619 F. 2d 598 - Sims v. Engle

This case is an appeal from a denial of a writ of habeas corpus. We reverse the order of the district court and remand for issuance of the writ.

On February 27, 1962, the Juvenile Division of the Cuyahoga County Court of Common Pleas in the State of Ohio (Juvenile Court) issued a citation and warrant against appellant. The citation and warrant alleged that appellant had participated in several armed robberies. Appellant, who was seventeen years old at that time, was taken into custody and brought before the Juvenile Court on March 27, 1962 for a hearing. No transcript or record of the hearing was made. The Juvenile Court determined in accordance with the existing provisions of Section 2151.26 of the Ohio Revised Code1 to bind the appellant over to the Cuyahoga County Court of Common Pleas Criminal Division for trial as an adult. The Juvenile Court entered its decision on the docket as a journal entry, which read:

TO COURT: This twenty-seventh day of March, 1962, James Samuel Sims, a minor of about the age of seventeen years, came before the Honorable Albert A. Woldman upon the petition of Charles R. Reynolds alleging that James Samuel Sims is a delinquent child in this: that on or about February 16, 1962, at 4502 St. Clair Avenue, Cleveland, Ohio, he did unlawfully, and by putting in fear while armed with a dangerous weapon to wit, a pistol, rob from the person of one, Dorothy Kulas, cash in the approximate amount of $1069.00, contrary to the statute in such case made and provided for and against the peace and dignity of the State of Ohio. That on or about February 18, 1962, at 3005 Woodhill Road, Cleveland, Ohio, he did unlawfully, purposely and while in the perpetration of a robbery, kill one, William C. Beasley, contrary to the form of the statute in such case made and provided for and against the peace and dignity of the State of Ohio. That on or about February 23, 1962, at 6938 Kinsman Road, Cleveland, Ohio, he did unlawfully, and by putting in fear while armed with a dangerous weapon, to wit, a pistol, rob from the person of one, David Warren, cash in the approximate amount of $104.50, contrary to the form of the statute in such case made and provided for and against the peace and dignity of the State of Ohio. It appearing to the Court that said child has committed acts which, if committed by an adult, would be felonies, a mental and physical examination having been made by duly qualified persons as provided by statute, it is hereby ordered that pursuant to Section 2151.26 Ohio Revised Code the said James Samuel Sims be bound over to the Court of Common Pleas of Cuyahoga County for further proceedings according to law. It is ordered that said James Samuel Sims be, and he hereby is, committed to the Jail of Cuyahoga County.

Following the bindover, the Cuyahoga County Grand Jury indicted appellant on two counts of first degree murder. Appellant pled not guilty to these charges, but later withdrew this plea and entered a plea of guilty to homicide generally, which was accepted, and waived a trial by jury. According to then current Ohio law, appellant was tried before a three judge court solely on the issue of the degree of culpability. Ohio Rev.Code Section 2945.06. Appellant was found guilty of first degree murder on both counts of the indictment and was sentenced to two consecutive terms of life imprisonment. The court rejected appellant's motions for reconsideration of the sentence and to vacate and set aside the judgment.

On May 17, 1976, appellant filed a very belated pro se motion for leave to appeal and a motion to proceed in forma pauperis with the Ohio Eighth District Court of Appeals. The Court of Appeals granted both motions on June 9, 1976 and appointed counsel for appellant. In appealing his 1962 conviction, appellant assigned two errors. First, appellant alleged that the trial and conviction before the Court of Common Pleas Criminal Division subsequent to the hearing and order of the Juvenile Court put him in double jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Second, appellant asserted that the trial court had failed to determine whether appellant had knowingly, intelligently and voluntarily entered his guilty plea. The Court of Appeals found no error and affirmed appellant's conviction and sentence. State v. Sims, 55 Ohio App.2d 285, 380 N.E.2d 1350, 9 Ohio Op.3d 417 (Ct.App.1977). Upon further appeal, the Supreme Court of Ohio dismissed the appeal on April 7, 1978 for failure to state a substantial constitutional question. State v. Sims, Case No. 78-140 (Supreme Court of Ohio, 1978).

Winning no relief in the state courts, appellant petitioned for a writ of habeas corpus in the Northern District of Ohio on the same two grounds asserted in state court. The district court found no merit in either argument advanced by appellant and denied the writ. Appellant then filed a timely appeal with this court. Because we have determined that appellant was subjected to double jeopardy in the state court proceedings and is therefore entitled to the writ of habeas corpus, we do not address the issue of the voluntariness of the guilty plea.

