[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Anderson, Slip Opinion No. 2016-Ohio-5791.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-5791
           THE STATE OF OHIO, APPELLEE, v. ANDERSON, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State v. Anderson, Slip Opinion No. 2016-Ohio-5791.]
Criminal law—Double jeopardy—Defendant’s double-jeopardy challenge to
        retrial following mistrial analyzed under Double Jeopardy Clause rather
        than Due Process Clause—Double Jeopardy Clause not offended by
        defendant’s retrial after series of properly declared mistrials—Court of
        appeals’ judgment affirming denial of motion to dismiss indictment
        affirmed and cause remanded to trial court.
   (No. 2015-1107—Submitted May 31, 2016—Decided September 14, 2016.)
             APPEAL from the Court of Appeals for Mahoning County,
                           No. 11 MA 43, 2015-Ohio-2029.
                             _______________________
                             SUPREME COURT OF OHIO




       KENNEDY, J.
                                  I. Introduction
       {¶ 1} In this discretionary appeal, we consider whether the Seventh
District Court of Appeals erred in affirming the trial court’s decision to deny the
motion filed by appellant, Christopher L. Anderson, to dismiss his indictment.
Anderson filed the motion to dismiss after the state gave notice of its intent to
retry him following a series of mistrials that were declared in his case during the
14 years since his arrest.
       {¶ 2} Anderson advances a single proposition of law:


               The Due Process Clause of the Fourteenth Amendment and
       Ohio Constitution, Article I, Sections 1, 2, 10, and 16 bar the State
       from making repeated attempts over a long course of time to
       convict a person by simply wearing him down when there is no
       new evidence of guilt.


       {¶ 3} For the reasons that follow, we conclude that a double-jeopardy
challenge to the retrial of a defendant following a mistrial is analyzed under the
Double Jeopardy Clause rather than the more general Due Process Clause. We
further conclude that the Double Jeopardy Clause is not offended when the state
seeks to retry a defendant after a series of properly declared mistrials. Therefore,
we affirm the judgment of the court of appeals, albeit on different grounds, and
remand the matter to the trial court.
                        II. Facts and Procedural History
       {¶ 4} On the morning of June 3, 2002, Amber Zurcher was found dead
inside her locked apartment.       An autopsy was conducted, and the coroner
concluded that Zurcher had died of asphyxiation due to ligature strangulation.
The autopsy also revealed apparent bite marks on her left breast. Additional




                                         2
                                 January Term, 2016




analysis found Anderson’s DNA under Zurcher’s fingernails and on her breast.
On August 29, 2002, Anderson was indicted for the murder.
          {¶ 5} On May 27, 2003, prior to Anderson’s first trial, the judge granted a
defense motion in limine excluding any testimony regarding a prior incident in
which Anderson allegedly had bitten and choked another woman. During the
trial, however, without prompting by the prosecutor, a witness testified that
Zurcher once told her that Anderson had “tried to strangle his ex-girlfriend.”
Thereafter, the judge declared a mistrial.
          {¶ 6} Anderson’s second trial began on November 18, 2003. Before the
beginning of that trial, the state filed a motion in limine seeking a ruling regarding
the admissibility of testimony from the other woman whom Anderson allegedly
had bitten and choked. The judge allowed the woman to testify about the alleged
incident. At the conclusion of the second trial, Anderson was found guilty of
murder. On December 4, 2003, Anderson was sentenced to 15 years to life in
prison.
          {¶ 7} On December 26, 2003, Anderson appealed his conviction to the
Seventh District Court of Appeals. Thirty-three months later, on September 1,
2006, the court of appeals reversed Anderson’s conviction and remanded the
matter for retrial, holding that the trial court had erred in allowing the testimony
about the prior alleged incident. 7th Dist. Mahoning No. 03MA252, 2006-Ohio-
4618, ¶ 1. We declined discretionary review. 112 Ohio St.3d 1443, 2007-Ohio-
152, 860 N.E.2d 767.
          {¶ 8} After several continuances—two of which the defense requested—
the state brought Anderson to trial for a third time in December 2008. After the
jury failed to reach a verdict, the trial court declared a mistrial.
          {¶ 9} On February 13, 2009, Anderson’s bond was reduced to $500,000.
From March 27, 2009, to February 5, 2010, Anderson’s trial was continued five
times. Three of those continuances were at Anderson’s request.




