# Lockhart v. Nelson/Opinion of the Court

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* Opinion of the Court
* Dissenting Opinion Marshall
Chief Justice Rehnquist delivered the opinion of the Court.
In this case a reviewing court set aside a defendant's conviction of enhanced sentence because certain evidence was erroneously admitted against him, and further held that the Double Jeopardy Clause forbade the State to retry him as a habitual offender because the remaining evidence adduced at trial was legally insufficient to support a conviction. Nothing in the record suggests any misconduct in the prosecutor's submission of the evidence. We conclude that in cases such as this, where the evidence offered by the State and admitted by the trial court—whether erroneously or not—would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial.
Respondent Johnny Lee Nelson pleaded guilty in Arkansas state court to burglary, a class B felony, and misdemeanor theft. He was sentenced under the State's habitual criminal [p35] statute, which provides that a defendant who is convicted of a class B felony and "who has previously been convicted of . . . [or] found guilty of four [4] or more felonies," may be sentenced to an enhanced term of imprisonment of between 20 and 40 years. Ark. Stat. Ann. § 41-1001(2)(b) (1977) (current version at Ark. Code Ann. § 5-4-501 (1987)). To have a convicted defendant's sentence enhanced under the statute, the State must prove beyond a reasonable doubt, at a separate sentencing hearing, that the defendant has the requisite number of prior felony convictions. § 41-1005 (current version at Ark. Code Ann. § 5-4-502 (1987)); § 41-1003 (current version at Ark. Code Ann. § 5-4-504 (1987)). Section 41-1003 of the statute sets out the means by which the prosecution may prove the prior felony convictions, providing that "[a] previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was convicted or found guilty," and that three types of documents, including "a duly certified copy of the record of a previous conviction or finding of guilt by a court of record," are "sufficient to support a finding of a prior conviction or finding of guilt." § 41-1003 (current version at Ark. Code Ann. § 5-4-504 (1987)). The defendant is entitled to challenge the State's evidence of his prior convictions and to rebut it with evidence [p36] of his own. § 41-1005(2) (current version at Ark. Code Ann. § 5-4-502(2) (1987)).
At respondent's sentencing hearing, the State introduced, without objection from the defense, certified copies of four prior felony convictions. Unbeknownst to the prosecutor, one of those convictions had been pardoned by the Governor several years after its entry. Defense counsel made no objection to the admission of the pardoned conviction, because he too was unaware of the Governor's action. On cross-examination, respondent indicated his belief that the conviction in question had been pardoned. The prosecutor suggested that respondent was confusing a pardon with a commutation to time served. Under questioning from the court, respondent agreed that the conviction had been commuted rather than pardoned, and the matter was not pursued any further. The case was submitted to the jury, which found that the State had met its burden of proving four prior convictions and imposed an enhanced sentence. The State courts upheld the enhanced sentence on both direct and collateral review, despite respondent's protestations that one of the convictions relied upon by the State had been pardoned.
[p37] Several years later, respondent sought a writ of habeas corpus in the United States District Court, contending once again that the enhanced sentence was invalid because one of the prior convictions used to support it had been pardoned. When an investigation undertaken by the State at the District Court's request revealed that the conviction in question had in fact been pardoned, the District Court declared the enhanced sentence to be invalid. The State announced its intention to resentence respondent as a habitual offender, using another prior conviction not offered or admitted at the initial sentencing hearing, and respondent interposed a claim of double jeopardy. After hearing arguments from counsel, the District Court decided that the Double Jeopardy Clause prevented the State from attempting to resentence respondent as a habitual offender on the burglary charge. 641 F. Supp. 174 (ED Ark. 1986). The Court of Appeals for the Eighth Circuit affirmed. 828 F.2d 446 (1987). The Court of Appeals reasoned that the pardoned conviction was not admissible under state law, and that "[w]ithout [it], the state has failed to provide sufficient evidence" to sustain the enhanced sentence. Id., at 449–450. We granted certiorari to review this interpretation of the Double Jeopardy Clause. 485 U.S. 904 (1988).
[p38] The Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, see Benton v. Maryland, 395 U.S. 784 (1969), provides that no person shall "be subject for the same offense to be twice put in jeopardy." It has long been settled, however, that the Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction. United States v. Ball, 163 U.S. 662 (1896) (retrial permissible following reversal of conviction on direct appeal); United States v. Tateo, 377 U.S. 463 (1964) (retrial permissible when conviction declared invalid on collateral attack). This rule, which is a "well-established part of our constitutional jurisprudence," id., at 465, is necessary in order to ensure the "sound administration of justice":
