                                                  RENDERED: MARCH 17, 2016
                                                         TO BE PUBLISHED

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                              2015-SC-000437-MR


MICHAEL A. DUNN                                                       APPELLANT


                 ON APPEAL FROM COURT OF APPEALS
V.                      2014-CA-001966-OA
              MONTGOMERY CIRCUIT COURT NO. 08-CR-00226


HONORABLE BETH LEWIS MAZE
(JUDGE, MONTGOMERY CIRCUIT
COURT)                                                                 APPELLEE

AND

COMMONWEALTH OF KENTUCKY                             REAL PARTY IN INTEREST


                OPINION OF THE COURT BY JUSTICE NOBLE

                        REVERSING AND REMANDING

      The Appellant, Michael A. Dunn, was previously prosecuted for seven

identically worded counts of first-degree sodomy. He was acquitted on two of

those counts, and convicted of the other five. His convictions were later

vacated, and a new trial was ordered. On remand to the trial court, Dunn

claimed his re-prosecution was barred by double jeopardy. The trial court

denied his claim. The Court of Appeals declined to grant a writ of prohibition

barring the impending retrial. A new trial on the vacated counts, however,

raises a substantial risk that Dunn will be tried for crimes for which he has
already been acquitted, thereby violating his double-jeopardy rights. For that

reason, the order of the Court of Appeals denying Dunn's petition for a writ of

prohibition is reversed.

                                   I. Background

      In 2008, Dunn was charged with seven counts of first-degree sodomy

with a minor. All seven counts of the indictment read identically. At trial, the

minor described five instances of anal sodomy in detail, including the

approximate time and circumstances surrounding the events. The minor also

testified that Dunn forced him to perform oral sex twice, though there appears

to have been less detail about those events. Though there was ample testimony

that would have allowed the jury to distinguish between the various incidents,

at least as to the anal sodomies, the jury instructions on all seven counts were

worded identically. The jury found Dunn guilty of five counts (counts 1 to 4,

and count 7) and not guilty of two counts (counts 5 and 6). He was sentenced

to fifty years in prison.

      Dunn appealed to this Court. See Dunn v. Commonwealth, 360 S.W.3d

751 (Ky. 2012). He raised several issues but did not complain that the jury

instructions failed to factually differentiate between the counts, despite clear

law holding such failure to be reversible error. See Miller v. Commonwealth, 283

S.W.3d 690, 695 (Ky. 2009) ("[I]t is now settled that a trial court errs in a case

involving multiple charges if its instructions to the jury fail to factually

differentiate between the separate offenses according to the evidence."). The

closest he came to this issue was in complaining that the trial court erred in

failing to order a bill of particulars, and that he was misled about which
                                          2
incidents were included in the indictment and was thereby deprived of proper

notice of the charges. Dunn, 360 S.W.3d at 760. This Court affirmed his

convictions.

      Nine months after this Court affirmed, Dunn filed a pro se motion under

Criminal Rule 11.42 collaterally attacking his conviction. He raised numerous

issues, including that his trial counsel had been ineffective by failing to object

to the identically worded jury instructions. The trial court denied the motion.

      The Court of Appeals vacated Dunn's convictions and remanded for a

new trial. The court's opinion in that case was very short, as the

Commonwealth conceded both that Dunn's counsel had been ineffective, given

that instructions like those used in his case are palpable error under Miller,

and that Dunn was entitled to a new trial. See Dunn v. Commonwealth, 2013-

CA-000222-MR, 2014 WL 1155474, at *1 (Ky. App. Mar. 21, 2014)

(unpublished opinion).

      On remand, Dunn moved to dismiss the indictment, claiming that his

right to a speedy trial was being violated and that retrial would violate the bar

on double jeopardy. The circuit court denied his motions. As to the double-

jeopardy claim, the court concluded that retrial was not barred because his

convictions had been vacated for instructional errors and remanded for a new

trial, with no appellate finding of insufficiency of the evidence. Interestingly, the

court ordered retrial on all seven counts, even the two of which Dunn had been

acquitted by the jury. Dunn moved the court to reconsider its order, but the

motion was denied.



                                          3
      Dunn then filed a petition for a writ of prohibition in the Court of Appeals

seeking to bar his retrial. He again claimed that his right to a speedy trial and

the prohibition on double jeopardy would be violated by retrial. The Court of

Appeals granted the writ as to the two counts for which Dunn had been

acquitted, but denied the writ otherwise. As to the other five counts,

convictions for which had been vacated, the court concluded Dunn had not

shown that he lacked an adequate remedy by appeal, as required for the

remedy of a writ to even be available. (The court followed this conclusion by

stating: "Nothing prevents Dunn from taking an appeal from the circuit court's

order denying any motions to suppress evidence should he be convicted of any

offenses on retrial." This statement is curious because Dunn has not raised, at

this time, any complaint that evidence should have been suppressed.) The

court did not specifically address how Dunn had an adequate remedy by

appeal for his speedy-trial and double-jeopardy claims.

