Summary
Relying on the conduct analysis set forth in Grady v. Corbin, supra, and the double jeopardy analysis set forth in United States v. Halper, supra, double jeopardy analysis, the court concluded that the labels "civil" and "criminal" are not dispositive and that defendant's thirty-day sentence for violating a "civil" protection order is a criminal punishment, triggering double jeopardy protections
Summary of this case from Westlake v. PatrickOpinion
No. C-90-CRB-33501.
Decided January 31, 1991.
David L. Prem, assistant prosecuting attorney, for the state.
Joseph W. Nienaber, for defendant.
The facts of this case are undisputed. On September 10, 1990, a temporary protection order was issued by the Court of Common Pleas, Division of Domestic Relations, Butler County, Ohio, prohibiting defendant, Phillip Vanselow, from doing certain acts. On September 13, 1990, the defendant went to his wife's place of employment in Hamilton County, Ohio, and was there arrested by police. On September 14, 1990, charges were filed against defendant in both the Butler County Domestic Relations Court, pursuant to R.C. 3113.31, and the Hamilton County Municipal Court, pursuant to R.C. 2919.27, for violating the protection order, both based on the acts committed by defendant at his wife's place of employment.
On September 17, 1990, the defendant was found in contempt by the domestic relations court under R.C. 3113.31 and sentenced to thirty days in jail. This sentence was suspended based upon certain conditions.
The charges pending in this court for a criminal violation of R.C. 2919.27 are at issue. Defendant has moved to dismiss these charges based on the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, and Section 10, Article I of the Ohio Constitution. The question presented is whether the finding of contempt under R.C. 3113.31 will bar the state from prosecuting defendant under R.C. 2919.27.
R.C. 3113.31, in pertinent part, reads as follows:
"(L)(1) A person who violates a protection order issued or a consent agreement approved under this section is subject to the following sanctions:
"(a) Criminal prosecution for a violation of section 2919.27 of the Revised Code, if the violation of the protection order or consent agreement constitutes a violation of that section;
"(b) Punishment for contempt of court.
"(2) The punishment of a person for contempt of court for violation of a protection order issued or a consent agreement approved under this section does not bar criminal prosecution of the person for a violation of section 2919.27 of the Revised Code. However, a person punished for contempt of court is entitled to credit for the punishment imposed upon conviction of a violation of that section, and a person convicted of a violation of that section shall not subsequently be punished for contempt of court arising out of the same activity."
R.C. 2919.27, in pertinent part, reads as follows:
"(A) No person shall recklessly violate any terms of a protection order issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the Revised Code."
Under the above provisions, the legislature has created a situation whereby an individual seemingly can be punished in a civil contempt action in domestic relations court under R.C. 3113.31 for a violation of a temporary protection order and then can be punished criminally under R.C. 2919.27 for the identical act.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution give to the citizens of this country and state the right not to be put in jeopardy twice for the same offense.
I. Blockburger Test
In the case of Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the Supreme Court established one test, which courts have been using ever since, to determine whether multiple prosecutions are subject to the Double Jeopardy Clause.
In Blockburger, in which an individual was prosecuted for two consecutive sales of the same narcotics seconds apart to the same individual, the court found the defendant guilty of two counts of sales of drugs, and one count of a sale of drugs not having been made in pursuance of a written order of a purchaser.
In determining that the convictions did not offend the Double Jeopardy Clause, the court held "that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Blockburger, supra, at 304, 52 S.Ct. at 182, 76 L.Ed. at 309.
Ohio has been consistent in following the dictates of Blockburger. In State v. Bowling (1987), 36 Ohio App.3d 74, 75, 520 N.E.2d 1387, 1389, the defendant was convicted of assault and felonious assault arising out of his actions during a contempt hearing. The court held:
"* * * [A] charge of contempt must be sustained by proof (1) that the contemnor misbehaved, and (2) that he did so either in the presence of the court or so near the court or judge as to obstruct the administration of justice.
"* * * [T]he instant charge of felonious assault * * * must be supported by proof that the defendant (1) acted knowingly, and (2) caused serious physical harm to the bailiff.
