[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Soto, Slip Opinion No. 2019-Ohio-4430.]




                                           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. 2019-OHIO-4430
               THE STATE OF OHIO, APPELLANT, v. SOTO, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State v. Soto, Slip Opinion No. 2019-Ohio-4430.]
Criminal law—Double jeopardy—Double Jeopardy Clauses do not bar murder
        prosecution of defendant whose prior involuntary-manslaughter charge
        was dismissed under plea agreement—Court of appeals’ judgment
        reversing trial court’s denial of defendant’s motion to dismiss reversed and
        cause remanded.
    (No. 2018-0416—Submitted March 6, 2019—Decided October 31, 2019.)
       APPEAL from the Court of Appeals for Putnam County, No. 12-17-05,
                                       2018-Ohio-459.
                                    _________________
        DEWINE, J.
        {¶ 1} In 2006, a two-year-old boy was killed. At the time, his father, Travis
Soto, told police that he had accidentally caused the boy’s death while driving an
ATV. Soto was charged with child endangering and involuntary manslaughter. He
                             SUPREME COURT OF OHIO




entered into a plea agreement whereby he pleaded guilty to child endangering and
the other charge was dismissed. He served his time in prison. That might have
been the end of the story.
       {¶ 2} But several years after his release, Soto told authorities that his
previous account was a lie. The truth, he said, was that he had beaten his son to
death. The state then charged Soto with murder and aggravated murder, among
other offenses. We now must decide whether the constitutional prohibition against
double jeopardy bars the murder charges.
       {¶ 3} We hold that because the involuntary-manslaughter charge was
dismissed prior to the empaneling of a jury, jeopardy never attached to that charge.
Because of this, the double-jeopardy prohibition does not prevent the state from
prosecuting Soto for murder or aggravated murder. For that reason, we reverse the
judgment of the Third District Court of Appeals.
                               I. BACKGROUND
       {¶ 4} As recounted by both parties, the relevant facts are as follows. In
January 2006, Soto’s son, Julio, was killed. Based on Soto’s statements at the time,
authorities believed that the child had died in a tragic ATV accident.
       {¶ 5} In 2006, Soto gave authorities two different stories about what had
happened. Initially, Soto told investigators that he had accidentally run over Julio
with an ATV after turning a corner around a building on his property. Later, Soto
told authorities that Julio had been riding with Soto on the vehicle and was struck
after he fell off. The Lucas County Coroner’s Office conducted an autopsy and
concluded that Julio’s injuries were consistent with an ATV accident.
       {¶ 6} After being charged with child endangering under R.C. 2919.22(A)
and involuntary manslaughter under R.C. 2903.04(A), Soto negotiated a plea
agreement.    He pleaded guilty to child endangering, and the involuntary-
manslaughter charge was dismissed. Soto was sentenced to five years in prison,
which he served.




                                         2
                                January Term, 2019




       {¶ 7} But it turns out that Julio’s death may not have been accidental. In
July 2016, Soto went to the Putnam County Sheriff’s Office and confessed that he
had beaten the child to death and fabricated the ATV accident.             A doctor
specializing in pediatric abuse reviewed the 2006 autopsy report and photographs
taken at the time and concluded that the child’s injuries were consistent with Soto’s
more recent story. Specifically, the doctor pointed to the fact that there were no
bone fractures, which would normally be expected in an ATV accident. Authorities
then indicted Soto for aggravated murder, murder, felonious assault, kidnapping,
and tampering with evidence.
       {¶ 8} In October 2016, Soto filed a motion to dismiss the murder charges.
The motion argued that the charges were barred by the Fifth Amendment’s
prohibition against a person being “twice put in jeopardy of life or limb.” Fifth
Amendment to the U.S. Constitution. He asserted that involuntary manslaughter is
a lesser included offense of murder and aggravated murder and that the state is
therefore barred from prosecuting those charges.
       {¶ 9} The trial court denied the motion, concluding that the double-jeopardy
protection does not bar Soto’s prosecution for murder and aggravated murder. The
court reasoned that under the test set forth in Blockburger v. United States,
involuntary manslaughter with a child-endangering predicate is not the same
offense as murder with a felonious-assault predicate. See 284 U.S. 299, 52 S.Ct.
180, 76 L.Ed. 306 (1932).
       {¶ 10} Soto filed an interlocutory appeal of the trial court’s denial of his
motion to dismiss—a procedural step that was appropriate based on this court’s
decision in State v. Anderson, which allowed an interlocutory appeal of a denial of
a motion to dismiss on double-jeopardy grounds. 138 Ohio St.3d 264, 2014-Ohio-
542, 6 N.E.3d 23, ¶ 26; see also Abney v. United States, 431 U.S. 651, 659, 97 S.Ct.
2034, 52 L.Ed.2d 651 (1977). Soto asserted a single assignment of error in his




