expense and ordeal” and

“compel[] him to live in a continuing state of anxiety and insecurity” through

repeated proceedings. Green v. United States, 355 U.S. 184, 187-88 (1957).

The existence or non-existence of a filed charge bears little relationship to the

interest actually at stake.   In contrast, the “offensive use exception” closely

relates to the interests at stake because it can be fairly said the defendant’s

interests are not impinged when it is the defendant’s procedural wangling that

necessitates a second prosecution to advance the State’s asserted interest in

prosecuting a greater offense. See Moore v. State, 882 N.E.2d 788, 793 (Ind. Ct.

App. 2008) (“Where the defendant has an active hand in arranging disposition of

the causes so he might benefit from the results, he waives any double jeopardy

claims.”).

       Further, the State and dissent’s interpretation—by making the existence or

non-existence of a filing central—fails to account fully for the State’s interest in

further prosecution. The State should not be precluded from further prosecution

merely because a defendant rushed to plead guilty to a lesser offense prior to the

State filing a charge for the greater offense. See United States v. Quinones, 906
                                        8


F.2d 924, 928 (2d Cir. 1990) (rejecting double jeopardy challenge where

defendant pleaded guilty prior to filing of superseding indictment on the ground

defendant “was nonetheless trying to use the Double Jeopardy Clause as a

sword by insisting on a right to plead guilty to the conspiracy and possession

counts in the face of the government objection”); State v. Kameroff, 171 P.3d

1160, 1163 (Alaska Ct. App. 2007) (rejecting double jeopardy challenge where

charges for greater offense were not yet filed but “the State also objected to

having [the defendant] enter a plea to the misdemeanor charges in an attempt to

preclude the State from proceeding on the felony charges”).          Consider the

circumstances of this case. If Fox had pleaded guilty to disorderly conduct on

the date of his arraignment, January 10, prior to the time the State had filed its

trial information charging riot on February 26, the State should not be barred from

continued prosecution solely because Fox had pleaded guilty prior to the time the

trial information had been filed.

       We hold a defendant’s plea to and conviction of a lesser-included offense

bars a second prosecution for a greater offense unless the defendant unilaterally

deprived the State of its asserted interest in pursuing further prosecution by

pleading guilty to the lesser offense (1) without the State’s knowledge or (2) over

the State’s objection. See 5 Wayne R. LaFave, Jerold H. Israel, Nancy J. King &

Orin S. Kerr, Criminal Procedure § 25.1(d), at 591-92 (3d ed. 2007) (“The

reasoning of [Ohio v.] Johnson probably also allows the government, by objecting

to a defendant’s guilty plea to a lesser offense, to defeat a defendant’s effort to

head off more serious charges that were not joined with the lesser offense at the

time to the plea . . . .”); B. John Burns, Iowa Criminal Procedure § 38.3, at 702
                                        9


(2006) (“Another circumstance permitting the government to charge a greater

offense after jeopardy has attached on a [lesser-included offense] occurs where

the defendant attempts to reap an unwarranted benefit of the Fifth Amendment

by entering a plea of guilty to a lesser offense without the consent of the

prosecution.”). In this case, the defendant appeared for trial on the disorderly

conduct charge with all of the anxiety and risk that entails. Upon being told that

he would not have appointed counsel to assist him with trial, the defendant

decided to plead guilty. The State was aware of the plea to and the sentence for

the disorderly conduct charge and took no action of record to protect its interest

in pursuing prosecution for the riot charge at the time of plea and sentencing.

Fox did not attempt to “reap an unwarranted benefit of the Fifth Amendment by

entering a plea of guilty to a lesser offense without the consent of the

prosecution.” Trainer, 762 N.W.2d at 159. The Fourth exception set forth in

Johnson, Franzen, and Trainer is thus not applicable here.        Accordingly, the

Double Jeopardy Clause bars the State from pursuing the second prosecution for

the greater offense of riot.

       It should be noted that while Fox did not attempt to reap an unwarranted

benefit, there is no doubt that he is in fact receiving such a benefit. The State’s

decision to charge the defendant in separate charging documents with separate

trial dates is “fraught with peril of just this result.” State v. Knaff, 713 N.E.2d

1112, 1115 (Ohio Ct. App. 3d 1998) (Painter, J., concurring). However, “[i]t is not

the defendant’s job to conduct the prosecution against him, and the [defendant]

had no duty to tell the court or the prosecutor of the [trial information] already

procured by the prosecution itself.” Id. The State could have changed this result
                                       10


by dismissing the disorderly conduct charge or otherwise preserving its right to

prosecute the greater offense. See Trainer, 762 N.W.2d at 159 n.4. Ultimately,

the State chose not to do so, and the risk of an adverse result must fall squarely

on the State.