      Dunn now appeals to this Court as a matter of right. See CR 76.36(7)(a)

("An appeal may be taken to the Supreme Court as a matter of right from a

judgment or final order in any proceeding originating in the Court of Appeals.");

Ky. Const. § 115 ("In all cases, civil and criminal, there shall be allowed as a

matter of right at least one appeal to another court ...."). He has not asked this

Court for intermediate relief under Civil Rule 76.36(4), though it appears that

the circuit court has continued the underlying case while this appeal is

pending. The Commonwealth did not cross-appeal that portion of the Court of

Appeals' order barring retrial of the two counts of which Dunn was acquitted,

and has indicated its assent to that part of the opinion.
                                         4
                                    II. Analysis

      Although Dunn has raised two issues, that his right to a speedy trial has

been violated and that his right against double jeopardy will be violated by

retrial, we address only the latter because it is dispositive of his case. Dunn's

double jeopardy argument is that because he was acquitted on two of the seven

identically worded counts, he may not be retried on the remaining five counts.

His claim is, in essence, that because the counts were identically worded, we

cannot know whether the counts to be retried are ones that have already

resulted in an acquittal. Kentucky has not addressed this issue, though it has

hinted that identically worded "carbon copy" jury instructions contain a

double-jeopardy problem. See Miller v. Commonwealth, 283 S.W.3d 690, 695

(Ky. 2009) (noting that the issue with such instructions may be "viewed as one

of ... double jeopardy," among others (quoting Miller v. Commonwealth, 77

S.W.3d 566, 576 (Ky. 2002))). Other jurisdictions, however, have consistently

concluded that under such circumstances, "nothing would preclude a new jury

from convicting [the defendant] for alleged incidents for which he already has

been acquitted," and that would "constitute double jeopardy." State v. Heaven,

110 P.3d 835, 838 (Wash. 2005).

      But this is not a typical appeal where we can jump immediately to the

merits of an appellant's claims. It is, instead, the appeal of a denial of a petition

for a writ of prohibition.. Generally speaking, cases in which a writ of

prohibition or mandamus is sought proceed in two steps. Collins v. Braden,

384 S.W.3d 154, 158 (Ky. 2012). First, the court must look at whether such an

extraordinary remedy is even available, before deciding the merits of the
                                          5
claimed legal error. Id. Second, if the court finds that the remedy is available, it

may then look at the merits of the claimed error. Id. And if the trial court has

erred or is about to err, the court may issue the writ. Id. Thus, we must first

examine whether the remedy is even available.

   A. Remedy by way of a writ is available to vindicate a claimed violation
      of the Double Jeopardy Clause's bar on successive prosecutions.

      In deciding whether the remedy is available, this Court has divided writ

cases into "two classes ..., one addressing claims that the lower court is

proceeding without subject matter jurisdiction and one addressing claims of

mere legal error." Id. at 158. Dunn has not made a claim under the first class,

and thus we address only the second.

      Under the second class, a writ may be granted—that is, the remedy is

available—if "there exists no adequate remedy by appeal or otherwise and great

injustice and irreparable injury will result if the petition is not granted."

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Of the two prerequisites for

this class of writ, the first is mandatory, and thus Dunn is required to prove

that he has no adequate remedy by appeal. Marcum v. Scorsone, 457 S.W.3d

710, 716 (Ky. 2015).

      The Court of Appeals held that Dunn had an adequate remedy by appeal,

concluding that any double-jeopardy claim could be addressed by an appeal if

he were again convicted. In so concluding, the Court of Appeals acted in

accordance with our cases stating that double-jeopardy questions generally

may be remedied by appeal, and thus whether to examine a double-jeopardy
issue in a writ action is wholly discretionary. See, e.g., St. Clair v. Castlen, 381

S.W.3d 306, 309 (Ky. 2012); St. Clair v. Roark, 10 S.W.3d 482, 485 (Ky. 1999).

      This blanket approach to double jeopardy, however, ignores that double-

jeopardy questions arise in two distinct categories: those where a defendant is

prosecuted for multiple   crimes   arising from the same conduct, and those where

the defendant is prosecuted a second time (after either a conviction or an

acquittal). These categories reflect the fact that the Double Jeopardy Clause

both protects "against ... the actual imposition of two punishments for the

same offense" and "protects a criminal defendant from being twice put in

jeopardy for such punishment." Witte v. United States, 515 U.S. 389, 396

(1995); see also United States v. Central Liquor Co., 628 F.2d 1264, 1266 (10th

Cir. 1980) ("The right not to be tried more than once and the right not to

receive multiple convictions and punishments for the same offense are both

protected by the double jeopardy clause, but they are conceptually distinct

rights."). This latter protection is perhaps best described as protection against

successive prosecutions.

      Our adequate-remedy cases apply in the context of a case in which a

defendant is being prosecuted in a single proceeding for multiple crimes arising

from one course of conduct and is thus subject to multiple punishments. The

double-jeopardy question in such a case is resolved under Blockburger v.

United States, 284 U.S. 299, 304 (1932). An appellate court should not

intercede while such a case is ongoing because the doubling of jeopardy does

not occur until the defendant is doubly punished. And any error in that context

can be corrected on appeal. See Abney v. United States, 431 U.S. 651, 660
                                          7
(1977) (noting that the protection against double punishment "can be fully

vindicated on an appeal following final judgment").

