State v. Knaff , 128 Ohio App. 3d 90 ( 1998 )

Defendant-appellant Jarron Knaff appeals from his conviction and sentence on one count of failure to comply with the order of a police officer, a fourth-degree felony.¹

FACTS On November 14, 1996, Knaff was driving a car in the Queensgate section of Cincinnati when a police officer attempted to pull him over for an outstanding warrant. Instead of stopping, Knaff ran a red light and led the police on a long, high-speed chase from the West End to 1-75, then to 1-71. Knaff traveled at speeds in excess of eighty miles per hour, weaving in and out of traffic and almost losing control of the car. Eventually, he exited from 1-71 at Montgomery Road, ran another red light, and bailed out of the car. The police pursued him on foot and eventually apprehended him. Knaff was charged with several offenses, only two of which, reckless operation of a vehicle and failure to comply with an order of a police officer, are involved in this appeal. MUNICIPAL COURT: MISDEMEANOR OFFENSE On November 25, 1996, in municipal court, Knaff pleaded guilty to the misdemeanor offense of reckless operation of a vehicle, in violation of Cincinnati Municipal Code 506.6. This section provides:

"No person shall operate a vehicle on any street or highway without due regard for the safety of persons or property."

After the municipal court judge accepted the guilty plea, the prosecutor moved to dismiss the charge. The court complied, noting that the case was being dismissed without a finding.

COMMON PLEAS COURT: FELONY CHARGE Knaff was also indicted on the felony offense of failure to comply with an order or signal of a police officer, in violation of R.C. 2921.331 (B) and (C)(3). This statute provides in relevant part:

"(B) No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring his motor vehicle to a stop.

"(C) * * * A violation of division (B) of this section is a misdemeanor of the first degree, except that a violation of division (B) of this section is a felony of the fourth degree if the jury or judge as trier of fact finds any one of the following by proof beyond a reasonable doubt: "* * *

"(3) The operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property."

Knaff filed a motion to dismiss the felony portion of the charge in the common pleas court, arguing that there was a former prosecution in the state for the same offense, namely the reckless-operation charge to which the municipal court had accepted Knaffs plea of guilty. Knaff argued that the reckless-operation offense was a lesser included offense of the felony failure-to-comply charge and, therefore, that the state could prosecute him only for a misdemeanor violation of R.C. 2921.331 (B).

The court of common pleas overruled Knaffs motion to dismiss, ruling that the reckless-operation charge was dismissed before jeopardy had attached because the municipal court judge made no finding. Knaff then entered a no-contest plea to the failure-to-comply charge and was found guilty. The court sentenced him to one year of imprisonment. Knaff brings his appeal from this conviction and sentence.

ASSIGNMENTS OF ERROR In his first and second assignments of error, Knaff argues that the common pleas court's failure to dismiss the felony portion of the indictment and the court's subsequent entry of conviction and sentence on the felony offense placed him in jeopardy twice for the same offense in violation of the Fifth Amendment to the United States Constitution and Section 10, Article I, of the Ohio Constitution.

We must first determine whether jeopardy had attached to the misdemeanor offense in this matter. The common pleas court judge ruled that jeopardy had not attached to the reckless-operation offense because the municipal court judge dismissed the charge without a finding. However, when a defendant pleads guilty to a charge, the court does not make a finding, but merely evaluates whether the plea complies with Crim.R. 11. See Crim.R. 11; R.C.2937.07; State v. Ricks (1976), 48 Ohio App.2d 128, 2 O.O.3d 104,356 N.E.2d 312. After entering into the Crim.R. 11 colloquy with the defendant, the municipal court judge accepted the guilty plea. We hold that jeopardy attached on the reckless operation charge when the court accepted Knaff's plea of guilty.² In doing so, we join a long line of cases holding this, best explained by the court in State v. Turpin (Dec. 31, 1986), Warren App. No. CAS6-02-014, unreported, 1986 WL 15291:

"[A] guilty plea by itself is a complete admission of the defendant's guilt sufficient to permit a guilty finding. * * * [N]o factual basis for a guilty plea is required before a conviction may be entered. * * *

"[A]n accepted guilty plea in an Ohio criminal proceeding is the equivalent of the defendant taking the witness stand and admitting under oath his guilt of the offense charged. * * * [A] guilty plea is conclusive [of guilt] in itself without any supporting evidence."

