Opinion
Nos. 90TRC48354A, 90TRC48354B.
Decided March 28, 1991.
Lisa C. Allen, assistant city prosecutor, for the state.
Maxine Young Asmah, for defendant.
This case was tried on March 14, 1991 and was taken under advisement for decision. The facts are not disputed and are as follows.
The defendant, Shawn T. Smith, was observed driving his vehicle, a 1988 Ford truck, in an erratic manner on Fourth Street in Covington, Kentucky. The Covington officer then followed the defendant's vehicle across the Clay Wade Bailey Bridge and stopped the vehicle in Cincinnati, Ohio. The Covington officer notified Cincinnati police and a Cincinnati officer, Diana Maxwell, responded to the scene, conducted psychomotor tests, made observations, and arrested defendant. Prior to Officer Maxwell's response, the Covington policeman, Sgt. Miles, asked for and received defendant's license and administered one psychomotor test.
The defendant was taken to a Cincinnati police district office and given an intoxilyzer test, the result of which was a reading of .198 grams of alcohol per two hundred ten liters of defendant's breath. Defendant was charged with driving under the influence by both Kentucky and Ohio, and, prior to trial on this case, was found guilty and sentenced by the Kentucky court.
Prior to trial in the instant case, defendant filed a motion to dismiss, the basis for which was the constitutional prohibition against double jeopardy. The court, without evidence, could not rule on this question and suggested to counsel that the case be tried, preserving the three issues that are apparent: (1) Whether the state of Ohio can try the defendant within constitutional guidelines? (2) If the first question is resolved in favor of Ohio, does the defendant's conviction in Kentucky trigger the enhanced penalty provisions of Ohio's law? and (3) Does R.C. 2941.25, Ohio's merger statute, preclude two sentences? We answer the first question in the affirmative, but the second and third in the negative.
The state argues that two prosecutions for the same act by different sovereigns does not violate the Fifth Amendment prohibition against double jeopardy. The defendant's position is that when one sovereign directs the activities of the other, there is but one sovereign, and dual prosecutions by one sovereign is a violation of the proscription against double jeopardy.
We find support for the dual sovereignty doctrine in the Ohio case of State v. Fletcher (1971), 26 Ohio St.2d 221, 55 O.O.2d 464, 271 N.E.2d 567, relative to a federal and state prosecution. In Fletcher, the defendant was convicted first in a federal court and then in a state court prosecution for the same act, the charge was dismissed on a pretrial motion. The appellate court agreed, but the Supreme Court, in reversing the court of appeals, reasoned as follows:
"* * * [W]e are of the opinion that the power of a state to prosecute under state law for the same act a defendant who has already been prosecuted under federal law satisfies a legitimate state interest in preserving `the historic right and obligation of the States to maintain peace and order within their confines.' * * *" Id. at 226-227, 55 O.O.2d at 467, 271 N.E.2d at 570.
The court in Fletcher held that the dual sovereignty rule of Bartkus v. Illinois (1959), 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684, permitted successive prosecutions by federal and state courts, respectively, for the same criminal act. Dual prosecutions are not constitutionally permitted when the prosecuting authorities are both political subdivisions of the same sovereignty. See State v. Anderson (1989), 57 Ohio App.3d 108, 566 N.E.2d 690.
In the context of a federal and state prosecutions, there are two federal appellate cases, United States v. Russotti (C.A.2, 1983), 717 F.2d 27, and United States v. Aleman (C.A.7, 1979), 609 F.2d 298, which hold that the dual sovereignty doctrine is subject to the qualification that a state prosecution cannot be used merely as a cover and a tool of federal authorities. Cooperation between the governmental entities is encouraged and, in fact, praised.
This court does not believe from the evidence presented that the Kentucky sergeant was a pawn of the Cincinnati officer or vice versa. Officer Maxwell testified that her conclusions were based on her observations, psychomotor tests and intoxilyzer results. The only evidence supplied by the Kentucky sergeant needed for a successful prosecution in Ohio was the statement of Sgt. Miles that defendant was seen operating a vehicle in Ohio. This level of cooperation does not lead to the conclusion that Ohio was directing Kentucky or that these two police investigations were anything but independent.
Directly on point, in that the dual sovereigns were two states, is the recent decision in Heath v. Alabama (1985), 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387. Writing the opinion for the seven-to-two majority, Justice O'Connor said:
"In applying the dual sovereignty doctrine, * * * the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power. * * *
"The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their power to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment. See [ United States v.] Lanza [ 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922)], supra, at 382 [ 43 S.Ct. at 142, 67 L.Ed. at 317]. The States are equal to each other `in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself.' Coyle v. Oklahoma, 221 U.S. 559, 567 [ 31 S.Ct. 688, 690, 55 L.Ed. 853, 858] (1911). See Skiriotes v. Florida, 313 U.S. 69, 77 [ 61 S.Ct. 924, 929, 85 L.Ed. 1193, 1200] (1941). Thus, `[e]ach has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each "is exercising its own sovereignty, not that of the other."' [ United States v.] Wheeler [ 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978)], supra, at 320 [ 98 S.Ct. at 1084, 55 L.Ed.2d at 310] (quoting Lanza, supra [260 U.S.], at 382 [ 43 S.Ct. at 142, 67 L.Ed. at 317])." Id. at 88-90, 106 S.Ct. at 437-438, 88 L.Ed.2d at 394-395.
The conclusion reached is that the dual state prosecutions for the same act in this case do not violate the Double Jeopardy Clause of the Fifth Amendment. Now, we turn to the question of an enhanced penalty suggested by our condoning dual prosecutions in this case.
R.C. 4511.99(A)(2) is the appropriate sentencing statute. It reads in pertinent part as follows:
"If, within five years of the offense, the offender has been convicted of * * * a violation of section 4511.19 of the Revised Code, of a municipal ordinance relating to operating a vehicle while under the influence of alcohol, * * * the court shall sentence the offender to a term of imprisonment of ten consecutive days * * * [and] a fine of not less than three hundred * * * dollars."
The purpose of the enhanced penalty provision is to deter subsequent offenses after conviction by an escalating system of penalties. It is an offense that occurs after conviction that triggers the enhanced penalty. The offense in this case took place prior to conviction. Therefore, the enhanced penalty is not triggered by the plain language of R.C. 4511.99(A)(2).
Finally, R.C. 2941.25 prohibits multiple sentences for two allied offenses of similar import, but permits multiple sentences where the defendant's conduct results in two offenses of the same kind committed separately. This statute was designed to prevent "shotgun" prosecutions as the Committee Comment makes clear by placing limits upon the charging state. However, we do not believe it can, nor should, function to place limits upon another state's charging function. To interpret the statute in any other way would completely abrogate the dual sovereignty doctrine so firmly entrenched in our criminal law. See 21 American Jurisprudence 2d (1981) 490, Criminal Law, Section 281.
Defendant is found guilty of driving under the influence of alcohol in Ohio. He is eligible to be sentenced as a first offender. Sentencing shall take place on April 25, 1991.
Reporter's Note: Defendant was subsequently sentenced and there was no appeal.
Judgment accordingly.