                                             3
                            SUPREME COURT OF OHIO




       {¶ 10} The fourth trial began on April 26, 2010. During voir dire, a
prospective juror commented in front of the entire venire of prospective jurors
that one of the defense counsel appeared to be asleep. The court continued the
case in order to seat a new venire. Nearly four months later, Anderson’s trial
resumed but ended in a mistrial when the jury failed to reach a verdict.
       {¶ 11} In response to the state’s notification that it intended to retry him,
Anderson filed a motion to dismiss the indictment, alleging a violation of the Due
Process and Double Jeopardy Clauses of the Ohio and United States
Constitutions. The trial court denied Anderson’s motion on February 15, 2011,
and he appealed.
       {¶ 12} On appeal, the state argued that the trial court’s order denying
Anderson’s motion to dismiss was not a final, appealable order. On June 10,
2011, a divided panel of the Seventh District held that based on the “very specific
facts of this case,” the trial court’s denial of the motion to dismiss was a final,
appealable order.
       {¶ 13} At the state’s request, on December 13, 2011, the court of appeals
granted en banc review. On September 25, 2012, the court released a tied en banc
decision, which left undisturbed the panel’s holding that the trial court’s entry
denying Anderson’s motion to dismiss the indictment was a final, appealable
order. 2012-Ohio-4390, ¶ 30.
       {¶ 14} We accepted the state’s discretionary appeal, held that the trial
court’s entry denying Anderson’s motion to dismiss was a final, appealable order,
and remanded the matter to the Seventh District for consideration of the merits of
Anderson’s appeal. 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 61.
       {¶ 15} On remand, the court of appeals determined that the due-process
and double-jeopardy challenges to Anderson’s retrial were “intertwined” and
therefore addressed them jointly. 2015-Ohio-2029, ¶ 7. From a Ninth District
decision and decisions from Hawaii and Iowa, the Seventh District derived




                                         4
                                  January Term, 2016




several factors as “provid[ing] a useful tool for analysis” of Anderson’s claims.
Id. at ¶ 22. After applying these factors, the court of appeals affirmed the trial
court’s decision denying Anderson’s motion to dismiss the indictment, holding
that “in the absence of misconduct on the part of the state, a mistrial or hung jury
does not bar retrial or retrials.” Id. at ¶ 40.
        {¶ 16} We accepted Anderson’s discretionary appeal. 144 Ohio St.3d
1407, 2015-Ohio-4947, 41 N.E.3d 446.
        {¶ 17} Anderson argues that the cumulative effect of “wearing him down”
with yet another trial would violate the “fair play” guaranteed by the Due Process
Clause. In support of this argument, Anderson emphasizes that he has been
incarcerated during the 14 years since his arrest. He urges us to reverse the
judgment of the court of appeals and decide the case based on fairness and not by
“massag[ing] the factors.”
        {¶ 18} The state urges us to apply the factors identified by the Seventh
District as relevant to this case and conclude that Anderson’s constitutional due-
process and double-jeopardy rights would not be violated by retrial.
        {¶ 19} Amicus curie, the attorney general, argues that the Due Process
Clause is not controlling when a more specific constitutional provision is
applicable—in this case, the Double Jeopardy Clause. Moreover, the attorney
general contends, when the protections afforded by the Double Jeopardy Clause
are applied, the Constitution does not bar retrial following a properly declared
mistrial. See Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 82
L.Ed.2d 242 (1984).
                                III. Law and Analysis
                                 A. Standard of review
        {¶ 20} Appellate courts apply a de novo standard of review when
reviewing the denial of a motion to dismiss an indictment on the grounds of
double jeopardy. See State v. Betts, 8th Dist. Cuyahoga No. 88607, 2007-Ohio-