                                         3
                                SUPREME COURT OF OHIO




appeal: “The trial court erred [in] over[ruling] Defendant’s Motion to Dismiss on
Double Jeopardy Grounds.”
        {¶ 11} In a two-to-one decision, the court of appeals reversed the trial
court’s denial of Soto’s motion to dismiss. The majority concluded that “because
Involuntary Manslaughter constitutes a lesser included offense of Aggravated
Murder and Murder, the principles of Double Jeopardy would prevent a subsequent
prosecution of Soto for Aggravated Murder and Murder in this instance.” 2018-
Ohio-459, 94 N.E.3d 618, ¶ 34. The majority noted that although Soto was not
convicted of involuntary manslaughter, “he was in jeopardy of being tried and
convicted of Involuntary Manslaughter but-for the plea agreement.” Id. at ¶ 22.
Writing in dissent, Judge Zimmerman argued that because the involuntary-
manslaughter charge had been dismissed, jeopardy had not attached to that charge.
Id. at ¶ 38 (Zimmerman, J., dissenting). The dissenting opinion therefore concluded
that double-jeopardy principles do not bar Soto’s prosecution for murder and
aggravated murder. As explained below, Judge Zimmerman was right.
                                      II. ANALYSIS
         A. Double-Jeopardy Principles Do Not Bar Soto’s Prosecution
        {¶ 12} The Fifth Amendment to the United States Constitution guarantees
that no person shall “be subject for the same offence to be twice put in jeopardy of
life or limb.” The Ohio Constitution contains a similarly worded guarantee: “No
person shall be twice put in jeopardy for the same offense.” Ohio Constitution,
Article I, Section 10.1 We have read these provisions to protect against three
distinct wrongs: “(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. Gustafson, 76 Ohio St.3d 425, 432,


1. In the past, we have treated the two guarantees as “coextensive.” State v. Gustafson, 76 Ohio
St.3d 425, 432, 668 N.E.2d 435 (1996). Because neither party has presented a contrary argument,
we have no opportunity to revisit that determination today.




                                               4
                                January Term, 2019




668 N.E.2d 435 (1996), citing United States v. Halper, 490 U.S. 435, 440, 109 S.Ct.
1892, 104 L.Ed.2d 487 (1989).
       {¶ 13} The court of appeals determined that the first protection—preventing
a second prosecution for the same offense following an acquittal—was violated
here because Soto had been indicted for involuntary manslaughter in 2006 and was
now facing prosecution for murder and aggravated murder. Treating the dismissal
of the involuntary-manslaughter charge as an acquittal, the court concluded that
further prosecution of Soto violated the Double Jeopardy Clauses because under
the test set forth in Blockburger, murder and aggravated murder constitute the same
offense as involuntary manslaughter. But a dismissal is not equivalent to an
acquittal. By their plain terms, the Double Jeopardy Clauses apply only when
someone would be “twice put in jeopardy.” Because Soto was never put in jeopardy
for the dismissed 2006 involuntary-manslaughter charge, the Double Jeopardy
Clauses do not bar his subsequent prosecution for murder and aggravated murder.
       {¶ 14} Because the involuntary-manslaughter charge was dismissed under
his plea agreement, Soto was never tried for involuntary manslaughter nor was he
convicted of or punished for that crime. In treating the dismissal of the involuntary-
manslaughter charge as an acquittal, the court of appeals ignored the principle that
a dismissal entered before jeopardy attaches does not function as an acquittal and
does not prevent further prosecution for the offense. See C.K. v. State, 145 Ohio
St.3d 322, 2015-Ohio-3421, 49 N.E.3d 1218, ¶ 15; Bucolo v. Adkins, 424 U.S. 641,
642, 96 S.Ct. 1086, 47 L.Ed.2d 301 (1976).
       {¶ 15} The dissent advances the novel proposition that double jeopardy
attaches to a charge dismissed under a plea agreement—here, the involuntary-
manslaughter charge. In support of this view, the dissent points to cases holding
that jeopardy attaches when a court accepts a guilty plea. Dissenting opinion at
¶ 37-38. Of course, that’s true. But what the dissent neglects to mention is that the
principle applies only to the charges to which a defendant pleads guilty. See, e.g.,




