Youngstown Daily Legal News

Appeals court rejects veteran's double jeopardy claim

ANNIE YAMSON
Special to the Legal News
Published: August 21, 2014

A panel of three judges in the 8th District Court of Appeals recently agreed that a trial court may impose separate sanctions for a charge of escape and for violating the conditions of postrelease control.

Kevin Dunne appealed from the Cuyahoga County Court of Common Pleas’ decision, arguing that dual sentencing for a single act violates the double jeopardy clause of the United States Constitution.

Finding no merit to his claims, the 8th District affirmed the decision of the lower court in an opinion authored by Judge Eileen A. Gallagher.

Case summary states that Dunne, a veteran, was indicted on an escape charge after he failed to report to his parole officer on an underlying attempted felonious assault conviction. Dunne pleaded guilty but failed to appear for his presentence investigation interview and his sentencing hearing.

Because of his absence, Dunne was sentenced to one year in prison for the charge of escape.

Additionally, the trial court terminated Dunne’s postrelease control and sentenced him to 18 months in prison for the remaining time he possessed on parole.

Those sentences were ordered to be served consecutively for a total of 30 months of imprisonment.

Dunne argued that he cannot be sentenced twice for failing to report by being sentenced to prison for escape and for committing a felony while under postrelease control.

Judge Gallagher cited the Ohio Supreme Court’s decision in State v. Martello, which held that “there is no double jeopardy violation where a person released on postrelease control who violates the conditions of that postrelease control faces a term of incarceration for the violation as well as criminal prosecution for the conduct that was the subject of the violation as a felony in its own right.”

The Martello court reasoned that punishment imposed due to a violation of postrelease control is civil in nature and constitutes a reinstatement of a punishment that had already been imposed as part of the original criminal prosecution.

In other words, Dunne was informed that parole is a conditional release and if he violated the terms of that release, he could return to prison to finish out his sentence.

“Therefore, double jeopardy did not attach,” wrote Judge Gallagher, who noted that the long-standing rule in Ohio has been that a criminal defendant can be convicted of a new charge of escape regardless of a parole authority’s decision to reinstate an original sentence or impose sanctions for a parole violation.

In a concurring opinion, Presiding Judge Frank Celebrezze agreed with the logic of Judge Gallagher’s opinion, but noted that Dunne’s Mitigation Evaluation Report indicated he was a veteran and had mental health issues, which had an impact on his criminal history.

“It is an unfortunate truth that many veterans return to civilian life with significant physical and mental traumas that often contribute to their involvement in the criminal justice system,” wrote Judge Celebrezze, who urged the Cuyahoga County court to form a veterans court, stating that such a specialty docket would enable the lower court to address the unique circumstances of veterans in the legal system. Judge Celebrezze said “it saddens this judge to observe the repeat-offender nature of many of our veterans who struggle with their mental health issues or alcohol and drug addictions — which far too often derive from their service to our country.”

In order to increase veterans’ chances for rehabilitation, Judge Celebrezze wrote that Cuyahoga County “must take responsibility for ensuring that veterans receive the treatment they need and deserve.”

He pointed out that the Cleveland Municipal Court has a veterans docket which facilitates access to treatment programs and fosters interaction with other veterans.

Judge Celebrezze said his hope would be for the common pleas court to use the municipal docket as a model to ensure that veterans are put on a path to “a healthy and law-abiding life.”

Judge Mary Kilbane joined judges Gallagher and Celebrezze to form the majority.

The case is cited State v. Dunne, 2014-Ohio-3323.

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