                                            5
                             SUPREME COURT OF OHIO




5533, ¶ 20, citing In re Ford, 987 F.2d 334, 339 (6th Cir.1992); see also State v.
Mullins, 5th Dist. Fairfield No. 12 CA 17, 2013-Ohio-1826, ¶ 13.
 B. The Due Process Clauses of the Ohio and United States Constitutions do not
 provide greater double-jeopardy protection than the Double Jeopardy Clauses
       {¶ 21} We interpret the Ohio Due Course of Law Clause, Section 16,
Article I, as coextensive with the Due Process Clause of the Fourteenth
Amendment to the United States Constitution because the language used in the
two clauses is “virtually the same.” In re Hua, 62 Ohio St.3d 227, 230, 405
N.E.2d 255 (1980). We have recognized that these clauses are equivalent since at
least 1893. See Salt Creek Valley Turnpike Co. v. Parks, 50 Ohio St. 568, 579, 35
N.E. 304 (1893).
       {¶ 22} There are several other provisions of the Ohio Constitution that
provide similar due-process protections for Ohioans.          We have considered
Sections 1, 2, and 9 of Article I—guaranteeing inalienable rights, ensuring
equality before the law, and declaring the inviolability of private property,
respectively—to “run parallel with the protections of the Fourteenth Amendment
to the United States Constitution.” Direct Plumbing Supply Co. v. Dayton, 138
Ohio St. 540, 545, 38 N.E.2d 70 (1941). Additionally, we have considered United
States Supreme Court decisions “as giving the true meaning of the guaranties of
the Ohio Bill of Rights.” Id.
       {¶ 23} Because we have declared that these state and federal constitutional
provisions are coextensive, we can rely on decisions of both this court and the
United States Supreme Court in construing them. Although the proposition of
law that Anderson forwards—that the Due Process Clause should control over the
more specific Double Jeopardy Clause—is an issue of first impression in this
court, the United States Supreme Court has addressed the issue.
       {¶ 24} The more specific provisions of the federal Bill of Rights were the
method “that the[ ] Framers sought to restrict the exercise of arbitrary authority by




                                         6
                               January Term, 2016




the Government in particular situations.” Albright v. Oliver, 510 U.S. 266, 273,
114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion). “[T]he expansion of
those constitutional guarantees under the open-ended rubric of the Due Process
Clause invites undue interference with both considered legislative judgments and
the careful balance that the Constitution strikes between liberty and order.”
(Emphasis added.) Medina v. California, 505 U.S. 437, 443, 112 S.Ct. 2572, 120
L.Ed.2d 353 (1992). “ ‘[W]e have defined the category of infractions that violate
“fundamental fairness” very narrowly’ based on the recognition that, ‘[b]eyond
the specific guarantees enumerated in the Bill of Rights, the Due Process Clause
has limited operation.’ ” Id., quoting Dowling v. United States, 493 U.S. 342,
352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).
          {¶ 25} In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d
443 (1989), the United States Supreme Court explained: “Because the Fourth
Amendment provides an explicit textual source of constitutional protection
against * * * physically intrusive governmental conduct, that Amendment, not the
more generalized notion of ‘substantive due process,’ must be the guide for
analyzing” all claims that law-enforcement officers have used excessive force. Id.
at 395.
          {¶ 26} Since deciding Graham, the Supreme Court has consistently
declined to separately consider substantive due process when a more specific
provision of the United States Constitution applies. As the court has explained:
“Graham simply requires that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim must
be analyzed under the standard appropriate to that specific provision, not under
the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259,
272, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997), fn. 7; accord Albright, 510 U.S. at
273, 114 S.Ct. 807, 127 L.Ed.2d 114.          Therefore, it is a general rule of