                                          5
                                   SUPREME COURT OF OHIO




United States v. Soto-Alvarez, 958 F.2d 473, 482 (1st Cir.1992), fn. 7 (“jeopardy
ordinarily does not attach to counts which are dismissed and on which no finding
of guilty is made”); United States v. Dionisio, 503 F.3d 78, 89 (2d Cir.2007)
(holding that jeopardy did not attach to charges that were dismissed with prejudice
under a plea agreement, when the dismissal did not entail a “resolution of any
factual elements that went to the merits of the charges”). Tellingly, the dissent does
not cite a single case adopting its view that double jeopardy applies to a charge, like
the one at issue here, that was dismissed under a plea agreement before being put
to a trier of fact.2
          {¶ 16} It is axiomatic that when a charge is dismissed before jeopardy
attaches, the double-jeopardy protections do not prevent subsequent prosecution for
the dismissed charge. See C.K. at ¶ 15; State v. Grillo, 2015-Ohio-308, 27 N.E.3d
951, ¶ 25 (5th Dist.). For charges to which the defendant did not plead guilty,
jeopardy does not attach until a jury is empaneled or, in a bench trial, when the
judge starts taking evidence. Gustafson, 76 Ohio St.3d at 435, 668 N.E.2d 435.
Because Soto entered his guilty plea prior to the empaneling of a jury or the taking
of evidence, jeopardy attached—but only as to the child-endangering charge to
which he pleaded guilty and not as to the dismissed involuntary-manslaughter
charge.
          {¶ 17} Soto has not argued that child endangering constitutes the same
offense as murder and aggravated murder. And for good reason—under the
Blockburger test, it is plain that the child-endangering charge does not constitute
the same offense as the murder charges, because each of the murder offenses
contains an element not found in child endangering and child endangering contains
an element not found in the murder offenses. As a result, the Double Jeopardy
Clauses do not bar Soto’s prosecution for murder and aggravated murder.

2. The dissent attempts to enlist Dionisio in support of its novel view, but in Dionisio, the court held
that jeopardy did not attach to charges dismissed under a plea agreement.




                                                   6
                                January Term, 2019




 B. We Dismiss as Improvidently Accepted the Proposition of Law Relating
                            to Soto’s Plea Agreement
       {¶ 18} We accepted three propositions of law in this case. The first two
challenge the court of appeals’ conclusion that Soto’s prosecution is barred by the
constitutional double-jeopardy protections. The third asserts: “A negotiated plea
does not bar successive prosecutions where the defendant would not reasonably
believe that his or her plea would bar further prosecutions for any greater offense
related to the same factual scenario.”
       {¶ 19} This third proposition of law relates not to the constitutional double-
jeopardy protection but, rather, to a claim for relief based on the contents of Soto’s
plea agreement. See, e.g., State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939
N.E.2d 1217, ¶ 22. Separate and apart from the constitutional protections provided
by the double-jeopardy provisions, a plea agreement may bar further charges based
on principles of contract law. Id. at ¶ 21. The underlying premise is that when a
plea rests on a promise made by the prosecutor, that promise must be fulfilled.
Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971);
see also State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150,
¶ 50. The rule is “based on contract-law principles, not the Double Jeopardy Clause
of the Fifth Amendment to the United States Constitution.” Dye at ¶ 20, fn. 2.
       {¶ 20} Upon reflection, we dismiss the third proposition of law as having
been improvidently accepted. In doing so, we note that Soto did not raise a claim
related to the content of his plea agreement in the trial court—rather, he sought
relief there based solely on the constitutional prohibition against double jeopardy.
Further, Soto did not raise an assignment of error identifying the plea agreement as
a basis for relief in the court of appeals. And while the court of appeals did discuss
the negotiated plea generally, it did so in the context of the constitutional double-