"Focusing on the statutory elements of felonious assault * * * as charged in the indictment vis-a-vis the statutory elements of contempt, we find that the offenses are separate for purposes of the constitutional prohibition against double jeopardy. A charge of felonious assault * * * must be substantiated by proof that the defendant acted `knowingly.' * * *"
In State v. Kimbler (1986), 31 Ohio App.3d 147, 31 OBR 236, 509 N.E.2d 99, the defendant, who had violated a custody order by refusing to return a child to its mother, was found in contempt of court in domestic relations court and was later prosecuted criminally for child stealing under R.C. 2905.04. The court held that "[n]one of the elements of this offense need be proved in connection with a charge of criminal contempt for violating a court order involving custody, such as herein involved. In a contempt proceeding, it is not necessary to prove that the person violating the custody order had the purpose to withhold the child from the legal custody of his parent. Rather, it is sufficient to prove that the court order was violated * * *." Kimbler, supra, at 151, 31 OBR at 240, 509 N.E.2d at 104.
II. Collateral Estoppel
Subsequent to the court's holding in Blockburger, two important Supreme Court decisions were decided which substantially modified Blockburger. The first of these cases was Ashe v. Swenson (1969), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469.
In Ashe, the defendant, after having been acquitted of robbing one of six poker players, was indicted for robbing a second member of the same game. In making its decision, the court established collateral estoppel as a constitutional component of the Fifth Amendment guarantee against double jeopardy. Collateral estoppel simply means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future proceeding. "Where a previous judgment of acquittal was based upon a general verdict, * * * this approach requires a court to `examine the record of the prior proceeding, * * * and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' * * * Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not." Ashe, supra, at 444-445, 90 S.Ct. at 1194-1195, 25 L.Ed.2d at 476.
Since Ashe, the First Appellate District of Ohio has used and applied this modification. State v. Tolbert (April 4, 1990), Hamilton App. No. C-890148, unreported, 1990 WL 37785, reversed (1991), 60 Ohio St.3d 89, 573 N.E.2d 617. In Tolbert, the defendant was charged with simple assault, to which he immediately plead guilty. Later, after X-rays and a CAT scan of the victim revealed a fracture of the skull, the defendant was charged with felonious assault.
In upholding the lower court's dismissal of the felonious assault charges on double jeopardy grounds, the court held that "a court, when presented with a case such as this one, must first determine whether the act constitutes a violation of two distinct statutory provisions or only one. If the court determines that the act does constitute a violation of two such statutory provisions, the court must determine whether the collateral-estoppel rule of Ashe v. Swenson applies. * * *" Id. at 5.
It is undisputed that the only issue to be decided in this case is as follows: Did the defendant violate the temporary protection order? This issue has already been decided, and the state can not relitigate the issue in this forum.
III. Grady Test — Conduct
The second and most recent significant decision by the United States Supreme Court on the issue of double jeopardy is Grady v. Corbin (1990), 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548.
In this case, the Supreme Court came to the same decision it had reached in Ashe, supra, using basically the same theory. But Grady is different from Ashe, and similar to Tolbert, supra, in that Ashe dealt with an individual charged with the exact same offense, based upon the exact same facts, but with different victims, whereas in Grady and Tolbert the defendant was originally charged with a lesser included offense and later charged with a more serious offense.
In Grady the court quoted Brown v. Ohio (1977), 432 U.S. 161, 166-167, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187, 195, at fn. 6, as follows: "`The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.'" Grady, 495 U.S. at 519, 110 S.Ct. at 2092, 109 L.Ed.2d at 563. The court then went on to state that "the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. This is not an `actual evidence' or `same evidence' test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. * * * [A] State cannot avoid the dictates of the Double Jeopardy Clause merely by altering in successive prosecutions the evidence offered to prove the same conduct." Grady, 495 U.S. at 521-522, 110 S.Ct. at 2093, 109 L.Ed.2d at 565.
There is absolutely no doubt that the exact same evidence would be used by the prosecution in this case as was used in the contempt proceeding in Butler County, and the conduct of defendant would be the identical conduct. Therefore, the Grady test would prohibit prosecution of this case.
IV. Civil versus Criminal
Entwined in the ultimate question before the court is the issue of whether and under what circumstances a civil penalty may constitute punishment for the purposes of the Double Jeopardy Clause.