                                        7
                              SUPREME COURT OF OHIO




constitutional interpretation that when a specific constitutional provision applies,
it controls over more general notions of substantive due process.
        {¶ 27} Of particular relevance here, the United States Supreme Court has
examined whether the Due Process Clause provides greater double-jeopardy
protection than the Double Jeopardy Clause. In Sattazahn v. Pennsylvania, 537
U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), the Supreme Court considered
double-jeopardy and due-process challenges to the imposition of a defendant’s
death sentence on retrial following the reversal on appeal of his life sentence.
Separately from his double-jeopardy claim, Sattazahn argued that he had
constitutionally protected life and liberty interests under the Due Process Clause
in the finality of the life sentence that the jury imposed at his first trial. Id. at 115.
The Supreme Court rejected this argument, declining Sattazahn’s “invitation to
hold that the Due Process Clause provides greater double-jeopardy protection than
does the Double Jeopardy Clause.” Id. at 116.
        {¶ 28} While the underlying issue in Sattazahn is distinguishable from
Anderson’s argument that the cumulative impact of his multiple trials offends the
Constitution, we nevertheless conclude that as in Sattazahn, the generalized due-
process claim raised in this case “is nothing more than [the] double-jeopardy
claim in different clothing.” Id. Applying the Due Process Clause in a situation
that is governed by the Double Jeopardy Clause would require us to apply the
wrong constitutional test. See Graham, 490 U.S. at 395, 109 S.Ct. 1865, 104
L.Ed.2d 443.
        {¶ 29} Government action violates due process only if it “ ‘ “offends some
principle of justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental.” ’ ” Medina, 505 U.S. at 445, 112 S.Ct. 2572, 120
L.Ed.2d 353, quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319,
53 L.Ed.2d 281 (1977), quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54
S.Ct. 330, 78 L.Ed. 674 (1934). The Double Jeopardy Clause deals specifically




                                            8
                                January Term, 2016




with the issue whether a defendant may be retried after a trial court has declared a
mistrial.
        {¶ 30} We categorically reject the Seventh District’s conjoined due-
process and double-jeopardy analysis and the factors that that court applied in this
case.   See 2015-Ohio-2029 at ¶ 22.          Instead, we agree with the argument
presented by amicus curie that the Due Process Clause is not controlling when a
more specific constitutional provision is applicable. Therefore, we follow the
lead of the United States Supreme Court and conclude that when a defendant
challenges his or her retrial, the Double Jeopardy Clause controls over the more
general Due Process Clause.
  C. The Double Jeopardy Clauses of the federal and Ohio Constitutions do not
  bar a retrial after the reversal of a conviction on appeal and multiple mistrials
        {¶ 31} Having determined that the applicable constitutional provision is
the Double Jeopardy Clause, we next consider whether double jeopardy is
offended when the state retries a defendant after reversal of his or her conviction
on appeal and multiple mistrials have been declared. We apply the same analysis
to claims brought under the federal and Ohio Double Jeopardy Clauses because
we have recognized that “ ‘[t]he protections afforded by the two Double Jeopardy
Clauses are coextensive.’ ” State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593,
903 N.E.2d 284, ¶ 14, quoting State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-
6661, 780 N.E.2d 250, ¶ 7.
        {¶ 32} The state is entitled to retry a defendant when a trial court has
declared a mistrial after the jury failed to reach a verdict. Richardson, 468 U.S. at
326, 104 S.Ct. 3081, 82 L.Ed.2d 242; State v. Lovejoy, 79 Ohio St.3d 440, 445-
446, 683 N.E.2d 1112 (1997). “Our society * * * retains a genuine interest in
making certain that the guilty are punished.” State v. Widner, 68 Ohio St.2d 188,
192, 429 N.E.2d 1065 (1981). However, when a mistrial was “instigated by
prosecutorial misconduct designed to provoke [the] mistrial,” retrial is barred by




