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Media Alerts - Volpe v. Trim - 6th Circuit
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February 22, 2013
  Volpe v. Trim - 6th Circuit
2013-02-011

Headline: Sixth Circuit rejects prisoner's double-jeopardy argument urging retroactive application of new, post-conviction precedent.

Area of Law: Criminal, Double Jeopardy

Issue(s) Presented: Can a habeas petitioner convicted of two state offenses avoid consecutive-term sentences based on retroactive application of a state-court decision released after her conviction became final?

Brief Summary: A prisoner appealed her sentence to consecutive prison terms for aggravated vehicular homicide and operating a vehicle while under the influence. The prisoner argued that the offenses were similar and that the prison terms thus should have been merged rather than consecutive. The prisoner argued that the consecutive-term sentencing violated the Double Jeopardy Clause of the Fifth Amendment, which prohibits cumulative punishments for the same offense. She argued that the federal district court should have granted her habeas petition, and thus reduced her sentence, based on an Ohio Supreme Court decision issued after her state-court conviction became final - a decision that changed Ohio's standards for consecutive-term sentencing. The Sixth Circuit held that the district court correctly assessed the prisoner's double-jeopardy claim based on Ohio precedent in place when she was convicted, rather than under Ohio's new standard.

Extended Summary: Volpe was driving drunk while her daughter was a passenger. Other motorists reported Volpe's erratic driving. Before police could locate Volpe's truck, Volpe lost control, drove off the road, and crashed into a tree. Her daughter died three days later from accident-related injuries.

Volpe was convicted of (1) operating a vehicle while under the influence and (2) aggravated vehicular homicide. The trial court ordered that the prison terms for the two offenses run consecutively, producing a total prison term of more than 26 years.

When Volpe was convicted, the Ohio Supreme Court applied the test from State v. Rance to determine whether cumulative punishments could be imposed for crimes arising from a single criminal act. The Rance test required Ohio courts to compare the elements of each offense to determine whether "the statutory elements of the crimes correspond to such a degree that the commission of one crime will result in the commission of the other." If so, then the defendant could not be punished separately for both crimes. Under this test, the Ohio courts found that Volpe could serve time for both crimes because the elements of operating a vehicle while under the influence and aggravated vehicular homicide were not so similar. For instance, a person could drive drunk but not cause death (operating a vehicle while under the influence), and a person could drive negligently or recklessly while sober but still cause a death (aggravated vehicular homicide).

Two years after Vople exhausted her appeals, the Ohio Supreme Court overruled and replaced the Rance test. In Ohio v. Johnson, the Ohio Supreme Court held that the proper test to determine whether two crimes were similar for double-jeopardy purposes is whether it is possible to commit both offenses with a single act. If so, the court must next determine whether the offenses actually were committed in a single act. If this is also true, the court explained, then the offenses are sufficiently similar to trigger double jeopardy and will be merged.

Applying this new test to Volpe's case would greatly reduce her sentence. So she filed a habeas corpus petition in federal court, arguing that under Ohio's new Johnson standard, her convictions and sentences for both offenses violated the Double Jeopardy Clause. The district court denied her petition.

The Sixth Circuit affirmed, holding that the multiple punishments here did not offend the Double Jeopardy Clause. Noting that state courts have the last word on matters of state law, the Sixth Circuit analyzed whether Ohio courts would have applied Johnson retroactively. After surveying Ohio cases, the court said no. The Sixth Circuit observed that in Ohio, a new judicial decision only applies to cases still pending on the decision date, not retroactively to a conviction that has already become final. "Because Rance was the controlling precedent at the time Volpe's conviction became final," the Sixth Circuit explained, Rance properly governed her case. Johnson's new standard did not.

Panel: Clay, White, and US District Judge Hood sitting by designation.

Argument: 10/12/2012

Date of Issued Opinion: 01/31/2013

Docket Number: No. 11-4365

Decided: Affirmed

Case Alert Author: Felix H. Sharpe II

Counsel: ARGUED: Sarah M. Schregardus, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio for Appellee. ON BRIEF: Sarah M. Schregardus, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio for Appellee.

Author of Opinion: Hon. Helene N. White

Case Alert Circuit Supervisor: Prof. Mark Cooney

    Posted By: Mark Cooney @ 02/22/2013 02:54 PM     6th Circuit  

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