                                          7
                                 SUPREME COURT OF OHIO




jeopardy prohibition and did not consider the plea agreement as a separate basis for
relief. Thus, the issue is not properly before us.3
        {¶ 21} The dissent conflates the contractual-plea-agreement argument with
the separate double-jeopardy argument and is eager to hold that the agreement bars
the present charges against Soto. Dissenting opinion at ¶ 54. The dissent also
asserts that under our analysis, “no plea bargain is necessarily conclusive and any
plea agreement can be negated.” Id. at ¶ 53. But this misconstrues our holding.
We take no view about whether Soto’s plea agreement might serve as a bar to the
murder charges. Soto did not present a plea-agreement claim to the trial court, and
the agreement was never put into the record. Nor did he raise an assignment of
error relating to the plea agreement in the court of appeals. It would be improper
for us to reach that issue under the present procedural posture of the case. Further,
to do so would require us to speculate about the contents of a plea agreement that
is found nowhere in the record before us.
                                    III. CONCLUSION
        {¶ 22} We reverse the court of appeals’ judgment and remand to the trial
court for further proceedings consistent with this opinion.
                                                                           Judgment reversed
                                                                         and cause remanded.
        O’CONNOR, C.J., and KENNEDY, FRENCH, and FISCHER, JJ., concur.
        STEWART, J., concurs in judgment only.
        DONNELLY, J., dissents, with an opinion.
                                    _________________


3. We further note that this court has never addressed whether an interlocutory appeal may be
brought based on the denial of a motion to dismiss on the basis of a plea agreement (as opposed to
the constitutional double-jeopardy prohibition). Compare State v. Anderson, 8th Dist. Cuyahoga
No. 106304, 2018-Ohio-3051 (allowing interlocutory appeal) with State v. Ammons, 9th Dist.
Summit No. 28675, 2019-Ohio-286 (concluding that that issue was not ripe for review in an
interlocutory appeal). We have no occasion to do so today, because Soto never sought an
interlocutory appeal on that basis.




                                                8
                                      January Term, 2019




         DONNELLY, J., dissenting.
         {¶ 23} The constitutional prohibition against double jeopardy bars appellee
Travis Soto’s prosecution for murder and aggravated murder; because the majority
concludes otherwise, I respectfully dissent. I would affirm the judgment of the
court of appeals.
                                       BACKGROUND4
         {¶ 24} On January 23, 2006, Travis Soto’s two-year-old son, Julio, was
found dead. Julio was in Soto’s care that day. When questioned by the police, Soto
told two separate versions of how Julio had died. First, Soto explained that he had
accidently run over Julio with his all-terrain vehicle (“ATV”) after turning a corner
around a building on his property. Later, Soto told authorities that Julio had been
riding on the ATV and was struck by the ATV after he fell off it. Soto told the
detectives that he had carried Julio inside the house, cleaned him, rocked him until
he stopped crying, and put him to bed. Soto did not call 9-1-1 or attempt to get any
medical care for Julio. Two or three hours later, when Julio’s mother returned
home, Soto informed her that Julio had died.
         {¶ 25} Based on Soto’s explanations, an autopsy was conducted, and it was
concluded that Julio’s injuries were consistent with an ATV accident.
         {¶ 26} On March 31, 2006, a grand jury returned a two-count indictment
against Soto for causing the death of his son. Count one charged a violation of R.C.
2903.04(A), involuntary manslaughter, for causing the death of another as a
proximate result of committing or attempting to commit a felony, and count two
charged a violation of R.C. 2919.22(A) and (E)(1)(c), child endangering. On
August 31, 2006, the trial court accepted a negotiated plea agreement between the
state and Soto whereby in exchange for his guilty plea to child endangering, the




4. The facts are taken from the representations made by the parties in their respective briefs.




                                                  9
                                  SUPREME COURT OF OHIO




state dismissed the involuntary-manslaughter charge. The court sentenced Soto to
five years in prison.
         {¶ 27} On July 25, 2016, several years after he was released from prison,
Soto went to the authorities and gave a third version of Julio’s death.5 In this
account, Soto said that he had beaten Julio to death and fabricated the ATV
accident.    A pediatric-abuse specialist reviewed the 2006 autopsy report and
photographs taken at the time and concluded that Julio’s injuries were consistent
with Soto’s new version of the facts. Armed with this new version, the state quickly
went back to the grand jury.
         {¶ 28} On August 15, 2016, the state again indicted Soto for causing the
death of his son. This time, the state charged Soto with aggravated murder, in
violation of R.C. 2903.01(C), for purposely causing the death of another under the
age of 13; murder, in violation of R.C. 2903.02(B), for causing the death of another
as a proximate result of committing or attempting to commit a felony of the first or
second degree that is an offense of violence; felonious assault, in violation of R.C.
2903.11(A)(1); kidnapping in violation of R.C. 2905.01; and tampering with
evidence in violation of R.C. 2921.12(A)(1).
         {¶ 29} On October 11, 2016, Soto filed a motion to dismiss the murder and
aggravated-murder charges based on the constitutional prohibition against double
jeopardy.     Soto argued that involuntary manslaughter (which was the charge
dismissed by agreement in 2006 when he pleaded guilty to child endangering) is a
lesser included offense of both murder and aggravated murder (which were charged
in 2016) and that the plea agreement therefore precludes his subsequent prosecution
on these greater charges. The state responded by arguing that the involuntary-



5. At a competency hearing, a psychiatrist and a psychologist each testified that Soto had indicated
he had begun experiencing auditory hallucinations, that these voices were telling him that he had
killed his son, and that Soto had gone to the police and given this third account because of these
voices.




