[Cite as Cleveland v. Jones, 2017-Ohio-7320.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104965



                                CITY OF CLEVELAND
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  TROUSSAINT JONES
                                                      DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                       Criminal Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2013 TRC 034882

        BEFORE: Boyle, J., E.A. Gallagher, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: August 24, 2017
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
BY: David Martin King
        John T. Martin
        Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Director of Law
BY: Bridget E. Hopp
Assistant City Prosecutor
City of Cleveland
1200 Ontario Street
Justice Center, 8th Floor
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

      {¶1} Defendant-appellant, Troussaint Jones, appeals from a judgment of the

Cleveland Municipal Court denying his motion to dismiss charges pending against him on

the grounds that any further proceeding would violate the double jeopardy protections

guaranteed to him by the United States and Ohio Constitutions.            He raises one

assignment of error for our review:

      The trial court erred and violated Troussaint Jones’s state and federal
      constitutional protections against double jeopardy when it denied Jones’s
      motion to dismiss and permitted the city to subject Troussaint Jones to a
      second prosecution for the same offenses to which he pled no contest three
      years earlier.

      {¶2} For the reasons that follow, we agree with Jones that any further criminal

prosecution in this matter offends the principles of double jeopardy. Accordingly, we

reverse the trial court’s judgment and remand with instructions. I. Procedural History

and Factual Background

      {¶3} On the afternoon of June 15, 2013, Ohio State Highway Patrol Trooper

Jason Turner pulled Jones over after observing him swerve across marked lanes.

Noticing signs of impairment in Jones, Trooper Turner attempted to conduct field sobriety

tests but was unable to proceed due to Jones’s combativeness. The trooper cited Jones

with violating four state laws: R.C. 4511.19(A)(1)(a) (driving while intoxicated) and

(A)(2) (driving while intoxicated with a prior OVI within the past 20 years and refusal to

submit to chemical tests), 4510.037(J) (driving with a 12-point suspended license), and

4511.33 (driving over “marked lanes”).
      {¶4} The case proceeded through a series of pretrials that eventually ended in

Jones’s defense attorney entering a plea of no contest for Jones to the charges.        The

court, sua sponte and over the city prosecutor’s objection, amended the OVI violation of

R.C. 4511.19(A)(1)(a) to a violation of Cleveland Codified Ordinances (“CCO”) 433.011,

which prohibits a person from being in physical control of a vehicle while impaired.

Further, the court found Jones not guilty of OVI in violation of R.C. 4511.19(A)(2), but

found him guilty of driving under a suspended license (“DUS”) and driving over marked

lanes (“marked lanes”).

      {¶5} The court sentenced Jones to pay a fine and spend 60 days in jail with 55

days suspended.      The court further ordered Jones to attend programs and meetings

related to drug and alcohol abuse, and placed him on one year of active probation.    Jones

completed his sentence as ordered.

      {¶6} The city sought and obtained leave from this court to appeal the trial court’s

decision.    On appeal, the city raised one assignment of error: that the trial court abused

its discretion by reducing a charge of OVI to physical control over the prosecutor’s

objection.   In a plurality opinion, this court agreed.   With two concurrences and one

dissent, the court’s controlling opinion reversed Jones’s physical control conviction and

remanded the cause to the trial court. See Cleveland v. Jones, 8th Dist. Cuyahoga No.

100598, 2014-Ohio-4201.

      {¶7} Immediately after we released our decision, Jones filed motions for

reconsideration and for en banc review, primarily arguing that any remand would violate
double jeopardy and that the panel’s decision was in conflict with other decisions of this

court. We denied both motions in succession. Much like the opinion in the direct

appeal, the motion for reconsideration showed a split in reasoning among the judges, with

the same judges concurring, although for separate reasons, and one dissenting.

         {¶8} Further, in the journal entry denying en banc consideration, 11 of the 12

appellate judges on this court agreed that the decision on direct appeal had no majority

opinion in light of the fact that each panel member performed a different analysis of the

issues and reached different conclusions. We also noted that the decision contained “no

consensus about the basis of the court’s jurisdiction or whether double jeopardy would

bar further prosecution,” and was, therefore, not in conflict with other decisions of the

court.    All three judges on the panel in the direct appeal concurred with the majority

opinion and analysis in the en banc denial.

         {¶9} The Ohio Supreme Court accepted jurisdiction on further appeal by Jones,

set a briefing schedule on the issue of whether the court had jurisdiction to accept the

appeal, and held oral arguments on the case.   But before issuing an opinion, the Supreme

Court, sua sponte, dismissed the appeal as having been improvidently accepted.         In

doing so, the court stated that “the opinion of the court of appeals may not be cited as

authority except by the parties inter se.”     Cleveland v. Jones, 146 Ohio St.3d 218,

2016-Ohio-2914, 54 N.E.3d 1215, ¶ 2.

         {¶10} After the Supreme Court dismissed Jones’s appeal, the case returned to the

Cleveland Municipal Court by way of this court’s original remand order. Once there,
the case was reassigned to a different judge after the original trial judge recused herself

from the case. Jones promptly filed a motion to dismiss the charges on the grounds that

they violated double jeopardy. The trial court’s denial of that motion is the subject of

the present appeal.