      Those cases, however, do not apply where the defendant complains of a

second (or third or fourth) prosecution. Such cases implicate the Double

Jeopardy Clause's second protection, namely, protection against "the risk that

an accused for a second time will be convicted of the 'same offense' for which

he was initially tried." Id. at 661 (quoting Price v. Georgia, 398 U.S. 323, 326

(1970)). This protection is "a guarantee against being twice put to trial for the

same offense." Id.; see also Blackledge v. Perry, 417 U.S. 21, 31 (1974) (noting

that "the Double Jeopardy Clause is distinctive ... [because] 'its practical result

is to prevent a trial from taking place at all"' (quoting Robinson v. Neil, 409 U.S.

505, 509 (1973)). In other words, it is the second trial that is forbidden,

assuming that the second trial would, in fact, result in double jeopardy.

Indeed, it is for this reason that the federal courts allow an immediate appeal of

a district court's order rejecting a successive-prosecution double-jeopardy

claim and ordering a defendant to be tried a second time. Abney, 431 U.S. at

661. This is necessary because "these aspects of the guarantee's protections

would be lost if the accused were forced to 'run the gauntlet' a second time

before an appeal could be taken." Id. Thus, a post-trial appeal is inherently

inadequate to protect this aspect of the double-jeopardy protection because

"even if the accused is acquitted, or, if convicted, has his conviction ultimately

reversed on double jeopardy grounds, he has still been forced to endure a trial

that the Double Jeopardy Clause was designed to prohibit." Id.



                                         8
       Some of our cases have acknowledged this limit and have suggested that

a successive-prosecution double-jeopardy claim satisfies the inadequate-

remedy requirement. For example, the seminal writ case Hoskins v. Maricle

notes: "we have found the right of appeal inadequate when the petition of a

criminal defendant seeks to prohibit a proceeding allegedly barred by the

constitutional proscription against double jeopardy." 150 S.W.3d at 19; see

also Radford v. Lovelace, 212 S.W.3d 72, 78 (Ky. 2006), overruled on other

grounds by Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009) (finding no

adequate remedy by appeal where defendant claimed second trial was barred

by double jeopardy). 1

       At the very least, then, our cases have treated this question

inconsistently, often without even acknowledging the other line of cases. Today

we resolve this conflict. Although the remedy of a writ remains discretionary

with the reviewing court, there is not an adequate remedy by appeal where a

defendant contends that double jeopardy would bar a second trial following

either an acquittal or conviction. This, however, is not to say that all such

claims will be meritorious; rather, it is to say only that the requirement of no

adequate remedy by appeal is shown. The point is that a reviewing court must

exercise its discretion not willfully, but soundly, when there is no adequate

remedy by appeal.




       1Ironically, Hoskins cites St. Clair v. Roark for this point, despite the fact that
that case specifically concluded that a court could decline to review a writ petition "on
grounds that there is an adequate remedy by appeal." St. Clair v. Roark, 10 S.W.3d
482, 485 (Ky. 1999).
                                             9
      The second writ prerequisite, of great injustice and irreparable injury, is

more readily disposed of. A meritorious claim that double jeopardy bars retrial

satisfies the requirement of great injustice and irreparable injury. See Radford,

212 S.W.3d at 79 (noting that irreparable injury turned on merits of the

double-jeopardy claim). This seems obvious given that the constitutional

protection against double jeopardy is one of our most basic freedoms against

governmental overreach and is a fundamental aspect of our justice system.

And the unique nature of the protection—against the trial itself—proves that

any violation of the right—by having a second trial—is irreparable.

      That said, even if the purported violation would not result in irreparable

harm, a writ would still be available. The irreparable-harm requirement "may

be put aside in 'certain special cases.'" Grange Mut. Ins. Co. v. Trude, 151

S.W.3d 803, 808 (Ky. 2004) (quoting Bender v. Eaton, 343 S.W.2d 799, 801

(Ky. 1961)). That limited sub-class of cases consists of those in which "a

substantial miscarriage of justice will result if the lower court is proceeding

erroneously, and correction of the error is necessary and appropriate in the

interest of orderly judicial administration." Id. (quoting Bender, 343 S.W.3d at

801). A second trial in violation of the bar on double jeopardy "would constitute

a miscarriage of justice and would disrupt the orderly administration of

justice." Hoskins, 150 S.W.3d at 20. And thus, successive-prosecution claims

also meet the special-cases exception.




                                         10
   B. Dunn did not waive his double jeopardy claim by failing to raise it in
      state collateral attack under Criminal Rule 11.42, nor by seeking to
      have his convictions vacated.

      Having concluded that the remedy of a writ is available, we would

normally turn next to the merits of the claim. But the Commonwealth has also

raised the claim that Dunn is barred from pursuing his double-jeopardy claim

because he failed to raise it in his 11.42 action, or, barring that, because he

successfully attacked his convictions.

      The Commonwealth's claim is based on the holding in Johnson v.