                                                10
                                January Term, 2019




manslaughter charge was not the same offense as murder and aggravated murder
for purposes of a double-jeopardy analysis, that despite the state’s due-diligence,
the information necessary to charge Soto with the later charges could not have been
discovered, and that Soto could not have reasonably believed that his negotiated
plea based on his 2006 accounts of Julio’s death would bar Soto’s subsequent
prosecution on greater charges.
        {¶ 30} On April 13, 2017, the trial court denied Soto’s motion to dismiss,
concluding that involuntary manslaughter is not the same offense as murder and
aggravated murder for double-jeopardy purposes; that even if they were the same
offenses under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.
306 (1932), the information necessary to support the later charges could not have
been discovered despite the state’s exercise of due diligence; and that Soto could
not have reasonably believed that his 2006 negotiated plea to child endangering and
the 2006 dismissal of the involuntary-manslaughter charge based on his initial
accounts of Julio’s death would bar Soto’s subsequent prosecution on the greater
charges based on newly discovered evidence that would transform the case from
one of an accidental death to a purposeful homicide.
        {¶ 31} Soto filed an interlocutory appeal, and the Third District Court of
Appeals reversed the trial court’s judgment. In a two-to-one decision, the Third
District determined that involuntary manslaughter, murder, and aggravated murder
are the same offenses under the Double Jeopardy Clauses; that the due-diligence
exception does not apply, because the state had failed to conduct a full and complete
investigation and instead relied on Soto’s purported confession; and that State v.
Carpenter, 68 Ohio St.3d 59, 623 N.E.2d 66 (1993), bars Soto’s subsequent
indictment for aggravated murder and murder because at the time of the plea
agreement, the state failed to reserve the right to bring additional charges against
Soto.   The dissenting opinion made the assumption that the state nolled the
involuntary-manslaughter charge before jeopardy attached (i.e., prior to swearing




                                         11
                                  SUPREME COURT OF OHIO




in a jury or the first witness) and that the nolle of the involuntary-manslaughter
charge therefore neither operated as an acquittal nor prevented Soto’s further
prosecution for that offense. Accordingly, the dissent concluded that Soto could be
tried on the murder and aggravated-murder charges.
                                          ANALYSIS
                                       Majority opinion
         {¶ 32} The majority determines that the issue before this court is “whether
the constitutional prohibition against double jeopardy bars the murder charges.”
Majority opinion at ¶ 2. In resolving that issue, the majority holds that because the
involuntary-manslaughter charge was dismissed prior to empanelment of a jury,
jeopardy never attached to the charge and therefore, the double-jeopardy
prohibition does not prevent the state from prosecuting Soto for murder or
aggravated murder.
         {¶ 33} In framing the issue, the majority ignores the procedural nature of
the case and stops short of answering the actual question before us. The issue to be
addressed is whether the constitutional prohibition against double jeopardy bars
murder charges when the lesser included offense of involuntary manslaughter has
been dismissed as a result of a negotiated plea agreement. Given the actual
question before us, I believe that the majority’s determination that double jeopardy
did not attach because the lesser included offense was dismissed before a jury was
empaneled is irrelevant, as explained below.
                                 Double Jeopardy Clauses6
         {¶ 34} The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution provides that no person shall “be subject for the same offence


6. The state’s third proposition of law presents a separate theory for reversal based on contract-law
principles, asserting that Soto could not have reasonably expected based on his plea agreement that
he would not face future prosecution for greater offenses relating to the death of his son. My
disagreement with the majority centers instead on its interpretation of the Double Jeopardy Clauses
as applied to a conviction entered by way of a guilty plea.