II. Double Jeopardy Analysis

       {¶11} The denial of a motion to dismiss on double jeopardy grounds is a final

appealable order subject to immediate appellate review. State v. Anderson, 138 Ohio

St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 26. Appellate courts review the denial of a

motion to dismiss on the grounds of double jeopardy de novo. State v. Morris, 132 Ohio

St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16.

       {¶12} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, and Article I, Section 10 of the Ohio Constitution protect a defendant from

being twice put in jeopardy for the same offense. In re A.G., 148 Ohio St.3d 118,

2016-Ohio-3306, 69 N.E.3d 646, ¶ 8. As the United States and Ohio Supreme Courts

acknowledge:

       [T]he Double Jeopardy Clause protects against three abuses: (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.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.
       2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v.
       Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

In re A.G. at ¶ 8, citing State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892.

       {¶13} Whether a further prosecution violates the principles of double jeopardy

depends on whether jeopardy attached in the prior proceeding.     “Jeopardy ‘attaches,’ so
as to preclude subsequent criminal proceedings, at different points in time depending on

the nature of the proceeding in question.” State v. Gustafson, 76 Ohio St.3d 425, 435,

668 N.E.2d 435 (1996).

       {¶14} Where a trial court “exercises its discretion to accept a no contest plea,” a

defendant is placed in jeopardy at that moment. State ex rel. Sawyer v. O’Connor, 54

Ohio St.2d 380, 382, 377 N.E.2d 494 (1978); see also State ex rel. Leis v. Gusweiler, 65

Ohio St.2d 60, 418 N.E.2d 397 (1981). This is true “irrespective of whether, in arriving

at that determination, the trial court grossly abused its discretion or erroneously” applied

“the law or facts in arriving at its verdict.” Sawyer at 382-383.

       {¶15} Jones contends that another prosecution in this case would violate the

Double Jeopardy Clause’s protection against successive prosecutions because he was

“acquitted on some charges, convicted and sentenced on others, and served his entire

sentence.”   He maintains that “[t]he instant case violates all three components of the

Double Jeopardy Clause.”     We agree.

       {¶16} It is important to note that this decision, as well as the decision on direct

appeal, can and should have no effect whatsoever on Jones’s DUS and marked lanes

convictions, or on his acquittal of OVI in violation of R.C. 4511.19(A)(2). On direct

appeal, the state did not raise any assignments of error with regard to the acquittal and

convictions on those counts. Accordingly, this court’s remand order only applied to the

OVI charge in violation of R.C. 4511.19(A)(1)(a).     Any attempt to reprosecute the other

charges is, without question, a violation of Jones’s rights under the Double Jeopardy
Clause because jeopardy attached to those unappealed verdicts.        Accordingly, to the

extent that they are still pending on the charging document, those charges must be

dismissed.

      {¶17} With regard to the improperly amended OVI charge — double jeopardy bars

further prosecution as well.   The record reflects that Jones, by and through his attorney,

entered a “no contest” plea to all of the charges contained in the original indictment.

The court did not amend the charge until after taking the plea and hearing the facts, at

which point the court found him guilty of the amended charge of physical control. By

amending the charge, the court implicitly found Jones not guilty of OVI in violation of

R.C. 4511.19(A)(1)(a), a fact also reflected by the court’s express acquittal of Jones on

the OVI in violation of R.C. 4511.19(A)(2), which penalizes having a prior OVI within

the previous 20 years. The court would have necessarily found it difficult to acquit on

R.C. 4511.19(A)(2), if it had not first acquitted on the R.C. 4511.19(A)(1)(a) — a

predicate offense to a finding of guilt under (A)(2).      Accordingly, double jeopardy

attached by way of acquittal on OVI in violation of R.C. 4511.19(A)(1)(a).

      {¶18} We recognize that at first glace our rationale may appear to be in conflict

with the controlling and concurring opinions in our decision in Jones, 8th Dist. Cuyahoga

No. 100598, 2014-Ohio-4201. But it is not.

      {¶19} The controlling and concurring opinions on direct appeal show no consensus

among the panel as to why the physical control conviction should be reversed and the

cause remanded, and there was also no consensus on whether double jeopardy would bar
further prosecution.     This is a fact that the panel members themselves acknowledged in

the denial of en banc consideration. Although the panel’s controlling opinion noted that

the trial court’s noncompliance with Traf.R. 10 rendered Jones’s plea “infirm,” this was

only one of multiple considerations leading to the ultimate conclusion that the court had

abused its discretion by amending an OVI to physical control.        See id. at ¶ 37.    Only the

concurring opinion found the plea and subsequent verdict “void” for noncompliance with

Traf.R. 10. To put it simply, the only thing that the lead opinion and the concurring

opinion agreed on, was the result that the judgment of the trial court should be reversed.

         {¶20} Accordingly, we reverse the decision of the trial court denying Jones’s

motion to dismiss the charge. On remand, the trial court is instructed to dismiss the

charge and further correct its journal entry on the finding of guilt on the physical control

charge.    This correction should reflect the panel’s decision on direct appeal that was to

reverse the conviction.     Further, the trial court must enter an acquittal on the OVI charge

in violation of R.C. 4511.19(A)(1)(a) to reflect the original trial judge’s acquittal on that

count.

         {¶21} The judgment is reversed and remanded with instructions to follow the

directives of this decision.

         It is ordered that appellant recover from appellee the costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the     Cleveland

Municipal Court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR
