Indiana Supreme Court Affirmed Double Jeopardy Claims Cannot be Raised on Direct Appeal After a Guilty Plea

For years, there has been a split in authority in the Court of Appeals on whether defendants who plead guilty can raise double jeopardy claims on direct appeal. In Tumulty v. State, 666 N.E.2d 394 (Ind. 1996), our Supreme Court held that a defendant who pleaded guilty could not challenge his conviction on direct appeal; only sentencing claims could be raised. In Collins v. State, 817 N.E.2d 230 (Ind. 2004), the Indiana Supreme Court clarified that sentencing claims after a guilty plea must be raised, if at all, on direct appeal.

The split in authority developed from confusion as to whether substantive double jeopardy claims were challenges to one’s convictions or one’s sentences. The Indiana Supreme Court’s decision in McDonald v. State, which was issued last week, seems to end the confusion. Even though this was not expressly stated in its written opinion, the Justices made clear during the oral argument in this case that a double jeopardy claim is a challenge to one’s convictions, since the remedy requested is a reversal of one or more convictions.

The McDonald decision has several implications for Indiana practitioners. First, at the trial level. If a client desires to plead guilty to multiple offenses, with or without a plea agreement, to avoid double jeopardy concerns counsel will need to seek dismissal of the offending counts before the client pleads guilty.

Second, the McDonald decision treats double jeopardy claims as claims challenging one’s convictions. Because double jeopardy is no longer viewed as a sentencing claim, the State will likely argue that any double jeopardy claim raised after a trial that is not properly preserved for appeal will be deemed waived. Therefore, trial counsel should lodge an objection to any double jeopardy violations either before or at the sentencing hearing. If counsel does not, the issue may be waived and not reviewable on appeal. Defense counsel is no longer able to rest on the notion that double jeopardy claims are sentencing claims for purposes of error preservation.