Commonwealth, 450 S.W.3d 707 (Ky. 2014). In that case, we held that a trial

court is bound by an appellate court's mandate on remand and has no power

to act in a manner inconsistent with it. Id. at 710-11. We also held that the

process for reviewing a criminal judgment, both on direct appeal and in

collateral attacks, is a complete system, and that "[a]t each stage in this

structure, the defendant is required to raise all issues then amenable to

review." Id. at 712. "Any issue that could have been raised but was not is

treated as waived." Id.

      The Commonwealth now suggests that the trial court and Dunn were

bound by the Court of Appeals' remand for a new trial. It argues explicitly that

the double-jeopardy question is one that should have been raised previously

and is therefore waived.

      After substantial research, however, it appears to this Court that the

Commonwealth's argument is built on a pair of incorrect premises.

      First, the trial court in this case would not be violating the appellate

mandate, by considering (and granting) Dunn's motion to dismiss if, in fact, he

                                         11
has shown a double-jeopardy violation. Although the Court of Appeals

remanded to the circuit court for a new trial, that does not literally require that

Dunn be retried. Obviously, the defendant might enter a plea. Or the

Commonwealth could choose to dismiss because evidence had been lost. In

fact, any number of legitimate things might prevent a retrial. All a remand for

a new trial does is reset the process, giving the Commonwealth the right to

proceed or the defendant the right to plead—or not. This reset is subject to any

directions from the appellate court: "upon return of a case from this court for a

new trial the situation of the parties and the condition of the case is the same

as if the trial court in place of this court had granted a new trial, subject,

however, to the directions given by this court concerning the manner in which

the case shall be retried." Halteman v. Russell, 185 S.W.2d 399, 402 (Ky. 1945).

       For the Commonwealth to prevail on this issue, this Court would have to

impose a rule of such rigidity as to defeat the purpose of a retrial in the first

instance: to allow for a fundamentally fair trial. Such an extreme reading of

Johnson borders on the ridiculous, and cannot justify the trial court requiring

retrial on all seven charges, even though Appellant had been acquitted on two

of the seven in the first trial.

       It is also important to note that the follow-the-mandate rule laid out in

Johnson applied to an affirmed judgment. 450 S.W.3d at 710; see also

Williamson v. Commonwealth, 767 S.W.2d 323, 325 (Ky. 1989) (applying rule to

portion of judgment affirmed on appeal). The rule is driven by the interest in

finality of judgments, and thus it is addressed to situations "when an issue is

finally determined by an appellate court." Johnson, 450 S.W.3d at 711 (quoting

                                         12
Williamson, 767 S.W.2d at 325) (emphasis added). Simple logic dictates that an

appellate court order constrains a trial court from "redoing" that which has

already been affirmed and is the law of the case.

      In vacating Dunn's conviction and remanding for a new trial, the Court of

Appeals was, in fact, not deciding anything finally, at least not with respect to

his guilt or, if necessary, appropriate sentence. If anything, the Court of

Appeals delayed finality by undoing the existing judgment and allowing further

proceedings.

      But the Commonwealth also claims that the double jeopardy issue could

have been raised in the previous appeal and cannot be raised now under the

rule that issues that could have been raised but were not treated as waived.

This waiver rule is an extension of the law-of-the-case doctrine, and it works

"to bar the trial court from considering issues on remand that could have been

but were not raised in the appeal." Johnson, 450 S.W.3d at 712. But this rule

is also concerned "with society's and the court's interest in the ultimate finality

of judgments." Id. (quoting Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky.

2010)). Again, there was no final judgment being affirmed that could be

affected by raising new issues on remand. The finality interest served by the

Johnson waiver rule simply was not in play because the Court of Appeals

reversed and remanded this case for a new trial.

      Indeed, what was important in Johnson was that this Court's prior

opinion "required no further proceedings (such as a retrial, a hearing, or a

resentencing at which probation was to be considered) that might have allowed

a new issue to be injected into this case." Id. at 714 (emphasis added). Here,
                                         13
the trial court was told to hold a new trial. That is precisely the type of further

proceeding that Johnson contemplated would allow the injection of additional

issues. And there were no limits in the Court of Appeals' remand, other than

the implicit requirement that any retrial use appropriate jury instructions, and

the double-jeopardy question had not previously been decided.

       This brings us to the Commonwealth's second incorrect premise: the

assumption that the double-jeopardy issue could have been raised and decided

in the Criminal Rule 11.42 action, and thus was waived. The simple fact is that

Dunn could not have asked either the trial court or the Court of Appeals to

dismiss the charges against him because any double-jeopardy claim based on

the threat of a second trial was not yet ripe.

       Although a defendant does not have to wait until a second conviction

before he may raise this type of double-jeopardy challenge, since it is the

second attempt to convict that is forbidden, see Witte v. United States, 515 U.S.