                                                 12
                                  January Term, 2019




to be twice put in jeopardy of life or limb.” The Ohio Constitution conveys a similar
guarantee: “No person shall be twice put in jeopardy for the same offense.” Ohio
Constitution, Article I, Section 10.
       {¶ 35} The Double Jeopardy Clause serves the fundamental policy of
protecting a defendant’s finality interest so that a defendant will not be subject to
the state’s attempts to relitigate the facts or secure additional punishment after a
conviction and sentence. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075,
47 L.Ed.2d 267 (1976). “What lies at the heart of the Double Jeopardy Clause is
the prohibition against multiple prosecutions for ‘the same offense.’ ” Jeffers v.
United States, 432 U.S. 137, 150, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) (plurality
opinion), quoting the Fifth Amendment. The clause provides critical protections
against (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). “Where successive prosecutions are
at stake, the guarantee serves ‘a constitutional policy of finality for the defendant’s
benefit.’ ” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187
(1977), quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d
543 (1971) (plurality opinion).
       {¶ 36} The majority says that jeopardy did not attach to the lesser included
offense of involuntary manslaughter, based on the facts that a jury was not sworn
in and evidence was not taken by the trial court. Those facts are true—and beside
the point. Here, Soto’s fate was not decided by a jury or bench trial. Instead, Soto’s
criminal case was resolved by a guilty plea. And that is what a guilty plea does: it
waives a jury trial and eliminates the taking of evidence at a bench trial. Crim.R.
11(B) and (C).




                                          13
                                   SUPREME COURT OF OHIO




         {¶ 37} In State v. Gustafson, a case cited by the majority, this court
recognized that jeopardy attaches, so as to preclude subsequent criminal
proceedings, at different points in time depending on the nature of the proceeding
in question. 76 Ohio St.3d 425, 435, 668 N.E.2d 435 (1996). And although
jeopardy attaches when a jury is empaneled and sworn in or the court begins to hear
evidence at a bench trial, a different rule applies when the defendant has elected not
to proceed to trial. See United States v. McIntosh, 580 F.3d 1222, 1224 (11th
Cir.2009). In that situation, jeopardy attaches when the court unconditionally
accepts a guilty plea. Id.; United States v. Sanchez, 609 F.2d 761, 762 (5th
Cir.1980).7
         {¶ 38} As explained in McIntosh, “[t]he acceptance of an unconditional
plea ‘is itself a conviction. Like a verdict of a jury it is conclusive. More is not
required; the court has nothing to do but give judgment and sentence.’ ” Id. at 1228,
quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009
(1927); see also United States v. Cambindo Valencia, 609 F.2d 603, 637 (2d
Cir.1979) (“The Government makes the rather remarkable argument that, because
a jury was not impaneled in respect to the earlier indictment, jeopardy did not
attach. Of course, however, it is axiomatic of the double jeopardy clause that
jeopardy attached once [the defendant’s] guilty plea was accepted”); United States
v. Ursery, 59 F.3d 568, 572 (6th Cir.1995), rev’d on other grounds, 518 U.S. 267,
116 S.Ct. 2135, 135 L.Ed.2d 549 (1996); Peiffer v. State, 88 S.W.3d 439, 444
(Mo.2002); State v. McAlear, 519 N.W.2d 596, 599 (S.D.1994).
         {¶ 39} The majority cites United States v. Soto-Alvarez, 958 F.2d 473 (1st
Cir.1992), and United States v. Dionisio, 503 F.3d 78 (2d Cir.2007), for the


7. Other courts have held there must be a judgment or sentence before a guilty plea may qualify as
a conviction for purposes of double jeopardy. See, e.g., State v. Stone, 400 P.3d 692, ¶ 25 (Mt.2017).
Although the United States Supreme Court has yet to decide when jeopardy attaches in a guilty-plea
case, it has assumed that jeopardy attaches at least by the time of sentencing on the plea. Ricketts
v. Adamson, 483 U.S. 1, 8, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987).




