Can a defendant be prosecuted twice for the same offense if he or she fails to comply with the terms of a plea agreement?

Plea Agreement

Sweat (Lonnie) vs. Dist. Ct. (State) (Nev. Supreme Ct. – Oct. 5, 2017)

The Double Jeopardy Clause protects a defendant from multiple prosecutions for the same offense. This opinion addresses whether a defendant’s failure to comply with the terms of a plea agreement with the State constitutes a waiver of that protection.

On May 9, 2016, the State charged Sweat by way of criminal complaint with battery constituting domestic violence, a category C felony. In Nevada, battery constituting domestic violence is a felony if the defendant has two or more prior convictions for domestic violence within seven years. Because Sweat had priors in 2010 and 2011, the State opted to proceed as a felony. Pursuant to negotiations with the State of Nevada, Sweat agreed to plead guilty in justice court to one count of battery constituting domestic violence, a misdemeanor, and in district court to one count of battery constituting substantial bodily harm, a felony. In exchange for his pleas, the State agreed to drop the charge of battery constituting domestic violence as a felony. Per the agreement, Sweat pleaded guilty to the misdemeanor battery constituting domestic violence and was immediately sentenced to time served. Sweat also waived his right to a preliminary hearing and was bound over to district court for entry of plea on the felony count of battery causing substantial bodily harm.

Despite his prior agreement with the State, Sweat refused to plead guilty in the district court. As a result, the State filed an amended information pursuant to NRS 173.035, reinstating the original felony battery constituting domestic violence charge that it had dropped pursuant to the terms of the plea agreement. Sweat filed a motion to dismiss, arguing that his misdemeanor conviction in the justice court barred prosecution of the felony offense in the district court. The district court denied Sweat’s motion. The district court held that plea agreements are subject to contract principles and that Sweat violated the spirit of negotiations by reneging on the plea agreement. The district court ordered the State to place the misdemeanor matter back on the calendar with the justice court to withdraw adjudication on the misdemeanor charge.

As a result, Sweat petitioned the Supreme Court of Nevada for a writ of prohibition, alleging that since he had already been convicted of misdemeanor battery in the justice court, the Double Jeopardy Clause protected him from prosecution for felony battery constituting domestic violence in the district court.

Is misdemeanor battery constituting domestic violence a lesser-included offense of a felony domestic violence charge?

The Double Jeopardy Clause, as recognized by the United States Constitution and the Nevada Constitution, “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 v. State, 128 Nev. 598, 604, 291 P.3d 1274, 1278; see Nev. Const. art. 1, § 8. At issue in this case is the second protection: Sweat argued that he was being prosecuted twice for the same offense.

The Court explained that the same offense is prosecuted where the elements of one offense are entirely included within the elements of a second offense. Barton v. State, 117 Nev. 686, 692, 30 P.3d 1103, 1107 (2001); see also Estes v. State, 122 Nev. 1123, 1143, 146 P.3d 1114, 1127 (“To determine the existence of a lesser-included offense, this court looks to whether the offense in question cannot be committed without committing the lesser offense.”) The Court noted that the elements for the felony offense are identical to those elements required for a misdemeanor offense, with the additional requirement that for it to be considered a felony there must be two prior misdemeanors convictions for battery constituting domestic violence within the previous seven years. See NRS 33.018; NRS 200.481; NRS 200.485(1)(c). Thus, the misdemeanor offense constituted “a lesser included offense and the Double Jeopardy Clause prohibits a prosecution for both offenses.” United States v. Dixon, 509 U.S. 688, 696 (1993); see also Estes, 122 Nev. at 1143, 146 P.3d at 1127.

Did Sweat waive his double jeopardy claim by accepting a plea agreement and subsequently failing to comply with his obligations under the agreement?