389, 397 (1995) (holding that double-jeopardy claim was ripe when government

undertakes second prosecution), 2 his claim is not ripe until the government

actually initiates the second prosecution. 3


       2 Indeed, this is why, as explained above, the federal courts allow an

interlocutory appeal of an adverse double jeopardy decision of this type.
        3 Some courts have held that a double jeopardy claim is not ripe until the

defendant receives a second punishment. See, e.g., United States v. McKinley, 38 F.3d
428, 430 (9th Cir. 1994) (concluding "that because the double jeopardy claim focuses
on double punishment it is not ripe for review" where defendant had not yet been
subjected to a second punishment); United States v. Koonce, 885 F.2d 720, 722 (10th
Cir. 1989) (double jeopardymotion not ripe for review "[u]nless and until defendant
receives some punishment ... that is arguably multiple"). Those cases, however, are
based on the Double Jeopardy Clause's protection against multiple punishments, not
its protection against subsequent prosecution. Again, the "right not to be tried more
than once and the right not to receive multiple convictions and punishments for the
same offense are both protected by the double jeopardy clause, but they are
                                            14
      Until the government indicates its intent to try a defendant a second

time, any "Double Jeopardy claim is pure speculation about what might occur

in the future." United States v. Suarez, 617 Fed. Appx. 537, 545 (6th Cir. 2015).

This appears to be the almost universal rule across the United States. 4 For



conceptually distinct rights." United States v. Central Liquor Co., 628 F.2d 1264, 1266
(10th Cir. 1980). When the double jeopardy claim becomes ripe depends on the nature
of the protection claimed. Thus, a defendant may pursue—by interlocutory appeal, no
less—a claim that he is being subjected to a second trial improperly, see Abney v.
United States, 431 U.S. 651, 661 (1977), but would have to wait until convicted of two
crimes that allegedly arise from the same act, whether in a single trial or successive
trials, before he can invoke the protection against multiple punishment.
        4 The examples are too numerous to include in the text above. They include:

 United States v. Qasim, 294 Fed. Appx. 509, 514 n.6 (11th Cir. 2008) ("Whether the
government would commence a second prosecution of Qasim for murder is
speculation, and Qasim's double jeopardy claim is not ripe."); United States v. Corona,
34 F.3d 876, 882 n.5 (9th Cir. 1994) ("We do not address the question of whether the
Double Jeopardy Clause now bars the government from trying Corona in California on
the substantive counts. This issue would only become ripe if the government did
attempt a second prosecution."); Nelson v. State, 72 So. 3d 1038, 1044-45 (Miss. 2011)
 (concluding that double-jeopardy claim based on fact that defendant "may be
prosecuted in the future ... is not ripe for determination"); Morris v. State, 795 A.2d
653, 661 (Del. 2002) ("[A] properly presented claim that retrial is barred by double
jeopardy cannot be raised unless and until the State elects to reprosecute.
Accordingly, the issue is not ripe and we decline to pass upon the question. Whether
or not the State will seek a retrial and, if so, how the double jeopardy issue will be
presented to the Superior Court and how it will rule are all, of course, unknown future
events. As interesting as this issue is, we may never have to decide it. If we were to
speak to the issue in this Opinion we would be expressing an advisory opinion, and
that is not our proper function." (footnotes omitted)); State v. McKenna, 512 A.2d 113,
 115 (R.I. 1986) ("Unless or until a second prosecution is commenced, defendant's
double-jeopardy challenge is speculative and not ripe for consideration by this court.");
Bailey v. State, 688 P.2d 320, 322 (Nev. 1984) ("We conclude, however, that unless
and until the state refiles the attempted murder charge, the double jeopardy claim is
premature; accordingly, we decline to address it at this time. On remand, if the state
refiles the murder charge, appellant may raise his double jeopardy claim in district
court by the appropriate motion."); State v. Bazemore, 107 Conn. App. 441, 945 A.2d
987 (App. Ct. Conn. 2008) (concluding "that because a second prosecution has not
been commenced ..., the issue is not yet ripe for adjudication"); York v. State, 751 So.
2d 1194, 1199-200 (Miss. Ct. App. 1999) (concluding that double jeopardy "is not ripe
for review" and that "the risk of double jeopardy is speculative" until government tries
to prosecute); State v. Rasch, 935 P.2d 887, 890-91 (Ariz. Ct. App. 1996)
 ("Furthermore, we observe in passing that a double jeopardy issue is not 'ripe' until
the defendant is prosecuted following a mistrial. The issue is normally presented when
defendant moves to dismiss the second prosecution on double jeopardy grounds,
claiming that judicial or prosecutorial overreaching intentionally forced a mistrial of
                                               15
example, the Eleventh Circuit has held that where the district court directed a

verdict of acquittal while an appeal of a suppression question was pending, a

double-jeopardy claim was not yet ripe in the appeal. United States v. Tovar-

Rico, 61 F.3d 1529, 1532 (11th Cir. 1995). The court held instead: "If the

government decides to proceed with another trial of [the defendant], she may

raise the double jeopardy issue which would then be ripe for decision. We

cannot speculate what further proceedings, if any, will take place." Id.

       Despite this authority, the Commonwealth cites Commonwealth v.