This issue was addressed in the case of United States v. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487, a case in which the defendant, a manager of a company which provided medical services, was originally indicted and convicted of submitting false claims for reimbursement in violation of the federal criminal false claims statute. After conviction, the government filed suit under the federal False Claims Act seeking civil penalties of $2,000 on each of the sixty-five false claims, as well as twice the amount of the government's actual damages of $585 and the cost of the action.
Because the statutorily authorized recovery of more than $130,000 bore no "rational relationship" to the sum of the government's actual loss plus its cost in investigating and prosecuting the false claims, which the court approximated at $16,000, the court held that the imposition of the full statutory amount would appear to be a second punishment for the same crime. Halper, 490 U.S. at 452, 109 S.Ct. at 1903-1904, 104 L.Ed.2d at 504.
In making its determination, the court commented:
"* * * [T]he unresolved question implicit in our cases [is]: whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause. As noted above, the Government takes the position that punishment in the relevant sense is meted out only in criminal proceedings, and that whether proceedings are criminal or civil is a matter of statutory construction. The Government correctly observes that this Court has followed this abstract approach when determining whether the procedural protections of the Sixth Amendment apply to proceedings under a given statute, in affixing the appropriate standard of proof for such proceedings, and in determining whether double jeopardy protections should be applied. * * * But while recourse to statutory language, structure, and intent is appropriate in identifying the inherent nature of a proceeding, or in determining the constitutional safeguards that must accompany those proceedings as a general matter, the approach is not well suited to the context of the `humane interests' safeguarded by the Double Jeopardy Clause's proscription of multiple punishments. * * * This constitutional protection is intrinsically personal. Its violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state.
" In making this assessment, the labels `criminal' and `civil' are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties. * * * The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads. * * * To that end, the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.
"These goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. * * * Furthermore, `[r]etribution and deterrence are not legitimate nonpunitive governmental objectives.' * * * From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. * * * We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." (Emphasis added.) Halper, 490 U.S. at 446-449, 109 S.Ct. at 1901-1902, 104 L.Ed.2d at 500-502.
In the case sub judice, the defendant received a thirty-day sentence (albeit suspended) for his violation of the temporary protection order. Clearly, the character of this punishment is a criminal punishment, and its characterization as a "civil matter" mistakes form for substance, as the Supreme Court recognized in Grady. The fact that the civil sanction preceded the criminal, rather than vice versa, would seem of no great importance. In a double jeopardy inquiry which case came first is determined only to negate the subsequent prosecution.
V. Credit
The final issue to be addressed is what effect, if any, the statutorily provided credit that an individual receives, under R.C. 3113.31(L)(2), if he is convicted in both domestic relations and criminal courts, has on the issue of double jeopardy.
In the case of United States v. Halper, supra, and Grady v. Corbin, supra, the Supreme Court held that not only does the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protect against multiple punishments, it also protects against multiple prosecutions, so the "credit" provision does not save the otherwise unconstitutional prosecution.
VI. Conclusion
Under Ashe v. Swenson, supra, the state was estopped from relitigating the issue of whether the defendant violated the temporary protective order. Under United States v. Halper, supra, the distinction between criminal and civil was not controlling, because form fell to substance and the sanction in both was jail. Under Grady v. Corbin, supra, multiple prosecutions using the same evidence and proving the same conduct were prohibited. The prosecution here fails all of these tests.
The legislature obviously attempted to remedy the double jeopardy problem with R.C. 3113.31(L)(2), which allows credit for any time served on one case to be applied against the other. While this credit provision might avoid the prohibited double punishment for the same offense, it does not avoid the constitutional prohibition against multiple prosecutions. The legislature has enacted a statute declaring that previous contempt holdings will not be a bar to subsequent prosecutions for violation of R.C. 2919.27. However, the legislature cannot, by mere statutory enactment, abrogate the United States or the Ohio constitutional provisions against double jeopardy. Therefore, R.C. 3113.31(L)(2) is unconstitutional on its face. The prosecution is estopped from pursuing this charge and this case is dismissed.
Cause dismissed and defendant discharged.