The Court noted that the United States Supreme Court’s decision in Ricketts guided its decision in this case. Ricketts v. Adamson, 483 U.S. 1, 8 (1987). In Ricketts, the defendant was indicted for first-degree murder, but pleaded guilty to the lesser offense of second-degree murder in exchange for his testimony against two other suspects. The plea agreement provided that should the defendant refuse to testify or should he at any time testify untruthfully, then the entire agreement would be null and void and the original charge would be automatically reinstated. The state trial court accepted the plea agreement and the proposed sentence, but withheld imposition of the sentence. The defendant testified at trial and the two suspects were convicted of first-degree murder. While the suspects’ convictions and sentences were on appeal, the defendant was sentenced as per the terms of the plea agreement. However, the suspects’ convictions and sentences were later reversed by the Arizona Supreme Court and that court remanded their cases for retrial.

During the second trial, the defendant was asked to testify as he had during the first trial. The defendant refused to testify a second time. The State thereafter filed a new information charging the defendant with first-degree murder. The defendant’s conviction on the lesser offense was vacated, and he was tried and convicted of first-degree murder.

The Court explained that United States Supreme Court held that the trial on first-degree murder after the defendant had already pleaded guilty to second-degree murder did not violate double jeopardy principles because the defendant waived his double jeopardy claims when he pleaded guilty and then breached the plea agreement. Although the Ricketts court noted that the plea agreement did not explicitly mention the double jeopardy clause or explicitly declare that the defendant would waive his double jeopardy rights if he violated the agreement, it deemed the plea agreement’s terms – which stated that the original first-degree murder charges would be automatically reinstated and the parties would be returned to the positions they occupied before the agreement should the defendant breach the plea agreement – to be the functional equivalent of an explicit waiver of the defendant’s double jeopardy rights in the event he breached the agreement. The Ricketts court stated that “the Double Jeopardy Clause does not relieve [a defendant] from the consequences of [the] choice” to breach a plea agreement.

The Court further noted that other courts have similarly held that a defendant waives his double jeopardy rights where he fails to comply with his obligations under a guilty plea agreement, even if the terms of the agreement do not explicitly address double jeopardy. In State v. De Nistor, for example, the Supreme Court of Arizona, without addressing whether the plea bargain notified the defendant of her double jeopardy rights, stated that a defendant “of course waives the jeopardy defense” if the defendant “after acceptance of a guilty plea by the court, moves to withdraw his guilty plea” and the withdrawal is granted. State v. De Nistor, 694 P.2d 237, 242 (Ariz. 1985). Similarly, in Dutton v. State, the Alaska Court of Appeals held that reinstatement of third-degree assault charges after a defendant was convicted of fourth-degree assault charges, as part of a plea deal, did not violate the defendant’s double jeopardy rights where the defendant withdrew from his plea deal. Dutton v. State, 970 P.2d 925, 935 (Alaska Ct. App. 1999). This applied although the plea agreement did not explicitly outline waiver of double jeopardy as part of the remedies upon withdrawal of the plea. The Dutton court stated that “criminal defendants may relinquish their double jeopardy rights by their conduct . . . even though no judicial officer ever explains the double jeopardy consequences of his conduct beforehand.” The Dutton court held that, under these circumstances, the State could seek rescission of the plea agreement and reinstate the original charges.

The Supreme Court of Nevada agreed and held that Sweat waived his right to be free from multiple prosecutions when he voluntarily failed to comply with the terms of his plea agreement with the State. The Court explained that the State agreed to drop the felony battery constituting domestic violence charge and allow Sweat to plead guilty in justice court to the charge of misdemeanor battery constituting domestic violence in exchange for Sweat pleading guilty in the district court to battery resulting in substantial bodily harm. Thus, Sweat only obtained the lesser charge as part of the plea bargain with the State. After he had been sentenced to credit for time served for the misdemeanor conviction, obtaining one of the benefits of his bargain, Sweat voluntarily failed to follow through with the remaining terms of the plea agreement, then looked to the Double Jeopardy Clause to protect him from the consequences of his decision to back out of the deal. The Court further explained that as it stated in Righetti v. Eighth Judicial District Court, “[t]he Double Jeopardy Clause was designed to protect defendants from harassment and oppression, not to shield defendants from their decisions to gamble on novel interpretations of law which ultimately prove unsuccessful.” Righetti v. Eighth Judicial District Court, 133 Nev., Adv. Op. 7, 388 P.3d 643, 649 (2017).

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