Opinion
A20A0050
06-26-2020
The STATE v. ADAMS.
Kenneth W. Mauldin, District Attorney, Malachi Reid Peacock, Assistant District Attorney, for Appellant. Kelly Virginia Wegel, for Appellee.
Kenneth W. Mauldin, District Attorney, Malachi Reid Peacock, Assistant District Attorney, for Appellant.
Kelly Virginia Wegel, for Appellee.
Rickman, Judge.
The question presented in this case is whether OCGA § 16-1-8 (c), Georgia's statutory law governing successive prosecutions for crimes that violate both state and federal law, prohibits the State of Georgia from prosecuting Samuel Carlton Adams for trafficking methamphetamine after Adams, who was also indicted in federal court on crimes stemming from the same set of facts, reached a plea agreement in federal court pursuant to which he pled guilty to a weapons charge in exchange for the dismissal of the drug charges pending against him. We conclude that it does not. Accordingly, we reverse the trial court's order granting his plea in bar on the charge of trafficking methamphetamine. In so doing, we take the time to clarify our case law and to disapprove of the holding in State v. Smith , 185 Ga. App. 694, 365 S.E.2d 846 (1988), upon which the trial court relied, and similar cases that unnecessarily conflate the constitutional protection of double jeopardy with the statutory protections against successive prosecution offered by OCGA § 16-1-8. The evidence in this case is uncontroverted and witness credibility is not an issue; accordingly, we review de novo the trial court's application of the law to the facts when it granted the plea in bar pursuant to OCGA § 16-1-8 (c). See State v. Pruiett , 324 Ga. App. 789, 790, 751 S.E.2d 579 (2013).
We have circulated this decision among all nondisqualified judges of the Court to consider whether this case should be passed upon by all members of the Court. Fewer than the required number of judges, however, voted in favor of a hearing en banc on the question of overruling State v. Smith , 185 Ga. App. 694, 365 S.E.2d 846 (1988), as well as Smith's progeny and the cases that have relied on Smith as set forth in footnote 11 of this opinion.
The procedural history is as follows. In August 2017, Adams was arrested and subsequently indicted in the Athens-Clarke County Superior Court on, among other things, one count of trafficking methamphetamine (more than 400 grams) (the "State Case"). Adams pled not guilty, and the State Case was placed on the December 2018 jury calendar.
Meanwhile, in March 2018, based on the same conduct underlying the state charges, Adams was indicted in the United States District Court for the Middle District of Georgia on, among other things, one count of possession with intent to distribute methamphetamine and possession of a firearm by a convicted felon (the "Federal Case").
See 21 USC § 841 (a) (1), (b) (1) (B) (viii).
In November 2018, Adams pled guilty in the Federal Case to one count of possession of a firearm by a convicted felon. The plea was given "in full satisfaction of all possible federal criminal charges, known to the United States Attorney at the time of [Adams's] guilty plea," and the remaining charges, including the charge of possession with intent to distribute methamphetamine, were dismissed.
Adams then filed a plea in bar in the State Case, asserting that OCGA § 16-1-8 barred the State from prosecuting him for trafficking methamphetamine because the drug charge had been dismissed by federal prosecutors in exchange for his guilty plea in the Federal Case. The trial court granted the motion after concluding that the federal prosecutor's dismissal of the drug charge in accordance with a plea agreement "acts as an acquittal and bars further prosecution" under OCGA § 16-1-8 (c).
The State appeals the trial court's grant of the plea in bar, contending that the trial court erred by holding that its prosecution of Adams for trafficking methamphetamine is precluded by the statutory protections contained within OCGA § 16-1-8 (c). We agree.
The State's appeal is authorized by OCGA § 5-7-1 (a) (1), (3) (permitting the State to appeal from an order "setting aside or dismissing any indictment" or "sustaining a plea or motion in bar, when the defendant has not been put in jeopardy").
Our analysis begins by recognizing that there is more than one potential bar to successive prosecutions in the State of Georgia. The first is constitutional double jeopardy. The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same [offense] to be twice put in jeopardy of life or limb." Likewise, the Georgia Constitution provides that "[n]o person shall be put in jeopardy of life or liberty more than once for the same offense[.]" Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII.
States are sovereigns separate from the federal government, however, "and a state's power to undertake criminal prosecutions is derived from its own inherent sovereignty." Calloway v. State , 303 Ga. 48, 52 (2), 810 S.E.2d 105 (2018). "Under the dual sovereignty doctrine, where a single act violates the law of two sovereigns (e.g., the United States and a state), an individual may be prosecuted and punished by each sovereign without violating double jeopardy." Id. No one disputes in this case that the State was not constitutionally barred under the dual sovereignty doctrine from prosecuting Adams for trafficking methamphetamine merely because the federal government elected not to do so in accordance with the terms of a plea agreement. See id.
