Attorney for Appellant
Attorneys for Appellee
John Pinnow Steve Carter
Special Assistant to the Public Defender of Indiana Attorney General of Indiana
Indianapolis, Indiana Indianapolis, Indiana
Christopher C.T. Stephen
Deputy Attorney General
Appeal from the Steuben County Superior Court, No. 76D01-0208-FB-924
The Honorable William C. Fee, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 76A03-0306-CR-209
March 11, 2005
The Court of Appeals resolved both claims in Defendants favor, finding that the
State had failed to prove that a conviction was entered on Defendants March,
1998, guilty plea. That offense was the predicate offense for the Class
B enhancement and a necessary predicate for the habitual substance offender enhancement.
Jaramillo v. State, 803 N.E.2d 243 (Ind. Ct. App. 2004). The State
does not challenge this determination on transfer. However, the Court of Appeals
also held that federal double jeopardy principles did not bar the State from
retrying the defendant on the Class B and habitual substance offender enhancements.
Id. at 250. Defendant seeks transfer on this issue.
Monge arose under Californias so-called three-strikes law. After the defendant in Monge
had been convicted, the trial court judge enhanced his sentence based on prior
convictions and prison terms. Monge, 524 U.S. at 725. The California
Court of Appeal ruled that the evidence had been insufficient to trigger the
sentence enhancement because the prior conviction allegations had not been proved beyond a
reasonable doubt, and that a remand for retrial on the sentence enhancement would
violate double jeopardy principles. Id. at 725-26. After the California Supreme
Court reversed the California Court of Appeal, the United States Supreme Court affirmed
the California high court and held that the Double Jeopardy Clause did not
preclude retrial on the prior conviction allegation. Id. at 734. As
such, Monge resolves in the States favor the issue presented in this case.
Monge was decided before Apprendi v. New Jersey, 530 U.S. 466 (2000), and
contains a debate that foreshadows that momentous decision. In dissent in Monge,
Justice Scalia argued that the prior offense enhancement constituted an element of the
defendants offense and, therefore, implicated Double Jeopardy principles. Monge, 524 U.S. at
740 (Scalia, J., dissenting). A majority of the Court rejected Justice Scalias
argument, both because the issue was not raised by the defendant and because
the argument was contrary to the Courts then-controlling precedent on what constituted elements
of an offense, Almendarez-Torres v. United States, 523 U.S. 224 (1998). Monge,
524 U.S. at 728 (Almendarez-Torres, as well as Monge, involved the question of
whether the fact of prior conviction used to support a recidivist enhancement constitutes
as element of an offense.). In 2000, the Supreme Court decided Apprendi,
largely adopting Justice Scalias views of what constitute elements of an offense as
expressed in his prior dissents in Monge and Alamendarez-Torres. Apprendi, 530 U.S.
at 488-89 nn. 14 & 15. The question then, is whether Monge
and Almendarez-Torres were overruled by Apprendi or are distinguishable from it.
Defendant contends that the practical effect of Apprendi was to overrule Monge, because,
according to his count, a majority of the members of the Court have
now taken positions contrary to its holding. The Court of Appeals found
Defendants argument to be plausible but refused to speculate as to whether a
majority of the Supreme Court would vote to overturn Monge.
v. State, 803 N.E.2d 243, 250 (Ind. Ct. App. 2004). In point
of fact, Apprendi discusses Monge without suggesting that it is no longer good
law. Apprendi, 530 U.S. at 488 n. 14. And last year,
the Court cited Monge in an opinion as standing for the proposition that
the Double Jeopardy Clause does not preclude retrial on a prior conviction used
to support recidivist enhancement. Dretke v. Haley, 124 S.Ct. 1847, 1853 (2004).
