in Re: Petition of Blenka (Michael)

 Jeopardy Clause. The State now appeals, arguing that the district court
erred in concluding that double jeopardy barred the State's prosecution of
the felony because: (1) double jeopardy does not bar subsequent
prosecution when the court lacks jurisdiction to hear all the charges; and
(2) Blenka cannot avoid prosecution for a felony DUI by pleading guilty to
a misdemeanor DUI.
The double jeopardy clause does not permit Blenka's continued prosecution
for a felony DUI after pleading guilty to misdemeanor DUI arising from
the same set of facts as the felony charge
The parties do not dispute that misdemeanor DUI is a lesser
included offense of felony DUI for double jeopardy purposes. The felony
DUI offense in question cannot be committed without committing the
lesser offense of misdemeanor DUI. NRS 484C.110 establishes the
elements that give rise to a DUI offense. The only difference between
misdemeanor DUI and felony DUI lies in the criminal penalties and
punishments under NRS 484C.400 and NRS 484C.410. The only
additional element for Blenka's felony DUI charge is the presence of a
prior felony DUI conviction. Blenka argues that the Double Jeopardy
Clause prohibits continued prosecution of his felony DUI offense. The
State argues that an exception applies to the Double Jeopardy Clause. We
disagree with the State and affirm the district court's order.
We review constitutional challenges de novo, including double
jeopardy claims. See Jackson v. State, 128 Nev. , , 291 P.3d 1274,
1277 (2012); Davidson v. State, 124 Nev. 892, 896, 192 P.3d 1185, 1189
(2008) ("A claim that a conviction violates the Double Jeopardy Clause
generally is subject to de novo review on appeal."). The Double Jeopardy
Clause of the Fifth Amendment guarantees that no person shall be
"subject for the same offense to be twice put in jeopardy of life or limb."
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U.S. Const. amend. V. This protection applies to the states through the
Fourteenth Amendment of the United States Constitution and Article 1,
Section 8, of the Nevada State Constitution. See State v. Combs, 116 Nev.
1178, 1179 n.1, 14 P.3d 520, 520-21 n.1 (2000). The Nevada Legislature
codified the Double Jeopardy Clause in NRS 171.070, which states "[w]hen
an act charged as a public offense is within the jurisdiction of another
state or territory, as well as of this state, a conviction or acquittal thereof
in the former is a bar to the prosecution or indictment therefore in this
state." (Emphasis added). "The Double Jeopardy Clause protects against
three abuses: (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." Jackson, 128 Nev. at , 291
P.3d at 1278. This case involves the third abuse, multiple punishments
for the same offense.
Nevada follows the test set forth in Blockburger v. United
States, 284 U.S. 299, 304 (1932), to determine whether a defendant may be
subjected to multiple convictions for the same act or transaction. See
Estes v. State, 122 Nev. 1123, 1143, 146 P.3d 1114, 1127 (2006). "Under
this test, two offenses are separate if each offense requires proof of a fact
that the other does not." Id. "The general test for determining the
existence of a lesser included offense is whether the offense in question
'cannot be committed without committing the lesser offense." McIntosh v.
State, 113 Nev. 224, 226, 932 P.2d 1072, 1073 (1997) (quoting Lisby v.
State, 82 Nev. 183, 184, 414 P.2d 592, 594 (1966)).
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The jurisdictional exception to the double jeopardy clause does not
permit the continued prosecution of Blenka
The State argues that the jurisdictional exception to the
Double Jeopardy Clause applies to these facts and does not bar Blenka's
subsequent prosecution of the felony DUI offense because the municipal
court lacked jurisdiction over this felony offense. We disagree.
The prosecution of a greater offense is prohibited after a
conviction for a lesser offense. See Ohio v. Johnson, 467 U.S. 493, 501
(1984) ("[T]he Double Jeopardy Clause prohibits prosecution of a
defendant for a greater offense when he has already been tried and
acquitted or convicted on the lesser included offense."); Illinois v. Vitale,
447 U.S. 410, 421 (1980) ("[Al conviction on a lesser-included offense bars
subsequent trial on the greater offense."); Brown v. Ohio, 432 U.S. 161,
169 (1977) ("Whatever the sequence may be, the Fifth Amendment forbids
successive prosecution and cumulative punishment for a greater and
lesser included offense."). Additionally, political subdivisions of a state are
not separate sovereigns for double jeopardy purposes. Waller v. Florida,
397 U.S. 387, 394-95 (1970).
The State relies on Diaz v. United States, 223 U.S. 442 (1912),
to support its argument that a jurisdictional exception applies to these
facts. We conclude that Diaz is distinguishable from this case. In Diaz,
the Philippine justice court only had jurisdiction to hear and convict the
defendant of assault and battery, but had no power to hear a homicide
charge, which was imposed after the first prosecution when the victim
died. 223 U.S. at 444. The Court held that the Philippine Civil
Government Act provisions against double jeopardy did not apply for
multiple reasons: (1) the offenses were distinct both in law and fact, (2) it
was only possible to put the accused in jeopardy for homicide once the
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homicide was committed (after the victim died), and (3) the justice of the
peace did not have jurisdiction to try the defendant for homicide. Id. at
448-49.