While juvenile court practices may now be scrutinized for compliance with constitutional standards, it was not always so. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), provides insight into the basis of the Supreme Court's discomfort with the prior lack of scrutiny. The Court posed the problem in these words:

While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guarantees applicable to adults.

383 U.S. at 555-56, 86 S.Ct. at 1054.

The Supreme Court resisted the temptation to pass on the precise question at that time. Yet in the following year, it squarely confronted and decided the issue in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

In holding in In re Gault that constitutional guarantees must be accorded to juveniles, the Supreme Court declared: ". . . neither the Fourteenth Amendment nor the Bill of Rights is for adults alone," 387 U.S. at 538, 87 S.Ct. at 1436, and, ". . . it would be extraordinary if our Constitution did not require the procedural regularity and exercise of care implied in the phrase 'due process' . . ." 387 U.S. at 546, 87 S.Ct. at 1444.

These holdings in Kent and Gault, along with In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), decided several years later, provide the sturdy decisional underpinning for Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), and our holding in this case.

The double jeopardy clause of the Fifth Amendment applies to state court proceedings through the force of the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The double jeopardy clause has been held specifically applicable to state juvenile court proceedings. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), and applies retroactively to proceedings conducted before 1975. Holt v. Black, 550 F.2d 1061 (6th Cir. 1977). The constitutional principles governing this case and the facts of the case are undisputed. At issue is the application of the constitutional principles to the set of facts presented. Because a question of law is presented, our scope of review is free from the clearly erroneous standard.

The crux of this case is whether appellant was placed in jeopardy at the March 27, 1962 hearing in the Juvenile Court. It is firmly established that jeopardy attaches "when the Juvenile Court, as the trier of the facts, began to hear evidence." Breed v. Jones, 421 U.S. at 531, 95 S.Ct. at 1787.2 We now determine that the Juvenile Court was acting as the trier of facts at the March 27, 1962 hearing. Breed v. Jones is indistinguishable in all significant respects from the facts in the case at bar and compels our conclusion that appellant's constitutional right against double jeopardy was violated.

In Breed v. Jones, a petition was filed in the Superior Court of California, alleging that Jones, a seventeen year old male, was a delinquent under the provisions of Cal.Welf. & Inst'ns Code Section 602 (1966), in that he had committed acts, which if committed by an adult, would constitute the crime of armed robbery. After a detention hearing, at which the probation officer was required to present only a prima facie case that Jones had committed the alleged offense, Jones was ordered detained pending a hearing on the petition. Several weeks later the Juvenile Court conducted the adjudicatory hearing pursuant to Cal.Welf. & Inst'ns Code Section 701 (1966).3 The Juvenile Court in the Section 701 hearing addressed only the question of whether Jones was a delinquent within the meaning of Section 602. The Juvenile Court heard testimony and found that the allegations in the petition were true and that Jones was a delinquent as defined by Section 602. The Juvenile Court then ordered Jones detained until the dispositional hearing required by Cal.Welf. & Inst'ns Code Section 702 (Supp.1968). At the dispositional hearing, the Juvenile Court found Jones unfit for rehabilitation through the facilities of the Juvenile Court and ordered Jones prosecuted as an adult. Cal.Welf. & Inst'ns Code Section 707 (Supp.1967).4

Determining that jeopardy had attached at the point in time of the Section 701 hearing, at which the Juvenile Court made a finding that Jones had committed the alleged offenses, the United States Supreme Court held that the subsequent prosecution of Jones as an adult violated the double jeopardy clause. 421 U.S. at 531, 95 S.Ct. at 1786.

The Ohio Juvenile Code in 19625 was strikingly similar to the California juvenile law under examination in Breed v. Jones, though the procedure in Ohio juvenile courts was marked by greater informality. The Juvenile Court, possessing exclusive jurisdiction in any matter "concerning any child who . . . is (a) . . . delinquent . . ." (Ohio Rev.Code Section 2151.23), would issue a citation (Ohio Rev.Code Section 2151.28) or a warrant (Ohio Rev.Code Section 2151.30) to assume custody over a child. The Juvenile Court could then order the child released in the custody of parents or other responsible persons or detained in a detention center, as was appellant. Ohio Rev.Code Section 2151.31. The Juvenile Court next conducted a hearing in an informal manner (Ohio Rev.Code Section 2151.35),6 at which the child could be represented by counsel and could present evidence in his behalf. The rules of civil procedure and evidence were ordinarily followed. State v. Shardell, 107 Ohio App. 338, 153 N.E.2d 510 (1958). To maintain its jurisdiction and to enter a dispositional order, the Juvenile Court was required to make a finding of delinquency,7 supported by the preponderance of the evidence.8 Id. At the hearing the Juvenile Court judge had full authority to commit the child to the Ohio State Reformatory or Boys Industrial School, to place the child with a suitable family, to put the child on probation, or to transfer the child to the Court of Common Pleas Criminal Division for prosecution as an adult. Ohio Rev.Code Section 2151.35. The Juvenile Court possessed full and exclusive jurisdiction and power over the child until the entry of a transfer or bindover order. Ohio Rev.Code Sections 2151.53, 2151.26, 2151.38. Before entering an order to transfer, the Juvenile Court was required by statute to make a finding of delinquency, that is, that the child had committed the alleged offenses, based on a full investigation of the facts. Ohio Rev.Code Section 2151.26;9 In re Jackson, 21 Ohio St.2d 215, 257 N.E.2d 74 (1970).