                                         9
                             SUPREME COURT OF OHIO




double jeopardy. State v. Glover, 35 Ohio St.3d 18, 517 N.E.2d 900 (1988),
syllabus; see also Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 72
L.Ed.2d 416 (1982) (double jeopardy bars retrial if the prosecutor has engaged in
misconduct intended to “goad” the defense into moving for a mistrial); Green v.
United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (“a
prosecutor or judge [is prohibited] from subjecting a defendant to a second
prosecution by discontinuing the trial when it appears that the jury might not
convict”).
       {¶ 33} Moreover, the federal and Ohio Double Jeopardy Clauses generally
are not offended when the state retries a defendant after a conviction is reversed
on appeal. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, at
syllabus; see also United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 12
L.Ed.2d 448 (1964) (it is a “well-established part of our constitutional
jurisprudence” that the Double Jeopardy Clause does not bar a retrial after a
reversal on appeal). But if a conviction is reversed on appeal because “the state
fails to present sufficient evidence to prove every element of the crime,” then the
state “should not get a second opportunity to do that which it failed to do the first
time.” Lovejoy at 450.
       {¶ 34} Anderson argues, however, that it is the cumulative effect of the
reversal of his first conviction on appeal and the numerous mistrials during the
past 14 years that offends fair play and is “itself a constitutional violation.” But
Anderson has not pointed to anything in the text or history of the federal or Ohio
Double Jeopardy Clauses or the precedents interpreting them that supports his
position. Moreover, Anderson has not identified any other similar case in which a
court dismissed, on double-jeopardy grounds, an indictment after the reversal of a
conviction on appeal coupled with multiple mistrials. Instead, Anderson relies on
a series of decisions that are readily distinguishable from this case.




                                          10
                                January Term, 2016




        {¶ 35} In United States v. Ingram, when a mistrial was declared after the
jury failed to reach a verdict at a defendant’s second trial, the trial court sua
sponte dismissed the indictment without objection by the government.              412
F.Supp. 384 (D.D.C.1976).       Nearly one month later, the government filed a
motion for reconsideration. In denying the government’s motion, the court noted
that “[t]his is, of course, not a case of double jeopardy. * * * It is simply a matter
of fair play.” Id. at 385. In support of its decision, the court stated that when “a
substantial majority of the jury members” “disagree so conclusively when not
even faced with conflicts in the proof,” there is reasonable doubt. Id. at 386.
        {¶ 36} In State v. Moriwake, the Supreme Court of Hawaii held that the
federal Double Jeopardy Clause “did not mandate dismissal” of the defendant’s
indictment after a series of mistrials. 65 Haw. 47, 54, 647 P.2d 705 (1982).
However, the court determined, the indictment could be dismissed on the basis of
the court’s inherent judicial power under the Hawaii Constitution. Id. at 55.
        {¶ 37} In State v. Abbati, the New Jersey Supreme Court disclaimed
reliance on the Double Jeopardy Clause when it reversed and remanded an order
of the trial court dismissing an indictment after two mistrials. 99 N.J. 418, 425-
427, 493 A.2d 513 (1985). Instead, the court created a multifactor test relying on
its inherent judicial authority and power over the courts of New Jersey for the
proper administration of criminal justice and ordered the trial court to apply that
test on remand. Id. at 432-436.
        {¶ 38} Anderson has not argued that the trial court erred in failing to
dismiss the indictment because the evidence is insufficient. Nor has he identified
any independent provision of the federal or Ohio Constitution or of Ohio law that
would give this court authority to dismiss an indictment under these
circumstances. Anderson’s exclusive argument rests on the cumulative effect of
the retrials.