The municipal court had the full power and authority to
sentence Blenka on the misdemeanor charge of DUI. Applying the
Blockb urger test, Blenka was not charged with two distinct offenses. See
Estes, 122 Nev. at 1143, 146 P.3d at 1127. Both the LVCA and CCDA
agree that the facts giving rise to the misdemeanor DUI and felony DUI
arose from the same incident. The only difference in the charges is that
CCDA sought a punishment enhancement for felony DUI because Blenka
had a prior felony DUI conviction on his record. Unlike the homicide
charge in Diaz, the felony DUI charge was already pending in justice court
when the LVCA negotiated Blenka's plea in municipal court. Given that
the municipal court had jurisdiction to hear the only charge alleged
against Blenka in that court, and Blenka's misdemeanor DUI and felony
DUI were not separate offenses under the Blockburger test, the
jurisdictional exception discussed in Diaz does not apply here.
Because the justice court and municipal courts are not
separate sovereigns for double jeopardy purposes, the justice court and
municipal court may not both punish Blenka since they derive their
authority from the State of Nevada. See Waller, 397 U.S. at 394-95. We
conclude that because the misdemeanor DUI is a lesser included offense to
felony DUI, the municipal court's adjudication of the misdemeanor offense
pursuant to the LVCA negotiated plea precludes the State from continuing
to pursue felony DUI charges against Blenka. See State v. Witcher, 737
So. 2d 584, 586 (Fla. Dist. Ct. App. 1999) (holding that simple DUI is a
continuing offense for which only one conviction can be maintained for
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each episode regardless of whether a county court lacked jurisdiction over
felony DUI when it accepted the defendant's plea to misdemeanor DUI);
State v. Bernert, 100 P.3d 221, 224 (Utah Ct. App. 2004) (holding that the
trial court's acceptance of a defendant's plea to the charge of misdemeanor
DUI and subsequent conviction of the defendant on a felony DUI charge
arising out of the same conduct violated the prohibition against double
jeopardy).
The State overreached with its continued prosecution of Blenka
The State argues that pursuant to Ohio v. Johnson, 467 U.S.
493, 501-02 (1984), Blenka cannot foreclose his prosecution for a more
serious crime by pleading guilty to a lesser offense. The State also argues
that Blenka is the primary cause of his continued prosecution because he
was the only one aware of both prosecutions and should have informed the
municipal court of the pending felony DUI. We disagree.
First, the Johnson case is distinguishable. Unlike the
defendant in Johnson, Blenka did not plead guilty over the State's
objections. See 467 U.S. at 496 (after the defendant was arraigned on four
charges—one count of each murder, involuntary manslaughter,
aggravated robbery, and grand theft—the trial court accepted the
defendant's guilty pleas, over the state's objections, to the two lesser
charges). Instead, Blenka was incarcerated seven days in jail after police
arrested him pursuant to a bench warrant for failing to appear at the
municipal court arraignment. He was held on a $20,000 bail, transported
from jail to municipal court, and then faced the LVCA's prosecution on the
misdemeanor charge. Blenka then pleaded, with the cooperation of the
LVCA, to a reduced charge of misdemeanor DUI. Additionally, unlike
Johnson, Blenka did not attempt to resolve only part of the charges
against him in the municipal court. But see id. at 501-02 (holding the
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Johnson defendant could not resolve only part of the charges against him
where "efforts were directed to separate disposition of counts in the same
indictment where no more than one trial of the offenses charged was ever
contemplated"). The record does not indicate that Blenka's two attorneys
conversed on this case. Therefore, the State's use of Johnson to support
its argument is unavailing.
Second, the State improperly attempts to shift the burden to
Blenka, who was under no legal obligation to speak up in municipal court.
See Rosas v. State, 122 Nev. 1258, 1265-66, 147 P.3d 1101, 1106-07 (2006)
(holding that a defendant is not required to present a defense, or evidence
consistent with such defense, or to admit culpability for a lesser included
offense in order to obtain an instruction on a lesser included offense). The
Sixth Amendment requires the government to inform Blenka of the nature
and cause of the accusation against him, not the other way around. See
U.S. Const. amend IV (indicating that the defendant must "be informed of
the nature and cause of the accusation"). The LVCA and CCDA were the
ones with the resources and power in this situation, including the position
to know of Blenka's concurrent charges. See Green v. United States, 355
U.S. 184, 187 (1957) ("The underlying idea. . . is that the State with all its
resources and power should not be allowed - to make repeated attempts to
convict an individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a
continuing state of anxiety and insecurity. ."). We conclude that it
would be an unreasonable burden to expect Blenka (a layman) to know
that his cases needed to be consolidated, even though attorneys from two
governmental entities were proceeding with a course of action that
violated the Double Jeopardy Clause. The record does not indicate that
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EZEIMEINEEMI
the attorney representing Blenka in municipal court knew of his pending
felony case in justice court. Therefore, Blenka was under no obligation to
inform the municipal court of his pending felony DUI charge.
We conclude that Blenka did not frustrate the State's efforts to
hold a single trial for the two DUI charges because the actions of the
LVCA and CCDA, not those of Blenka, led to his dual prosecutions. The
record indicates that the LVCA has access to the CCDA's case
management system. As indicated by the declaration of Assistant City
Attorney Bernard Little, the LVCA's choice to prosecute the misdemeanor
DUI was a tactical decision made without awareness that the CCDA had
approved a felony DUI charge. Because Blenka was already convicted of
misdemeanor DUI, the Double Jeopardy Clause bars the State from
further prosecuting him for felony DUI. 1
Accordingly, we ORDER the judgment of the district court
AFFIRMED.
Saitta
1 We have considered the State's remaining arguments and conclude
they are without merit.
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cc: Hon. Abbi Silver, District Judge
Clark County District Attorney
Attorney General/Carson City
Clark County Public Defender
Eighth District Court Clerk
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