Nevertheless, Georgia statutory law provides protection against successive prosecutions that extends beyond that of the protection offered by constitutional double jeopardy. See OCGA §§ 16-1-6, 16-1-7, 16-1-8 ; see generally Prater v. State , 273 Ga. 477, 480 (4), 545 S.E.2d 864 (2001). Those that involve successive federal and state prosecutions are governed by OCGA § 16-1-8 (c), which provides:
Although OCGA §§ 16-1-6, 16-1-7, and 16-1-8 should be read together when considering Georgia's statutory protection against successive prosecutions, see Prater v. State , 273 Ga. 477, 480 (4), 545 S.E.2d 864 (2001), neither OCGA § 16-1-6 or 16-1-7 is implicated by this case nor are they discussed in this opinion.
A prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.
See also Thorpe v. State , 251 Ga. App. 334, 334, 553 S.E.2d 171 (2001). Thus, in order for subsection (c) to act as a bar to a state prosecution, three elements must be met: (1) the crime must be within the State's concurrent jurisdiction; (2) the federal prosecution must have resulted in a conviction or acquittal; and (3) the state and federal prosecutions must be for the same conduct and must not require proof of a fact not required by the other (or the state crime must not have been complete at the time of the federal trial). See Calloway , 303 Ga. at 52 (2), 810 S.E.2d 105.
The State concedes that the first and third statutory elements have been met. The only issue here is whether, as the trial court held, the federal government's dismissal of the drug charge resulting from the plea agreement in the Federal Case amounted to an "acquittal" of that charge within the context of subsection (c).
As always, when construing the meaning of a statute, "we must presume that the General Assembly meant what it said and said what it meant." (Citation and punctuation omitted.) Deal v. Coleman , 294 Ga. 170, 172 (1) (a), 751 S.E.2d 337 (2013). "To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would." (Citations and punctuation omitted.) Id. at 172-73 (1) (a), 751 S.E.2d 337. "[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end." (Citation and punctuation omitted.) Id. at 173 (1) (a), 751 S.E.2d 337.
The plain language of subsection (c) bars the State from prosecuting Adams if the drug crime in the Federal Case "resulted in either a conviction or an acquittal." It did not.
Although "acquittal" is not defined in the statute itself, its dictionary definition is "[t]he legal certification, [usually] by jury verdict, that an accused person is not guilty of the charged offense; an official statement in a court of law that a criminal defendant is not guilty." Black's Law Dictionary (11th ed. 2019). A prosecutor's agreement to dismiss a criminal charge in exchange for a guilty plea on a different charge is, in essence, a contract between the defendant and the government. See generally Syms v. State , 331 Ga. App. 225, 227, 770 S.E.2d 305 (2015). But that dismissal alone in no way amounts to a legal determination of the defendant's guilt or innocence on the dismissed charge and, thus, does not amount to an "acquittal" for the purposes of OCGA § 16-1-8. Cf. Arnold v. State , 352 Ga. App. 777, 779-780, 835 S.E.2d 759 (2019) (holding that the reindictment by the State of a criminal charge that had been nolle prossed in a previous prosecution pursuant to a pretrial plea agreement did not amount to an "acquittal" so as to be barred by OCGA § 16-1-8 (b), but the subsequent prosecution was nonetheless barred by the plea agreement); see also Sample v. State , 232 Ga. App. 690, 692 (2), 503 S.E.2d 576 (1998) (recognizing that the State's consent to an order of nolle prosequi in the context of a plea agreement is not a concession that the crime was not committed). In holding otherwise, the trial court relied on State v. Smith , 185 Ga. App. 694, 365 S.E.2d 846 (1988). Smith did not involve successive prosecutions by federal and state governments under subsection (c), which is the only subsection governing prosecutions by different sovereigns. See Thorpe , 251 Ga. App. at 334, 553 S.E.2d 171. Rather, Smith invoked the "rule of criminal res judicata" contained in paragraph (b) (1), involving successive prosecutions by the same sovereign, i.e., the State. See Smith , 185 Ga. App. at 695-696, 365 S.E.2d 846 ; Drinkard v. Walker , 281 Ga. 211, 214, 636 S.E.2d 530 (2006). Regardless, like subsection (c), paragraph (b) (1) bars a second prosecution when, among other things, the first prosecution "[r]esulted in either a conviction or an acquittal." Because the relevant language of paragraph (b) (1) mirrors that of subsection (c), and because the trial court's reliance on Smith was reasonable, we will take the time to address its faulty reasoning.
In its entirety, OCGA § 16-1-8 (b) provides:
A prosecution is barred if the accused was formerly prosecuted for a different crime or for the same crime based upon different facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge), or is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution or unless the crime was not consummated when the former trial began; or
(2) Was terminated improperly and the subsequent prosecution is for a crime of which the accused could have been convicted if the former prosecution had not been terminated improperly.
Smith involved a defendant who was charged in state court under a four-count accusation related to her driving under the influence of alcohol. See Smith , 185 Ga. App. at 694, 365 S.E.2d 846. She entered into an agreement with an assistant solicitor-general pursuant to which she agreed to plead guilty to two of the charges in exchange for the State's dismissal of the other two. Id. The trial court accepted the plea and the remaining charges were dismissed. Id. Prior to sentencing, the solicitor-general, claiming that his assistant failed to accurately follow instructions, attempted to prosecute the defendant on one of the previously dismissed charges. Id. at 694-95, 365 S.E.2d 846. In a rather inartfully worded opinion, the Smith Court held that paragraph (b) (1) precluded the solicitor-general's successive prosecution, a holding that required an implicit conclusion that a dismissal of that count amounted to an "acquittal" under OCGA § 16-1-8.