Davidson, 277 S.W.3d 232, 235 (Ky. 2009), in which we affirmed the Court of

Appeals' decision to bar retrial on double-jeopardy grounds, before there was

ever a threat of retrial, where it found the evidence insufficient to support the

conviction. But this case is at best factual precedent for the practice because

the ripeness of the double-jeopardy question does not appear to have been

raised in the case, either before the Court of Appeals on rehearing or before

this Court on discretionary review, which was sought by the Commonwealth.




the original prosecution." (citations omitted)); Burks v. State, 876 S.W.2d 877, 889
(Tex. Crim. App. 1994) ("In regards to any potential claim of jeopardy which appellant
might have to assert in a future prosecution, the proper time to argue this issue is
after he has been charged or indicted for that unnamed future offense. As of now, that
issue is far from ripe."); Coles v. Smith, 1:10 CV 525, 2013 WL 474706, at *8 (N.D.
Ohio Feb. 7, 2013), affd, 577 Fed. Appx. 502 (6th Cir. 2014) ("[D]ouble jeopardy
issues arise only after the state files a second indictment."); Willing v. Warren, CIV. 06-
11650, 2006 WL 1107070, at *1 (E.D. Mich. Apr. 26, 2006) ("Double Jeopardy became
ripe at the first notice of the State's intent to retry Mr. Willing in a published notice,
June 30, 2005, and was furthered by its second notice of intent through an ex parte
Motion for Writ of Habeas Corpus, filed July 22, 2005."); Johnston v. Porter, CV-05-
078-CI, 2005 WL 2708421, at *4 (E.D. Wash. Sept. 29, 2005) ("To be colorable, a
double jeopardy claim must have some possible validity. This issue would become ripe
only if and when the government attempts a second prosecution" (citation and
quotation marks omitted)).
                                            16
Davidson simply has nothing to say about the ripeness of a double-jeopardy

claim.

         And this Court has declined elsewhere to address a double jeopardy

question as not yet ripe where a second prosecution has not yet been

commenced. See Applegate v. Commonwealth, 299 S.W.3d 266, 271 (Ky. 2009)

(holding that a double-jeopardy claim related to lack of specificity in jury

instructions "is not yet ripe" because defendant had "not been again arrested or

indicted for any crimes for which he has already been convicted"). Until the

Commonwealth decides to proceed with the subsequent prosecution, any

"concerns about double jeopardy are speculative and not justiciable." Id.

         Of course, Dunn did request a new trial in his Criminal Rule 11.42

motion. It thus could be argued that he should have raised his double jeopardy

claim then because a second trial was inevitable if he prevailed (which he did).

This is precisely the claim that was presented to the Pennsylvania Superior

Court in Commonwealth v. Moose, 623 A.2d 831 (Pa. Super. Ct. 1993), as part

of an argument that the defendant waived any double-jeopardy claim by asking

for a new trial without raising the double jeopardy question in the same

appeal.

         There, the government suggested, as does the Commonwealth here, that

the defendant "received what he requested on appeal, i.e., a new trial, and

should not now be permitted to seek additional relief in the form of dismissal of

the charges." Id. at 835 n.2. But as we pointed out above, that assumes

entirely too much. And, as the Pennsylvania court noted, lilt is not axiomatic

from that juncture ... that the Commonwealth will undertake re-prosecution."
                                         17
Id. Instead, it is only "[o]nce that decision has been made by the

Commonwealth ... [that] the question of being placed twice in jeopardy is ripe

for review." Id.

      Indeed, it is axiomatic that a defendant is not at risk a second time—that

is, subject to double jeopardy—until he in fact is put at risk. That can only

occur when and if a second prosecution occurs.

      And this case is a good example of where, at least at the time of Dunn's

request for a new trial, the Commonwealth might have chosen not to proceed to

trial a second time if Dunn's claim was successful. Dunn was acquitted of two

of the charges against him, which suggests the Commonwealth's proof was not

compelling across the board. It was entirely possible that the Commonwealth

may not have wanted a second trial, whether because of concerns about its

own resources being wasted or about further trauma to the complaining

witness. Or, more likely, the Commonwealth might have anticipated seeking a

plea agreement. Either way, a second trial might not have occurred.

      We agree with the vast majority of courts to have addressed this

question. Where a defendant's conviction has been vacated and the matter is

remanded for a new trial, any claim of a violation of the double-jeopardy right

against successive prosecution is not ripe until the Commonwealth indicates

its intent to re-prosecute. Obviously that decision was eventually made in this

case, but it did not (and could not) occur until the remand took place. We agree

with Pennsylvania that there is no guarantee that a second prosecution will

occur, and that any claim of a double-jeopardy violation before the

Commonwealth indicates its intent would be speculative.
                                        18
      Finally, the Commonwealth suggests that Dunn is barred from raising

his double-jeopardy claim simply because he procured the vacation of his

convictions by pursuing his 11.42 remedies. If this were a case about an

evidentiary error or other trial error, a reversal would not bar reprosecution on

double jeopardy grounds because "[i]t is elementary that one may not complain

of former jeopardy when he procured the setting aside of the earlier judgment."