                                         11
                             SUPREME COURT OF OHIO




       {¶ 39} While this is an issue of first impression for us, our sister court to
the north has examined a case in which a defendant moved to dismiss the charges
after he was brought to trial for a third time after two mistrials. See People v.
Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998). In Sierb, the defendant
conceded that the Double Jeopardy Clause did not bar his third trial. Id. at 522,
fn.6. Instead, Sierb argued that a third trial would violate his substantive due-
process rights. The Michigan Supreme Court rejected this “general claim of
governmental unfairness” because Sierb could not explain why three trials were
unconstitutional but two trials were not. Id. at 530-531.
       {¶ 40} The Second Circuit Court of Appeals has also examined whether a
defendant may be retried following multiple mistrials.         In United States v.
Castellanos, 478 F.2d 749 (2d Cir.1973), the trial court had dismissed an
indictment on double-jeopardy grounds because two prior trials had ended in a
mistrial after each jury failed to reach a verdict. In reversing the trial court, the
Second Circuit held that the Double Jeopardy Clause did not bar the government
from retrying the defendant because each mistrial was properly declared. Id. at
752.
       {¶ 41} These holdings of the Michigan Supreme Court and the Second
Circuit are consistent with the United States Supreme Court’s holding in United
States v. Perez, 22 U.S. 579, 580, 6 L.Ed. 165 (1824), “the fountainhead decision
construing the Double Jeopardy Clause in the context of a declaration of a mistrial
over a defendant’s objection,” Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct.
1066, 35 L.Ed.2d 425 (1973). In Perez, the Supreme Court held that a defendant
may be retried when the defendant “has not been convicted or acquitted.” Perez
at 580. The court reasoned that “the law has invested Courts of justice with the
authority to discharge a jury from giving any verdict” and declare a mistrial when
“taking all the circumstances into consideration, there is a manifest necessity for
the act, or the ends of public justice would otherwise be defeated.” Id. In




                                         12
                                January Term, 2016




reaching that determination, a court should “exercise * * * sound discretion on the
subject,” and “the power ought to be used with the greatest caution, under urgent
circumstances.” Id.
        {¶ 42} The central holding of Perez is that a conviction or acquittal creates
a final result, which in turn triggers the protections of the Double Jeopardy
Clause. Where there is no finality, there can be no double-jeopardy violation.
The only caveat in Perez is that the trial court must have properly declared the
mistrial.
        {¶ 43} Anderson does not argue that any of the mistrials declared in his
case constituted an abuse of discretion. Moreover, there is nothing in the record
to suggest that Anderson objected to the trial court’s sua sponte declaration of a
mistrial or that Anderson requested that the court further instruct the jury and
order the jury to resume deliberations. Undisputedly, a final result was never
achieved. Anderson’s sole argument rests on the length of time the process has
taken and the fact that he has been incarcerated the entire time.
        {¶ 44} However, Anderson’s continued incarceration is a result of his
inability to post the required bond set by the trial court. The question of whether
that bond is appropriate, under these circumstances, is not before us.
        {¶ 45} While we are deeply troubled that a final resolution in this case has
not been reached, there is no prohibition in the federal or Ohio Double Jeopardy
Clauses that bars a defendant’s retrial after several mistrials have been declared.
A double-jeopardy review is triggered only when a final resolution has been
made, and that has not occurred here.
                                  IV. Conclusion
        {¶ 46} We conclude that a double-jeopardy challenge to the retrial of a
defendant following a mistrial is analyzed under the Double Jeopardy Clause
rather than the more general Due Process Clause. We further conclude that the
Double Jeopardy Clause is not offended when the state seeks to retry a defendant