Given that Apprendi exempts from its reach the fact of a prior
conviction, it makes sense that Monge, involving as it does a fact of
a prior conviction, would be distinguishable from Apprendi. See Apprendi, 530 U.S.
at 490 (concluding that any fact that increases the penalty for a crime
beyond the prescribed statutory maximum, other than the fact of a prior conviction,
must be submitted to a jury and proved beyond a reasonable doubt) (emphasis
We hold that Monge is good law and permits the State to retry
The general rule of sufficiency is that if a conviction is reversed on
appeal because the State failed to present sufficient evidence to support the conviction
beyond a reasonable doubt, the Double Jeopardy Clause precludes retrial. Tibbs v.
Florida, 457 U.S. 31, 41 (1982); Burks v. United Sates, 437 U.S. 1
(1978); Greene v. Massey, 437 U.S. 19 (1978).
See footnote This Court has held
on several occasions that, following a reversal on a
ppeal of a habitual offender
enhancement on grounds of insufficient evidence, the State is not permitted to retry
the defendant on that offense. Bell v. State, 622 N.E.2d 450, 456
(Ind. 1993); Powers v. State, 617 N.E.2d 545, 547 (Ind. 1993) (Dickson, J.,
concurring); Perkins v. State, 542 N.E.2d 549 (Ind. 1989); Phillips v. State, 541
N.E.2d 925 (Ind. 1989). Monge holds to the contrary and overrules these
four decisions (but not the general rule that insufficiency of the evidence on
any element precludes retrial).
The history of this issue in our Court began with Durham v. State,
464 N.E.2d 321 (Ind. 1984), in which the defendant was initially convicted of
two underlying felonies but found not to be a habitual offender by a
jury. Durham, 464 N.E.2d at 323. Defendant filed a belated motion
to correct errors and the convictions were set aside. Id. The
State then re-filed charges on the two underlying counts as well as an
amended habitual offender count and obtained convictions. Id. On appeal, this
Court held that the defendant could be retried as a habitual offender even
though the jury during defendants first trial found that he was not.
Id. at 324. At that time, we reasoned that habitual criminality was
a status for the enhancement of punishment upon the conviction of an additional
substantive crime, was not a conviction of an additional crime, and was provided
for the purpose of more severely penalizing those persons whom prior sanctions have
failed to deter from committing felonies. Id. at 323-24.
In Perkins v. State, 542 N.E.2d 549 (Ind. 1989), we revisited this issue
and set aside our holding in Durham. After we reversed Defendants habitual
offender adjudication on grounds of insufficient evidence, the State retried Defendant and a
jury returned a verdict finding him to be a habitual offender. Perkins,
542 N.E.2d at 550. Relying on the Supreme Courts holding in Lockhart
v. Nelson, 488 U.S. 33 (1988), and citing its holding in Burks v.
United States, 437 U.S. 1 (1978), we concluded that because the Double Jeopardy
Clause affords the defendant who obtains a judgment of acquittal at the trial
level absolute immunity from further prosecution for the same offense it ought to
do the same for the defendant who obtains an appellate determination that the
trial court should have entered a judgment of acquittal. Perkins, 542 N.E.2d
at 551. In arriving at our conclusion in Perkins, we explicitly overruled
Durham. Id. at 552.
Perkins was later criticized by the Illinois Court of Appeals in People v.
Brooks, 559 N.E.2d 859 (Ill. Ct. App. 1990). In Brooks, the defendant
challenged the States ability to re-sentence him as a Class X offender (an
enhancement for prior convictions) under the Double Jeopardy Clause in the event that
the court found that the state had failed to present sufficient evidence to
sustain his initial conviction. Brooks, 559 N.E.2d at 860-61. The court
reversed the defendants Class X offender conviction but held that he could be
re-sentenced on that charge. Id. at 869. The Illinois court found
our reasoning in Durham to have been more persuasive than Perkins. Id.
at 866 n.3.
We grant transfer pursuant to Indiana Appellate Rule 58(A), summarily affirm the opinion
of the Court of Appeals as to the issue discussed in footnote three,
and remand this case to the trial court.
Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J., concurs in