Ferguson v. Commonwealth, 401 S.W.2d 225, 228 (Ky. 1965); see also Lockhart

v. Nelson, 488 U.S. 33, 38 (1.988). That limit, however, does not apply where

the defendant has previously been acquitted of the charges that he now

challenges. A jury acquittal results in the greatest protection against

subsequent prosecution. See, e.g., Ball v. United States, 163 U.S. 662, 671

(1896) ("The verdict of acquittal was final, and could not be reviewed, on error

or otherwise, without putting him twice in jeopardy, and thereby violating the

constitution. However it may be in England, in this country a verdict of

acquittal, although not followed by any judgment, is a bar to a subsequent

prosecution for the same offense."). Indeed, "we necessarily afford absolute

finality to a jury's verdict of acquittal—no matter how erroneous its decision."

Burks, 437 U.S. at 1.

      And, as the clincher, it should be noted that although Dunn obtained the

vacation of his convictions on grounds of ineffective assistance of counsel, he

has not waived any claim of double jeopardy with respect to the remaining

counts given the unusual circumstances of his case. He claims, quite correctly,

that he was acquitted of two counts at his previous trial and may never be re-

tried for the offenses to which those counts correspond.
                                        19
      He also claims that because he (and, indeed, no one) can know what

offenses those acquittals relate to, he cannot be retried on any of the counts.

He is, in essence, pleading that his former acquittals bar a subsequent

prosecution. If he is correct on that claim, then his present double jeopardy

claim cannot have been waived by his success in obtaining the vacation of his

other convictions. He is not claiming that his re-prosecution is barred by the

fact that he was previously prosecuted for those offenses; he is, instead,

claiming that re-prosecution is barred because he was functionally acquitted of

the previous offenses.

      He is correct, then, that he did not waive his present double-jeopardy

claim by successfully pursuing the vacation of his convictions. His double-

jeopardy claim is not based on the fact of the previous convictions. It is instead

based on the prior acquittals. A jury's verdict of acquittal, if indeed there is

one, is absolute. If Dunn is correct that those acquittals apply to the other

identically worded counts for which he was prosecuted, then he is correct that

he has not waived any successive-prosecution claim as to those counts.

   C. Double jeopardy bars re prosecution of Dunn.
                                 -




      Having concluded both that the remedy of a writ is available and that

Dunn has not waived his successive-prosecution double-jeopardy claim, we

turn now to the merits of that claim. As noted above, we have not previously

addressed this issue, though we have hinted that the problem with identically

worded "carbon copy" jury instructions may be "viewed as one of ... double

jeopardy," among other concerns. Miller, 283 S.W.3d at 695 (quoting Miller, 77

S.W.3d at 576). Those cases have actually turned on the other concerns, such
                                         20
as the effect of such instructions on the defendant's rights to a unanimous

verdict and to due process. See id. 694-95 (discussing unanimous verdict and

due-process problems).

      The core problem when identical, generic counts are used is that "we

cannot be sure what factual incidents were presented and decided by this

jury." Valentine v. Konteh, 395 F.3d 626, 635 (6th Cir. 2005). The indictment in

such a case is considered flawed for this reason. If the error in the indictment

is carried on in the instructions and resulting jury verdict, a due-process

violation occurs. The due-process problem is two-fold: the generic indictment

failed to give adequate notice of the charges, id. at 631-32, and the indictment,

along with the instructions and verdict, fails to provide adequate protection

against double jeopardy in the future, id. at 634-35. This second aspect is not a

double-jeopardy error per se; it is still a due-process violation.

      At the time of the first trial, any double-jeopardy problem is only a

potential one. As discussed above, such double-jeopardy issues are not ripe

until a second prosecution is pursued. And that problem, while obviously

related to due-process concerns, is distinct from any due-process problem. The

due-process error is a present problem; any double-jeopardy problem is a

future one. Thus, the instructions and jury verdicts have an existing defect

affecting the defendant's rights to due process, but they also have the latent

defect related to the defendant's double-jeopardy rights that can manifest only

if there is a reversal of the convictions and a retrial in the future.

      But in this case, we have arrived at that future. The Commonwealth

previously employed a generic, identically worded multiple-count indictment.
                                          21
The trial court then used generic, identically worded jury instructions on those

counts. The jury returned a mixed verdict on those counts. And the Court of

Appeals reversed the convictions on error conceded by the Commonwealth. The

Commonwealth now seeks to prosecute Dunn a second time.

      Dunn claims that his prior acquittals bar his retrial. This Court agrees.

The latent defect has now become manifest; what had been a potential double-

jeopardy problem has now become an existing double-jeopardy problem.

      As Justice Cunningham has noted of identically worded jury

instructions, "We do not know exactly which criminal acts the jury

unanimously found the defendant guilty of." Miller, 283 S.W.3d at 705

(Cunningham, J., concurring). But that also means that we do not know

exactly which criminal acts the jury unanimously acquitted the defendant of.

      Unlike the convictions, which have been set aside, the acquittals

continue to have full effect and are not undone by any appeal. Indeed, this is

why the Court of Appeals granted the writ of prohibition to bar the circuit court

from retrying Dunn on the two counts of which he was acquitted. But what

crimes were covered by those counts?

      Almost every other jurisdiction to have considered this question has

concluded that upon retrial, "nothing would preclude a new jury from

convicting [the defendant] for alleged incidents for which he already has been

acquitted," and that such an outcome would "constitute double jeopardy."