                                       III.

      For the foregoing reasons, we reverse the defendant’s conviction, vacate

the defendant’s sentence, and remand for dismissal of the trial information

against him on the same.

      REVERSED AND REMANDED.
                                         11


VAITHESWARAN, P.J. (dissenting)

       I respectfully dissent. I would conclude double jeopardy principles did not

require dismissal of the riot count after Fox pled guilty to the lesser included

offense of disorderly conduct.

       I agree “the Fifth Amendment forbids successive prosecution and

cumulative punishment for a greater and lesser included offense.” See Brown v.

Ohio, 432 U.S. 161, 169 (1977).          But here we did not have successive

prosecutions; the State filed a trial information against Fox while the disorderly

conduct complaint was pending and before Fox pled guilty to that charge.             I

would contrast these facts from Brown, 432 U.S. at 162-63, where the State filed

additional charges only after Brown finished serving jail time on the originally filed

charge.

       The Court cited this distinction in Ohio v. Johnson, 467 U.S. 493, 502

(1984). According to the Court, Johnson—unlike Brown—was the subject of a

single indictment with “separate disposition of counts in the same indictment

where no more than one trial of the offenses charged was ever contemplated.”

Id. Under these circumstances, the Court said, Johnson “should not be entitled

to use the Double Jeopardy Clause as a sword to prevent the State from

completing its prosecution on the remaining charges.” Id.

       The Iowa Supreme Court reached the same conclusion in State v.

Franzen, 495 N.W.2d 714 (Iowa 1993). The court framed the issue as follows:

“Does a guilty plea to a lesser included offense in a multicount criminal

information raise a double jeopardy bar to prosecution on the greater offense?”

Franzen, 495 N.W.2d at 715. The court stated:
                                          12


       [T]the acceptance of a defendant’s guilty plea to one count of an
       information, that is a lesser offense of a second count, does not
       prevent the State from completing its prosecution on the remaining
       count. We hold the double jeopardy protection against subsequent
       or successive prosecution under the Fifth Amendment has no
       application under these circumstances.

Id. at 718.

       This brings me to State v. Trainer, 762 N.W.2d 155 (Iowa Ct. App. 2008),

which addressed the precise procedural posture we have here: offenses charged

in separate documents.      The State cited Trainer for trespass and separately

charged her with harassment and burglary. 762 N.W.2d at 156. Trainer pled

guilty to the misdemeanor trespass citation and had judgment and sentence

entered on the plea.      Id.   She later moved to dismiss the burglary charge,

asserting it was barred by double jeopardy principles. Id. at 157. The district

court granted the motion, finding trespass was a lesser included offense of

burglary. Id.

       This court reversed. Citing Johnson, the court concluded “the Double

Jeopardy Clause does not prevent the State from prosecuting the greater

offense.” Id. at 159. The court rejected Trainer’s attempt to distinguish Johnson

on the ground the offenses there were charged in a single document. Id. at 158-

59. The court stated,

       [s]ubsequent to Ohio v. Johnson, other courts have held that when
       a defendant pleads guilty to a lesser-included charged with the
       knowledge of a greater charge pending in a separate indictment or
       about to be filed in a separate indictment, the defendant was not
       allowed to use double jeopardy as a sword to avoid prosecution of
       the greater offense.

Id. at 159 (citations omitted). In my view, Trainer is controlling.
                                       13

      I recognize Trainer contained an element of defense deception that gave

teeth to the court’s admonition not to “use the double jeopardy clause as a

sword.” Id. at 158. Here, in contrast, there is no indication Fox pled guilty to

disorderly conduct as a strategic move to avoid prosecution on the greater riot

offense. But, while deception was alluded to in Trainer, I do not believe it was

necessary to the outcome. Trainer relied on Johnson, which made no mention of

deception. Instead, the Johnson Court’s focus was on “finality and prevention of

prosecutorial overreaching.” Johnson, 467 U.S. at 501. In the Court’s view,

where a defendant was not “exposed to conviction on the charges to which he

pleaded not guilty” and the State did not have “the opportunity to marshal its

evidence and resources more than once or to hone its presentation of its case

through a trial,” and where the defendant was not faced with the “implied

acquittal” implications of a jury verdict on lesser rather than greater offenses,

“[t]here simply has been none of the governmental overreaching that double

jeopardy is supposed to prevent.” Id. at 501-02.