In the case at bar, appellant was brought before the Juvenile Court for a hearing. The Juvenile Court judge at the conclusion of the hearing bound appellant over to the Court of Common Pleas Criminal Division for prosecution as an adult. Appellant was prosecuted as an adult for the same acts which were the basis of the delinquency hearing. Because the Ohio statute required a full investigation of the facts underlying the charge of delinquency and a finding of delinquency that appellant had committed acts in violation of state law, the Juvenile Court possessed the power of, and acted as, a trier of fact as defined in Breed v. Jones. Therefore, jeopardy attached at the March 27, 1962 hearing and the subsequent criminal prosecution for the same acts contravened appellant's constitutional protection against double jeopardy.

The district court reached its erroneous conclusion by focusing on the end product of the Juvenile Court proceeding, the journal entry, rather than the statutory powers of the Juvenile Court at the March 27, 1962 hearing. The district court found the journal entry inconclusive and determined that the journal entry gave no indication of an adjudicatory hearing or finding of delinquency. Citing to dicta in Brenson v. Havener, 403 F.Supp. 221 (N.D.Ohio 1975), the district court stated that some juvenile judges did not follow the required statutory practice of determining delinquency before a bindover order and then held that it would not assume the juvenile judge in this case followed the statutory procedure.10

The district court's reasoning overlooks the essential factors that the juvenile judge was empowered to impose sanctions at the March 27, 1962 hearing, that evidence was taken,11 and that the liberty and reputation of the appellant were put in risk at that time. Breed v. Jones, 421 U.S. at 531-32, 95 S.Ct. at 1786-87. See also Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978). The rendering of a final judgment is immaterial to the applicability of the double jeopardy clause. Swisher v. Brady, 438 U.S. at 214-15, 98 S.Ct. at 2706. Accordingly, the much disputed meaning of the Juvenile Court's journal entry is irrelevant and unnecessary to the disposition of this case.12 What actually occurred at the March 27, 1962 hearing is also insignificant. Once the Juvenile Court, possessing the jurisdiction and power to enter final orders levying a wide range of possible sanctions, began a hearing, not limited in scope by statute to a preliminary or probable cause hearing, jeopardy attached and appellant possessed the constitutional right to have the Juvenile Court, as the original trier of fact, determine his fate. Swisher v. Brady, 438 U.S. at 214-15, 98 S.Ct. at 2706; Breed v. Jones, 421 U.S. at 528-31, 95 S.Ct. at 1785-86. Accord State v. Eppinger, Case No. 35489 (Ct.App., July 14, 1977). Compare Hall v. McKenzie, 575 F.2d 481 (4th Cir. 1978), and McGaha v. Tennessee, 461 F.Supp. 360 (E.D.Tenn.1978) (jurisdiction of juvenile court strictly limited by statute so jeopardy did not attach.)

Invocation in this situation of the double jeopardy clause fosters several of its salutary constitutional purposes. First, the juvenile would be saved the embarrassment, expense and ordeal resulting from two trials. Second, the prosecution would be prevented from refining its case in Juvenile Court for presentation in the Court of Common Pleas Criminal Division, a practice which would enhance the risk of an innocent defendant being found guilty. Finally, the prosecutor would not be allowed to shop for sentences by bringing successive prosecutions for the same offense before different courts.

IT IS THEREFORE ORDERED that the order of the district court is reversed and that the case is remanded to the district court for issuance of the writ of habeas corpus.

Respondent-appellee Ted Engle has filed a petition for rehearing, arguing that the opinion of this Court would require the release of every juvenile who was bound over according to the procedures of former Ohio Rev.Code Sec. 2151.26. Respondent's argument overstates the holding of the opinion. Our opinion does not decide that there is a violation of double jeopardy, if the record of the juvenile court hearing plainly establishes that the hearing was limited to a determination of probable cause, after which the juvenile was ordered to stand trial as an adult in the Court of Common Pleas.