Potential Change in Law Regarding Double Jeopardy Claims After an Open Plea

For probably as long as I have been practicing appellate criminal law, it has been understood that if a defendant pleads guilty without the benefit of a plea agreement, he is permitted to raise a double jeopardy claim on direct appeal from his sentence. Criminal defendants who plead guilty pursuant to a plea agreement with the State are not so permitted. Why the difference?

The premise behind the disparate treatment derives from contract law: a defendant who enters into a plea bargain/contract receives some consideration/benefit from the bargain/contract. In exchange, he gives something up as consideration/benefit to the State. What does he give up? The right to challenge the validity of his conviction. We give a lot of leeway to parties to craft an agreement to resolve a dispute; as long as both parties entered into the agreement knowingly, voluntarily, and intelligently, the agreement will generally be upheld. This is true even where the terms of the agreement might result in a sentence that is contrary to law or in a conviction that would not normally have been permitted under the law.

But defendants who plead guilty without reaching an agreement with the State have not received any benefit from the State in exchange for his guilty plea. Rather, the defendant is throwing himself at the mercy of the court and assuming the court will sentence him in accordance with the law. Statutory and common law call for a defendant to not be placed in jeopardy twice for the same offense. Thus, being sentenced in accordance with the law would include the law’s protection from double jeopardy. In sum, a defendant who throws himself at the mercy of the court could be reasonably assured that the court’s sentence would not subject him to double jeopardy.

Two recent cases now cast doubt on this. In both Yost v. State, 150 N.E.3d 610 (Ind. Ct. App. 2020), and now today in Carl McDonald v. State, the Court of Appeals has held that even where a client pleads guilty without the benefit of any agreement with the State, he is prohibited from raising a double jeopardy claim on direct appeal of his sentence. The Court’s reasoning is that a double jeopardy claim challenges the validity of a conviction and, therefore, can only be raised in a post-conviction proceeding after a guilty plea. In so holding, the Court of Appeals has cited to several Supreme Court opinions, none of which are directly on point. For example, in Tumulty v. State, 666 N.E.2d 394 (Ind. 1996), the defendant had entered into a plea agreement with the State. The same is true of the defendant in Mapp v. State, 770 N.E.2d 332 (Ind. 2002). In Hayes v. State, 906 N.E.2d 819 (Ind. 2009), the direct appeal challenge after an open plea was an insufficient factual basis to support a plea, and not a double jeopardy claim.

One might ask why all this really matters; after all, the defendant can still raise the claim. But timing in a criminal case is everything. A direct appeal in a criminal case, from start to finish, usually takes six months to a year. This is a short length of time for an appeal, but a criminal defendant with a short sentence may be released before the appeal has concluded. If so, and he was subjected to an illegally long sentence because he was twice punished for the same offense, he will have received no relief from his illegal sentence.

Moreover, if he must wait until post-conviction proceedings to bring a double jeopardy claim, he will be required to wait until after the direct appeal is concluded before beginning the post-conviction process. Often there is a wait before an investigation can begin of the defendant’s post-conviction claims, and litigation has been known to take years. A defendant is only entitled to one post-conviction process; thus, every possible claim available must be investigated and raised, or he will be foreclosed from ever raising it in the future.

Sure, the defendant could skip the direct appeal process and go straight to post-conviction. But then he is unable to bring a challenge to his sentence. Or the defendant could start the direct appeal but ask for remand to the trial court to begin the post-conviction process. While this procedure (known as the Davis/Hatton procedure) would allow him to immediately begin the post-conviction process without losing his right to appeal his sentence, this process effectively requires the direct appeal attorney to become the post-conviction attorney as well. This is rarely beneficial.

Because the law is in flux right now, attorneys should advise clients that wish to plead guilty without the benefit of an agreement with the State of this uncertainty in the law. Thankfully, the Indiana Supreme Court is hearing this matter in another case, Ryan Gravit v. State. The oral argument is set for September to decide whether to grant the defendant’s petition to transfer. Until then, uncertainty remains.