Double Jeopardy Violation After a Guilty Plea

Last week the Indiana Supreme Court handed down an opinion that criminal defense attorneys should be aware of. Over 90% of criminal cases in Indiana are resolved through guilty pleas. Most of these pleas are made after the parties enter into an agreement. The agreement calls for the defendant to plead guilty to specific offenses in exchange for some benefit, whether it be the dismissal of other counts, a limit on the maximum sentence, etc. In less common cases, defendants will plead guilty without entering into a plea agreement.

In cases where the trial court retains discretion over the sentence, defendants have sought to appeal when the trial court entered convictions and imposed sentences that constituted double jeopardy. If the defendant had agreed pursuant to the terms of a plea agreement to plead guilty to certain offenses, he is bound by the terms of the agreement and cannot later complain about being subject to double jeopardy. his only recourse is to seek post-conviction relief from the plea agreement.

But what about the defendant who did not agree to plead guilty to particular offenses as part of a plea agreement? Can he take an appeal from a guilty plea where he believes he was subjected to double jeopardy?

In Monroe v. State, the defendant pleaded guilty to murder, felony murder, and robbery resulting in serious bodily injury without the benefit of a plea agreement. At the plea hearing, the parties agreed that the felony murder count would be vacated due to double jeopardy concerns. Prior to sentencing, the defendant argued the robbery count should be vacated too, presumably because the serious bodily injury that occurred during the robbery was the murder. The trial court disagreed and entered convictions and sentences on both the murder and the robbery counts.

The defendant appealed, but the Court of Appeals affirmed, holding that a defendant cannot challenge the validity of one’s convictions on direct appeal after a guilty plea.

The Supreme Court agreed. It explained that the defendant already had a procedure available. Indiana law allows a defendant to file a motion to withdraw a guilty plea. The Supreme Court explained that the defendant could file such a motion on only the included offense (i.e., the offense the defendant believes violates double jeopardy). If the trial court denied the motion, the defendant could appeal the denial. The Court noted that this process “gets to the same place as Monroe’s proposal . . . .”

Except it doesn’t always. Here’s the problem: in the vast majority of cases, a double jeopardy violation is not raised until sentencing. When a motion to withdraw a guilty plea is raised after sentencing, it is treated as a petition for post-conviction relief. If you are trial or appellate counsel and file such a motion, you will be responsible for ensuring the matter is referred to the State Public Defender to investigate all post-conviction claims. Otherwise, if you simply move forward on the motion and raise only the double jeopardy issue, you will have waived all other post-conviction claims your client may have.

What should practitioners do? First, if you are trial counsel, do not wait until sentencing to determine whether there is a double jeopardy violation. Raise the issue at the guilty plea hearing and file a motion to withdraw guilty plea before the sentencing hearing to preserve the issue for direct appeal.

If you are appellate counsel and no motion has been filed, you should proceed with direct appeal on the sentencing issues and advise the client about filing a petition for post-conviction relief on the double jeopardy violation after the appeal is over. If you decide instead to file the motion to withdraw guilty plea on the client’s behalf, it will be treated as a petition for post-conviction relief. Thus, you must raise all post-conviction issues the client may have, or you will waive those claims.