State v. Heaven, 110 P.3d 835, 838 (Wash. 2005); accord State v. Salter, 42

A.3d 196, 207 (N.J. Super. Ct. App. Div. 2012) ("[W]e could not say with any

confidence that defendant would not endure a second prosecution for the same
                                       22
offense after acquittal, something categorically prohibited by our double

jeopardy jurisprudence." (internal quotation marks omitted)); Goforth v. State,

70 So.3d 174, 190 (Miss. 2011) (holding that defendant who was acquitted on

three of five identically worded counts "cannot be prosecuted again on these

charges or for any same crimes that occurred during the time period set forth

in her indictment" when the convictions were reversed for other grounds);

Brown v. Superior Court, 114 Cal. Rptr. 3d 804, 820 (Cal. Ct. App 2010)

(concluding that "the prosecutor has not shown, and cannot show, that none of

the acquittals pertained to the ... incident [being prosecuted]" and that

"[d]ouble jeopardy precludes the retrial of [the] count"); Commonwealth v.

Hrycenko, 630 N.E.2d 258, 263 (Mass. 1994) ("The defendant could not have

been retried on the two indictments on which the convictions were reversed on

appeal without being subjected to the risk of conviction on a rape charge on

which he had been previously acquitted."); State v. Ogle, 2007-Ohio-5066, 2007

WL 2793355, 1123 (Oh. Ct. App. Sept. 27, 2007) (unpublished opinion) (finding

double jeopardy barred retrial upon reversal where defendant was acquitted on

some counts and convicted of others); Madsen v. McFaul, 643 F. Supp. 2d 962,

968 (N.D. Ohio 2009) ("This Court realizes the jury acquitted Petitioner on two

of the eight rape counts, but the carbon-copy nature of the Indictment and Bill

of Particulars result in an effective acquittal on all eight counts for the purpose

of evaluating this Petition."); cf. Isaac v. Grider, No. 98-6376, 2000 WL 571959

(6th Cir. 2000) (unpublished table decision) (noting that "the identical charges

introduced the risk of double jeopardy and, indeed, may have already resulted

in double jeopardy in this prosecution given the unique facts of this case,"
                                         23
namely, where trial court acquitted defendant on four charges and then

submitted six charges to jury, which convicted); Dorsey v. Banks, 749 F. Supp.

2d 715, 743-46 (S.D. Ohio 2010) (finding double-jeopardy violation where trial

court acquitted defendant on two charges but allowed a third charge to go to

the jury, and there was evidence of multiple offenses).

      Where the earlier not-guilty verdicts are based on generic, identically

worded counts both in the indictment and jury instructions, they must be

given effect. Because those acquittals cannot be tied to any particular alleged

crimes, they must necessarily act as acquittals on all the counts brought at

that time, just as they would if Dunn had been indicted for additional identical

counts after the first trial had resulted in only acquittals. If the Commonwealth

retries Dunn for any of the counts originally at issue in his trial, he faces a risk

of being tried for a count for which he has already been acquitted. There is

simply no way, in this after-the-fact review, to definitively say on which counts

the jury acquitted Dunn. The Commonwealth cannot hide behind jury

instructions—found to be flawed by the Court of Appeals in the 11.42 appeal,

and admitted to be erroneous by the Commonwealth itself—to avoid the risk

that Dunn is being placed in double jeopardy by his retrial.

      As noted above, this Court has previously condemned the use of

identically worded jury instructions on multiple counts that do not require the

jury to factually distinguish one instance of a crime from another. Such

instructions implicate multiple constitutional rights, including the right to due

process. But this case illustrates the greater problem with the use of such

instructions. Not only are the jury verdicts based on such instructions flawed,
                                         24
but retrial cannot be had if the jury returned a mixed verdict. As the Ohio

federal district court noted in Madsen, being convicted on "two out of [seven]

counts ... result[s] in an effective acquittal on all [seven] counts." Madsen, 643

F. Supp. 2d at 968.

                                 III. Conclusion

      A new trial in this case raises a substantial risk that Dunn will be tried

for crimes for which he has already been acquitted, thereby violating his

double-jeopardy right against successive prosecution. For that reason, the

order of the Court of Appeals denying Dunn's petition for a writ of prohibition

is reversed, and this case is remanded to the Court of Appeals to issue a writ in

conformity with this opinion.

      Minton, C.J.; Hughes, Venters and Wright, JJ., concur. Keller, J.,

concurs in result only. Cunningham, J., not sitting.




                                        25
COUNSEL FOR APPELLANT:

Matthew McGavock Robinson
Robinson & Brandt, P.S.C.
629 Main Street, Suite B
Covington, Kentucky 41011


APPELLEE:

Honorable Beth Lewis Maze
Judge, Montgomery Circuit Court
21st Judicial Circuit
PO Box 1267
Mt. Sterling, Kentucky 40353


COUNSEL FOR REAL PARTY IN INTEREST:

Andy Beshear
Attorney General

Jeffrey Allan Cross
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, Kentucky 40601

Ronnie Lee Goldy, Jr.
Commonwealth's Attorney
44 West Main Street, Suite A
Mt. Sterling, Kentucky 40353




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