Having held that jeopardy attached to the misdemeanor offense, we must still decide whether prosecuting Knaff for the felony offense of failure to comply constitutes double jeopardy.

The Double Jeopardy Clause prohibits multiple prosecutions for the same offense. As stated in State v. Best (1975), 42 Ohio St.2d 530, 71 O.O.2d 517, 330 N.E.2d 421, paragraph two of the syllabus:

"To sustain a plea of former jeopardy it must appear:

"(1) That there was a former prosecution in the same state for the same offense;

"(2) that the same person was in jeopardy on the first prosecution;

"(3) that the parties are identical in the two prosecutions; and

"(4) that the particular offense, on the prosecution of which the jeopardy attached, was such an offense as to constitute a bar."

In order to determine whether the reckless-operation offense is the type of offense which constitutes a bar for double-jeopardy purposes, we must apply the Blockburger test, which provides:

"[W]here 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 v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309. See, also, United States v. Dixon (1993), 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556.

The state argues that the reckless-operation charge and the failure-to-comply charge stemmed from factually different circumstances, i.e., that the reckless-operation citation was based upon Knaff's behavior at a certain point in the chase and that the rest of the chase gave rise to the failure-to-comply offense. We disagree. The prosecutor and defense counsel stipulated below that the two charges arose out of the same incident. Unlike State v. Reddy (Sept. 6, 1995), Lorain App. No. 94CA005972, unreported, 1995 WL 523354, a case relied on by the state, there was no event in this case separating the offenses. The failure-to-comply charge in this case arose from a single, continuous offense that began when Knaff willfully fled from the police officer and ended when he was caught. Compare Blockburger at 302-303, 52 S.Ct. at 181-182, 76 L.Ed. at 308-309. The reckless driving took place during this chase.

When we apply the Blockburger test to the case before us, it is clear that the felony failure-to-comply offense required proof of several additional facts separate from the reckless-operation offense. However, the reckless-operation offense did not require proof of any fact beyond those required for felony failure to comply. Under the elements, it is impossible to commit the felony version of the failure-to-comply offense-operation of a motor vehicle causing a substantial risk of serious physical harm to persons or property — without also violating the city ordinance — operation of a vehicle without due regard for the safety of persons or property. Knaff was placed in jeopardy once for this reckless driving during the chase, and, therefore, he could not be prosecuted again. While we believe that Knaffs actions warranted the more serious charge, we cannot ignore the law because of an apparent procedural miscue.

We hold that jeopardy attached to the reckless-operation charge and that the subsequent prosecution of Knaff for the felony offense of failure to comply violated the Double Jeopardy Clause. Therefore, the trial court erred in overruling Knaff's motion to dismiss the felony version of the failure-to-comply charge.

CONCLUSION The first and second assignments of error are sustained. Knaffs third assignment of error, challenging his sentence on the felony charge, is rendered moot by this decision. The judgment of the trial court is reversed, and the matter is remanded to the trial court with instructions to enter judgment for a misdemeanor violation of R.C. 2921.331 (B) and to sentence the defendant accordingly.

Judgment reversed and cause remanded.

PAINTER, J., concurs.

HILDEBRANDT, P.J., dissents.

¹ We have sua sponte removed this case from the accelerated calendar.

² See State ex rel. Leis v. Gusweiler (1981), 65 Ohio St.2d 60, 19 O.O.3d 257, 418 N.E.2d 397; State ex rel. Sawyer v.O'Connor (1978), 54 Ohio St.2d 380, 382, 8 O.O.3d 393, 394-395,377 N.E.2d 494, 497; State v. Turpin (Dec. 31, 1986), Warren App. No. CA56-02-014, unreported, 1986 WL 15291; State v. James (June 13, 1986), Wood App. No. WD-85-59, unreported, 1986 WL 6691. Cf.State v. Reddick (1996), 113 Ohio App.3d 788, 682 N.E.2d 38; see, generally, Annotation, Plea of Guilty as Basis of Claim of Double Jeopardy in Attempted Subsequent Prosecution for the Same Offense (1961), 75 A.L.R.2d 683.