We note that Smith could have been decided using contract principles. See Syms , 331 Ga. App. at 227, 770 S.E.2d 305 ("A plea agreement is, in essence, a contract between a defendant and the State.") (citation and punctuation omitted).
Applying the same rules of statutory construction to paragraph (b) (1) that we applied to the same language of subsection (c) above, we overrule Smith to the extent that it can be read to equate the dismissal of a criminal charge pursuant to a guilty plea with an "acquittal" for the purposes of OCGA § 16-1-8 (b) (1). See Lathrop v. Deal , 301 Ga. 408, 442 (III) (C), 801 S.E.2d 867 (2017) ("[W]hen the same words are used in different parts of a single constitutional or statutory enactment, the courts generally assume – absent some clear indication otherwise – that the words are used in the same sense."); Allen v. Donaldson , 12 Ga. 332, 335 (1852) ("[T]he same term or phraseology occurring in the same [s]tatute, is to receive the same interpretation, unless there be something in the [statute] which renders this construction manifestly improper.").
But Smith is problematic for another reason. By framing its holding within the context of OCGA § 16-1-8 (b) (1) and yet failing to engage in any meaningful statutory analysis, Smith relied on and perpetuated misguided precedent that conflates the concept of constitutional double jeopardy with the statutory protection afforded by OCGA § 16-1-8. Specifically, Smith predicated the application of OCGA § 16-1-8 (b) on a defendant having first been "placed in jeopardy," relying on case law that injected jeopardy into the definition of "prosecuted" for the purposes of the statute. Smith , 185 Ga. App. at 696, 365 S.E.2d 846 ; see also Cochran v. State , 176 Ga. App. 58, 60, 335 S.E.2d 165 (1985) ("For purposes of ... OCGA § 16-1-8, a defendant has been prosecuted on an indictment or accusation only after he has been initially placed in jeopardy.") (citation and punctuation omitted).
Some of the confusion is likely spawned from our use of the term "procedural double jeopardy" when referring to OCGA § 16-1-8 (b) (in conjunction with OCGA § 16-1-7 (b) ). See generally Pruiett , 324 Ga. App. at 794 (1) (b), 751 S.E.2d 579.
Smith further held that, "a plea of guilty ... with its entry on the record and acceptance by the trial judge constitutes jeopardy." Id. at 696, 365 S.E.2d 846. We note that if and when jeopardy attaches to a guilty plea is itself an issue of some debate. Compare generally United States v. McIntosh , 580 F.3d 1222, 1227 (III) (11th Cir. 2009) ("[J]eopardy normally attaches when the court unconditionally accepts a guilty plea.") (citation and punctuation omitted), with United States v. Santiago Soto , 825 F.2d 616, 620 (1st Cir. 1987) ("We hold that jeopardy did not attach when the district court accepted the guilty plea to the lesser included offense and then rejected the plea without having imposed sentence and entered judgment."). For the purpose of this appeal, however, we need to go no further than recognizing that the attachment of jeopardy plays no part in the protections offered by OCGA § 16-1-8.
But nothing in the plain language of OCGA § 16-1-8 predicates the application of its provisions on the attachment of jeopardy. Rather, pertinent to our holding, the bar is established if an accused was "formerly prosecuted" and, as previously discussed, the prosecution resulted in "either a conviction or an acquittal." See OCGA § 16-1-8 (b) (1), (c). "Prosecution" is defined as "all legal proceedings by which a person's liability for a crime is determined," and a "conviction" includes "a final judgment of conviction entered ... upon a plea of guilty." OCGA § 16-1-3 (4), (14). Simply put, jeopardy plays no part in the determination of whether a successive prosecution is statutorily barred by OCGA § 16-1-8.
For these reasons, we overrule Smith to the extent that it can be read to stand for the proposition that the dismissal of a criminal charge amounts to an "acquittal" for the purposes of OCGA § 16-1-8, and further overrule Smith , its progeny, and the cases in which it has been cited for the proposition that jeopardy must attach before the statutory bar set forth in OCGA § 16-1-8 is triggered.
Those cases include, but are not necessarily limited to, Goodwin v. State , 341 Ga. App. 530, 802 S.E.2d 3 (2017) ; State v. Jones , 290 Ga. App. 879, 661 S.E.2d 573 (2008) ; State v. Daniels , 206 Ga. App. 443, 425 S.E.2d 366 (1992) ; Geckles v. State , 177 Ga. App. 70, 338 S.E.2d 473 (1985) ; Cochran v. State , 176 Ga. App. 58, 335 S.E.2d 165 (1985) ; Caldwell v. State , 171 Ga. App. 680, 320 S.E.2d 888 (1984).
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Judgment reversed.
Dillard, P. J., and Brown, J., concur.