      Like Johnson, Fox was not subjected to government overreaching. See

State v. Butler, 505 N.W.2d 806, 807 (Iowa 1993) (stating “[t]he constitutional

prohibition against double jeopardy is based on principles of finality and the

prevention of prosecutorial overreaching”); State v. Randell, No. 08-1290, 2009

WL 1492781, at *4 (Iowa Ct. App. May 29, 2009) (citing Johnson for proposition

that case did not involve “prosecutorial overreaching”). For this reason, I would

conclude the Double Jeopardy Clause did “not prohibit the State from

prosecuting” Fox for disorderly conduct and riot. Johnson, 467 U.S. at 500.
                                        14

       In reaching this conclusion, I have considered State v. Iowa District Court,

464 N.W.2d 233, 236 (Iowa 1990), and Randell, 2009 WL 1492781, at *4, cited

by the majority. I believe both are inapposite.

       In District Court, the court accepted a plea to a crime proposed by the

defendant and not set forth in the trial information. 464 N.W.2d at 236. The Iowa

Supreme Court concluded double jeopardy could not attach based on a plea the

court had no authority to accept. Id.; see also State v. Bartlett, 164 N.W. 757,

758 (Iowa 1917) (concluding judgment entered on a plea to a crime not charged

by the State was void and was “no obstacle to a subsequent prosecution by the

state”).   In Randell, double jeopardy attached to the greater offense before

Randell pled guilty to the lesser offense. 2009 WL 1492781, at *3. Accordingly,

the court found entry of judgment and sentence on the greater offense to be

entirely appropriate.

       I also am not persuaded by the majority’s reliance on Moore v. State, 882

N.E.2d 788, 793 (Ind. Ct. App. 2008). The defendant there did not deceive the

State or seek to deprive the State of its ability to prosecute remaining charges.

After a jury was impaneled, the defendant simply pled guilty to a lesser charge

and proceeded to trial on the remaining charges. Moore, 882 N.E.2d at 792. A

jury found him guilty. On appeal, the court found no double-jeopardy violation.

Id. at 793. Citing Johnson, the court stated “the Double Jeopardy Clause does

not prohibit the State from continuing its prosecution of a defendant on greater

charges when he had previously pled guilty to lesser-included charges.” Id. The

court specifically rejected the defense assertion that a State objection to the

guilty plea was a predicate to continuing a prosecution on the greater charges.
                                            15

Id. at 794 n.5. According to the court, the State would have had no reason to

object because the defense did not affirmatively raise a double-jeopardy concern.

Id. The same is true here. See also United States v. Schuster, 769 F.2d 337,

343 (6th Cir. 1985) (rejecting defense assertion that a State objection was

necessary to invoke the Johnson exception and stating “Johnson does not

emphasize the prosecution’s opposition to the plea, but the lack of a final

adjudication on the merits”); People v. Price, 867 N.E.2d 972, 977 (Ill. App. Ct.

2006) (rejecting attempt to distinguish Johnson based on absence of objection to

plea); 6 W. LaFave, J. Israel, N. King & O. Kerr, Criminal Procedure § 25.1(d), at

594 (3d ed. 2007).1

       For these reasons, I would affirm.




1
        In cases where there is no agreement to dismiss a pending greater
        charge in exchange for a guilty plea to a lesser charge and a court
        accepts a defendant’s plea to a lesser charge, without objection by the
        government, the single prosecution theory of Johnson supports the
        conclusion of most courts that the interests protected by the constitutional
        prohibition against successive prosecutions are not implicated if a judge
        either rejects the plea prior to sentencing or allows the government to
        continue its prosecution of the greater charge. As in Johnson, this
        scenario involves a prosecutor’s attempt to complete its prosecution of
        charges that were pending all along, where no trial has begun, and there
        is no risk of harassment or repeated attempts to prosecute.
6 W. LaFave, J. Israel, N. King & O. Kerr, Criminal Procedure § 25.1(d), at 594
(3d ed. 2007).