                                                 14
                                January Term, 2019




proposition that jeopardy attaches only to the charges to which a defendant pleads
guilty. Majority opinion at ¶ 15. However, a closer reading of these decisions is
warranted.
       {¶ 40} First, Soto-Alvarez offers no analysis to support the proposition for
which the majority cites that decision. The proposition was summarily mentioned
in a footnote in which the court stated that it was concerned only “with the two
charges to which the defendant pled guilty since jeopardy ordinarily does not attach
to counts which are dismissed and on which no finding of guilty is made.” Soto-
Alvarez at 482, fn. 7. The absence of analysis in Soto-Alvarez undermines its
persuasive value here.
       {¶ 41} Dionisio actually supports the conclusion that jeopardy attached in
this case. In that case, the Second Circuit rejected the district court’s categorical
ruling that a pretrial dismissal with prejudice cannot trigger the attachment of
jeopardy. Dionisio at 82. The appellate court recognized that it is not necessary to
have an actual acquittal or conviction to trigger double jeopardy, noting that “[w]hat
is crucial, instead, is whether the defendant faced the risk of a determination of
guilt, and this may well include exposure to risk of conviction in a pretrial plea
proceeding.” Id. at 83.
       {¶ 42} Here, Soto faced exposure to the risk of convictions for both
involuntary manslaughter and child endangering as charged in the indictment. In
exchange for an agreement to plead guilty to child endangering, the state agreed to
drop the involuntary-manslaughter charge. But for the state’s agreement to drop
the involuntary-manslaughter charge, Soto unquestionably faced the risk of a
determination of guilt on the involuntary-manslaughter charge. Accepting Soto’s
plea, the trial court conclusively determined his criminal culpability for purposes
of double jeopardy.
       {¶ 43} The majority cites C.K. v. State, 145 Ohio St.3d 322, 2015-Ohio-
3421, 49 N.E.3d 1218, and Bucolo v. Adkins, 424 U.S. 641, 96 S.Ct. 1086, 47




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L.Ed.2d 301 (1976), for the principle that a dismissal entered before jeopardy
attaches does not function as an acquittal and does not prevent further prosecution
for the offense. Although these cases may support that principle, they are easily
distinguishable from this case.
       {¶ 44} In C.K., the defendant was seeking to be declared a wrongfully
imprisoned individual as defined in R.C. 2743.48 because his murder conviction
had been reversed as against the manifest weight of the evidence and the state had
dismissed the indictment without prejudice. In determining that C.K. could not
establish he was a wrongfully imprisoned individual pursuant to the statute, this
court recognized that a reversal of a conviction as against the manifest weight of
the evidence does not bar retrial on the same charge.
       {¶ 45} Therefore, C.K. simply stands for the proposition that the state has
discretion to dismiss charges without prejudice to allow further investigation of the
underlying crimes and to avoid putting a defendant in jeopardy on evidence of
uncertain credibility. Id. at ¶ 17. That proposition has no relevance here, however,
because the state and trial court accepted the dismissal in simultaneous exchange
for Soto’s pleading guilty to child endangering.
       {¶ 46} Similarly, Bucolo has no application to the facts of this case. In
Bucolo, the petitioners were convicted of publishing certain comic strips and
pictures in violation of a state obscenity statute. The convictions were affirmed on
appeal. The United States Supreme Court summarily reversed. The state then nolle
prossed the charges, but on remand, the Supreme Court of Florida sent the case
back to the trial court “ ‘for further proceedings.’ ” 424 U.S. at 641, 96 S.Ct. 1086,
47 L.Ed.2d 301, quoting Bucolo v. State, 316 So.2d 551 (Fla.1975). The petitioners
then petitioned the United States Supreme Court for a writ of mandamus to prevent
the state from reprosecuting them. It was in this context that the court noted that
recharging the petitioners with violations of the state obscenity statute was clearly
foreclosed and that the state’s failure to give effect to the United States Supreme




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Court’s prior judgment was not cured by the intervening exercise of prosecutorial
discretion. Therefore, the court’s statement in Bucolo that nolle prosequi, if entered
before jeopardy attaches, neither operates as an acquittal nor prevents further
prosecution of the offense, id. at 642, offers no better understanding of the issue
before us.
                                        Soto’s guilty plea
         {¶ 47} When this case was initially investigated, Soto told two different
versions of the cause of his son’s death. This should have raised immediate
concerns about Soto’s credibility. After the child’s death was investigated, the state
assessed what it believed the truth to be and presented charges to the grand jury. A
true bill was returned, and Soto was indicted on two counts: involuntary
manslaughter with a child-endangering predicate offense and child endangering.
At his arraignment, Soto pleaded not guilty to both counts.
         {¶ 48} At that point, the state had accused Soto of committing involuntary
manslaughter and child endangering and the judge assigned to hear the case and
resolve this criminal dispute was operating under the assumption that the state was
prepared to prove the truth of these allegations beyond a reasonable doubt.
         {¶ 49} Soto had a constitutional right to hold the state to its burden and have
a fact-finder (jury or court) decide whether he was guilty beyond a reasonable doubt
of involuntary manslaughter and child endangering. Scott, Plea Bargaining as
Contract, 101 Yale L.J. 1909, 1914 (1992). Instead, Soto and the state chose to
enter into a negotiated plea agreement.8 Under that agreement, the state gave up
the chance to prosecute Soto for involuntary manslaughter or any other type of
murder charge with the same elements in exchange for Soto’s guilty plea. Id. When
Soto’s plea was unconditionally accepted, a record was thereby created that then


8. Although it is true that the record does not contain a transcript of the plea or sentencing hearings
in the 2006 case, the parties do not deny and, in fact, agree that they entered into a negotiated plea
agreement.




