On petition for writ of certiorari to the Court of Appeals of
Ohio, Cuyahoga County.
The petition for writ of certiorari is denied.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
Petitioner was arrested on August 13, 1980, after one Francis J.
Kelley reported that petitioner has taken his motorcycle from him
at knife point earlier that day, along with title to the motorcycle
and some cash. On August 26, two weeks later, a Cuyahoga County
grand jury handed down a one-count indictment charging petitioner
with receiving stolen property. Petitioner appeared on the
following September 26, pleaded guilty to the charge, and received
a sentence. Then, on October 7, the grand jury returned a second
indictment that charged petitioner with receiving stolen property,
aggravated robbery, and intimidating a witness. The receiving and
aggravated robbery counts were based upon the same theft of Mr.
Kelley's belongings for which petitioner had already been
convicted. Petitioner moved to dismiss the second indictment on the
ground that it violated the Double Jeopardy Clause of the Fifth
Amendment as applied to the states under the Fourteenth Amendment.
The trial court dismissed the receiving count in the second
indictment at the state's request, but overruled petitioner's
motion to dismiss the remaining counts.
Petitioner took an interlocutory appeal. With one judge
dissenting, the Ohio Court of Appeals, Eighth District, affirmed
the trial court's ruling. It held:
Page 459 U.S.
957 , 958
"The intimidation and aggravated robbery charges raise no double
jeopardy issue.... (T)he aggravated robbery count implicates not a
duplicate, but an allied offense....
"The allied offense issue will arise only if the defendant is
found guilty of aggravated robbery. He may be tried, but cannot be
convicted, for both the aggravated robbery and for receiving the
stolen property acquired in the theft offense, Maumee v. Geiger
(1976 ), 45 Ohio St.2d 238, 244 (344 N.E.2d 133). Accordingly, the
error assigned is without merit." Petition for Writ of Certiorari,
Appendix, at 17-18.
The Ohio Supreme Court overruled petitioner's motion for leave
to appeal, and this petition followed.
We have jurisdiction to review final judgments by state courts
denying a defendant's pre-trial motion to dismiss an indictment on
former jeopardy grounds. Harris v. Washington,
404 U.S.
55, 56, 184 (1971); see Abney v. United States,
431 U.S. 651, 656-661,
2038-2041 (1977). I would grant the petition for certiorari and set
the case for oral argument. The Double Jeopardy Clause prohibits "a
second prosecution for the same offense after conviction," North
Carolina v. Pearce,
395 U.S.
711, 717, 2076 (1969), and I adhere to the view that this
prohibition requires states to prosecute in one proceeding "all the
charges against a defendant that grow out of a single criminal act,
occurrence, episode, or transaction." Ashe v. Swenson,
397 U.S. 436, 453- 454,
1199 (1977) (BRENNAN, J., concurring); see Brooks v. Oklahoma, --
U.S. -- (1982) ( BRENNAN, J., dissenting from denial of
certiorari); Thompson v. Oklahoma, 429 U.S. 1053 (1977) (BRENNAN,
J., dissenting from denial of certiorari), and cases cited therein.
Petitioner's indictment for aggravated robbery manifestly arose
from the selfsame criminal act supporting his earlier conviction
for receiving stolen property. None of the exceptions discussed in
my opinion in Ashe v. Swenson, 397 U.S., at 453, n. 7 and 455, n.
11, n. 7 and 1200, n. 11, excuse the state's failure to prose-
Page 459 U.S.
957 , 959
cute petitioner in a single proceeding. 1 I therefore conclude
that trying petitioner on an aggravated robbery charge after he has
been convicted and sentenced on the receiving charge violates the
Double Jeopardy Clause as applied to the states. [
Footnote 2]
In addition, any offense that requires proof of all the facts
necessary to obtain a conviction for receiving is the "same
offense" as receiving for purposes of the Double Jeopardy Clause.
See Illinois v. Vitale,
447 U.S.
410, 416, 2265 (1980); Brown v. Ohio,
432 U.S. 161 (1977); cf.
Harris v. Oklahoma,
433 U.S. 682 (1977). In
Ohio, the crime of receiving stolen property is complete if a
person retains or disposes of the property of another knowing or
having reason to believe that it was acquired through theft. See
Ohio Rev.Code Ann. 2913. 51. Aggravated robbery is defined as the
use of a weapon or the infliction of harm in the course of
committing, attempting, or fleeing after one of a series of "theft
offenses" defined by statute, including receiving stolen goods.
See, id., 2911.01, 2913.01(K). Thus, to convict petitioner of
aggravated robbery in the current prosecution, the state must prove
that he committed a "theft offense." As the court below implicitly
recognized, petitioner cannot be retried for receiving stolen
goods. See Illinois v. Vitale, supra. Yet, on the allegations in
the indictment now outstanding, the state will be unable to prove
that petitioner committed aggravated robbery without proving at the
same
Page 459 U.S.
957 , 960
time that he retained or disposed of Mr. Kelley's property with
knowledge that it was obtained by theft. [
Footnote 3] Since prosecuting petitioner for aggravated
robbery will therefore require the state to prove every fact
necessary to convict petitioner of receiving stolen goods, a charge
on which he has already been convicted, the current prosecution
violates the Double Jeopardy Clause. See Illinois v. Vitale, 447
U.S., at 426-428-2271 (STEVENS, J., dissenting).
Footnotes
Footnote 1 Nor does the
authority cited by the court support its holding. It stands merely
for the correct proposition that the state could have prosecuted
petitioner on both charges at the same time, as long as he was
convicted only of one.
Footnote 2 I express no
opinion as to the propriety of indicting petitioner for
intimidating a witness. The intimidation charge stems from a
telephone call petitioner allegedly made shortly after his arrest
threatening Mr. Kelley with retribution should he cooperate with
the police in prosecuting petitioner. It thus arguably relates to a
criminal transaction between petitioner and Mr. Kelley separate
from the theft at issue in the receiving and aggravated robbery
charges.
Footnote 3 All but three of
the "theft offenses" listed in 2913.01(K), besides receiving stolen
goods itself, are not even arguably relevant to petitioner's crime.
For instance, he has not been charged with burglary, tampering with
coin machines, impersonating an officer, or corrupting sports
events, all of which constitute "theft offenses." The three
relevant possibilities are robbery, theft, and unauthorized use. As
a matter of law, the only way petitioner could have committed
aggravated robbery on the basis of these crimes without also
committing the crime of receiving stolen goods would be if he had
merely attempted robbery, theft, or unauthorized use, without
actually obtaining another's property. But there is no such attempt
allegation in this case, and petitioner was in possession of some
of the stolen property when he was arrested.
The situation in this case is different from that before the
Court in Illinois v. Vitale, supra. The Court in Vitale found that
the state might conceivably prove the crime of reckless vehicular
manslaughter without resorting to the same facts that had supported
Vitale's earlier conviction for failing to reduce speed to avoid a
collision, and it allowed the prosecution to proceed subject to a
later Double Jeopardy challenge if the state in fact relied on
failure to reduce speed. In this case, the state cannot conceivably
convict petitioner of aggravated robbery without proving facts
sufficient to obtain a conviction for receiving stolen goods.
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