                                         13
                              SUPREME COURT OF OHIO




after a series of properly declared mistrials. Therefore, we affirm the judgment of
the court of appeals, albeit on different grounds, and remand the matter to the trial
court.
                                                                  Judgment affirmed
                                                                and cause remanded.
         O’DONNELL and FRENCH, JJ., concur.
         O’CONNOR, C.J., concurs in judgment only.
         LANZINGER, J., concurs in judgment only, with an opinion joined by
PFEIFER, J.
         O’NEILL, J., dissents.
                                  _________________
         LANZINGER, J., concurring in judgment only.
         {¶ 47} Although I agree that the judgment of the court of appeals should
be affirmed, I respectfully disagree with the reasoning of the plurality opinion and
therefore concur in judgment only.
         {¶ 48} In rejecting the application of due-process considerations in favor
of an analysis limited to double-jeopardy considerations, the plurality cites this
court’s previous decisions holding that the Due Course of Law Clause of the Ohio
Constitution, Section 16, Article I, is coextensive with the Due Process Clause of
the Fourteenth Amendment to the United States Constitution. Plurality opinion at
¶ 21. But we have also held that “[t]he Ohio Constitution is a document of
independent force.” Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163
(1993), paragraph one of the syllabus. This court has the ability to recognize
enhanced due-process protections contained within Section 16, Article I of the
Ohio Constitution. “As long as state courts provide at least as much protection as
the United States Supreme Court has provided in its interpretation of the federal
Bill of Rights, state courts are unrestricted in according greater civil liberties and
protections to individuals and groups.” Id.




                                         14
                                January Term, 2016




          {¶ 49} In recent years, we have been receptive to the argument that the
Ohio Constitution provides enhanced protections. In In re A.G., ___ Ohio St.3d
___, 2016-Ohio-3306, __ N.E.3d ___, for example, we held that juveniles receive
double-jeopardy protections that go beyond those provided by the United States
Constitution. Id. at ¶ 12-13. In my view, the Ohio Constitution can indeed
provide due-process protection that exceeds that which is provided by the United
States Constitution.
          {¶ 50} I do not agree that the due-process claim raised by appellant,
Christopher Anderson, is nothing more than a double-jeopardy claim in different
clothing. Double-jeopardy protections guard against three potential 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.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892, ¶ 10, citing 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).
          {¶ 51} Anderson does not contend that his indictment should be dismissed
solely because he has been subjected to multiple trials for the same alleged
offense. He argues that the cumulative effect of these drawn-out abortive trials
placed him in a position where he cannot effectively defend his liberty and that
this prosecution has reached a point where yet another trial is fundamentally
unfair.
          {¶ 52} It has been 14 years since Anderson was indicted for murder in
violation of R.C. 2903.02, an offense subject to a mandatory prison sentence of 15
years to life, see R.C. 2929.02(B). If Anderson’s trial were to be held tomorrow,
he would presumably receive credit for time served and, as unusual as it may
sound, he would be eligible for parole a relatively short time after his conviction.
This is an extraordinary situation. On the one hand, Anderson is charged with a




                                         15
                             SUPREME COURT OF OHIO




horrific crime, and the public and the victim’s loved ones certainly have an
interest in seeing justice served in this case. On the other hand, Anderson remains
unconvicted of that crime, and his 14 years of continued incarceration seems to
violate his fundamental interest in personal liberty.
       {¶ 53} Nevertheless, despite the continuing delays in this case (some of
which Anderson concedes he initiated), it cannot be argued that Anderson has
been incarcerated in excess of the mandatory period of time that he would receive
if he were actually convicted. That, to me, would violate fundamental fairness.
Thus, I would grant the motion to dismiss the indictment on due-process grounds
only if he had already served the maximum prison term that could have been
imposed for a conviction on the offense for which he was indicted.
       {¶ 54} While I would hold that the facts of this case do not compel a
conclusion that Anderson is entitled to have his motion to dismiss the indictment
granted, I do not agree with the plurality that the Due Course of Law Clause of
the Ohio Constitution provides no protection to defendants who are incarcerated
for unfair and excessive lengths of time without having been convicted of a crime.
       {¶ 55} I accordingly concur in judgment only.
       PFEIFER, J., concurs in the foregoing opinion.
                               _________________
       Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera, Assistant Prosecuting Attorney, for appellee.
       John B. Juhasz, for appellant.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, and Sarah Leatherman, Assistant
Attorney General, urging affirmance for amicus curiae, Ohio Attorney General
Michael DeWine.
                               _________________




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