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became the “truth” regarding the crime Soto committed resulting in the death of his
son. See Johnson, Fictional Pleas, 94 Ind.L.J. 855, 897 (2019) (a “fictional” guilty
plea creates a record that then becomes “truth” and serves as a permanent record of
conviction).
        {¶ 50} In a negotiated plea agreement, the parties trade various risks and
entitlements. Scott at 1914. When a defendant enters into a plea agreement with
the state, both sides intend that it fully resolve the matter. Chinn, A Deal Is a Deal:
Plea Bargains and Double Jeopardy after Ohio v. Johnson, 37 Seattle U.L.Rev.
286, 301 (2013). The defendant forgoes fundamental constitutional rights (such as
the right to a jury, the presumption of innocence, and the right to be convicted by
proof beyond a reasonable doubt)9 in exchange for the dismissal of some charges,
the hope of a lesser sentence, or both. Scott at 1920; Johnson at 868. The state
gives up prosecuting the defendant for all the charged offenses in exchange for a
quicker, less costly resolution and a sure conviction. Johnson at 868.
        {¶ 51} Here, in entering into the plea agreement, the state did not have to
rely solely on Soto’s questionable versions of the facts. In fact, a prosecutor is
presumed to have done due diligence in conducting an investigation to ensure that
a plea bargain is appropriate. Chinn at 297. Every other litigant in our justice
system is expected to exercise due diligence before taking actions having
conclusive judicial effect. Should the state, with its vast resources, be uniquely
relieved of this responsibility?
        {¶ 52} A plea determines a defendant’s fate with respect to the offenses
arising out of the criminal episode (here, the death of Soto’s son). In this case, the
state obtained a conviction without having to prove beyond a reasonable doubt that
Soto committed the offenses as charged in the 2006 indictment. Soto received the


9. See Duncan v. Louisiana, 391 U.S. 145, 157-158, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Estelle
v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); In re Winship, 397 U.S. 358,
363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).




                                               18
                                January Term, 2019




benefit of having the involuntary-manslaughter charge dropped. The state did not
reserve any right to bring new charges. See Carpenter, 68 Ohio St.3d 59, 623
N.E.2d 66. Although the bargain reached in a plea agreement may not (and often
does not) reflect a defendant’s actual culpability, it does reflect a mutually agreed
resolution.
       {¶ 53} Under the majority’s conclusion, no plea bargain is necessarily
conclusive and any plea agreement can be negated with new information. To accept
this position is to declare that a plea agreement is not worth the paper it is
journalized on.
       {¶ 54} I believe that the court of appeals’ majority opinion got it right. Soto
was charged with involuntary manslaughter in 2006, and that charge was dismissed
pursuant to a plea agreement in which Soto agreed to plead guilty to child
endangering, the predicate offense of the involuntary-manslaughter charge. Thus,
while Soto was not convicted of involuntary manslaughter, he would have been in
jeopardy of being tried and convicted of involuntary manslaughter but for the plea
agreement resulting in his conviction and sentence for the predicate offense of child
endangering. Because involuntary manslaughter is a lesser included offense of
aggravated murder and murder, see State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-
2284, 787 N.E.2d 1185, ¶ 79; State v. Thomas, 40 Ohio St.3d 213, 216, 553 N.E.2d
286 (1988), Soto’s subsequent prosecution for these offenses is barred.
                                 CONCLUSION
       {¶ 55} I would hold that Soto may not be prosecuted for aggravated murder
or murder, because his 2006 plea agreement disposed of the involuntary-
manslaughter charge against him. Accordingly, I would affirm the judgment of the
court of appeals.
                               _________________
       Gary L. Lammers, Putnam County Prosecuting Attorney, for appellant.




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       Timothy Young, Ohio Public Defender, and Carly M. Edelstein, Assistant
Public Defender, for appellee.
       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Christopher D. Schroeder, Assistant Prosecuting Attorney, urging reversal for
amicus curiae, Cuyahoga County Prosecutor’s Office.
                                 _________________




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