   "Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction." Id., at 466.
[p39] Permitting retrial after a conviction has been set aside also serves the interests of defendants, for "it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution." Ibid.
In Burks v. United States, 437 U.S. 1 (1978), we recognized an exception to the general rule that the Double Jeopardy Clause does not bar the retrial of a defendant who has succeeded in getting his conviction set aside for error in the proceedings below. Burks held that when a defendant's conviction is reversed by an appellate court on the sole ground that the evidence was insufficient to sustain the jury's verdict, the Double Jeopardy Clause bars a retrial on the same charge. Id., at 18; see Greene v. Massey, 437 U.S. 19, 24 (1978); Hudson v. Louisiana, 450 U.S. 40, 42–43 (1981).
Burks was based on the view that an appellate court's reversal for insufficiency of the evidence is in effect a determination that the government's case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the case to the jury. Burks, 437 U.S., at 16–17. 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. Id., at 10–11, 16. The fact that the determination of entitlement to a judgment of acquittal is made by the appellate court rather than the trial court should not, we thought, affect its double jeopardy consequences; to hold otherwise "would create a purely arbitrary distinction" between defendants based on the hierarchical level at which the determination was made. Id., at 11.
[p402] The question presented by this case—whether the Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant's conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction—was expressly reserved in Greene v. Massey, supra, at 26, n. 9, decided the same day as Burks. We think the logic of Burks requires that the question be answered in the affirmative.
Burks was careful to point out that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary "trial errors" as the "incorrect receipt or rejection of evidence." 437 U.S., at 14–16. While the former is in effect a finding "that the government has failed to prove its case" against the defendant, the latter "implies nothing with respect to the guilt or innocence of the defendant," but is simply "a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect." Id., at 15 (emphasis added).
It appears to us to be beyond dispute that this is a situation described in Burks as reversal for "trial error"—the trial court erred in admitting a particular piece of evidence, and without it there was insufficient evidence to support a judgment of conviction. But clearly with that evidence, there was enough to support the sentence: the court and jury had before them certified copies of four prior felony convictions, and that is sufficient to support a verdict of enhancement under the statute. See Ark. Stat. Ann. § 41-1003 (1977) (current version at Ark. Code Ann. § 5-4-504 (1987)). The fact that one of the convictions had been later pardoned by the Governor vitiated its legal effect, but it did not deprive the certified copy of that conviction of its probative value under the statute. It is quite clear from our opinion in [p41] Burks that a reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clause—indeed, that was the ratio decidendi of Burks, see 437 U.S., at 16–17—and the overwhelming majority of appellate courts considering the question have agreed. The basis for the Burks exception to the general rule is that a reversal for insufficiency of the evidence should be treated no differently than a trial court's granting a judgment of acquittal at the close of all the evidence. A trial court in passing on such a [p42] motion considers all of the evidence it has admitted, and to make the analogy complete it must be this same quantum of evidence which is considered by the reviewing court.
Permitting retrial in this instance is not the sort of governmental oppression at which the Double Jeopardy Clause is aimed; rather, it serves the interest of the defendant by affording him an opportunity to "obtai[n] a fair readjudication of his guilt free from error." Burks, supra, at 15; see Tibbs v. Florida, 457 U.S. 31, 40 (1982); United States v. DiFrancesco, 449 U.S. 117, 131 (1980); United States v. Scott, 437 U.S. 82, 91 (1978). Had the defendant offered evidence at the sentencing hearing to prove that the conviction had become a nullity by reason of the pardon, the trial judge would presumably have allowed the prosecutor an opportunity to offer evidence of another prior conviction to support the habitual offender charge. Our holding today thus merely recreates the situation that would have been obtained if the trial court had excluded the evidence of the conviction because of the showing of a pardon. Cf. our discussion in Burks, supra, at 6–7.
The judgment of the Court of Appeals is accordingly
Reversed.

## Notes

1. ↑ Ark. Stat. Ann. § 41-1003 (1977) provided as follows:
". . . A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was convicted or found guilty. The following are sufficient to support a finding of a prior conviction or finding of guilt:
"(1) a duly certified copy of the record of a previous conviction or finding of guilt by a court of record; or
"(2) a certificate of the warden or other chief officer of a penal institution of this state or of another jurisdiction, containing the name and fingerprints of the defendant, as they appear in the records of his office; or
"(3) a certificate of the chief custodian of the records of the United States Department of Justice, containing the name and fingerprints of the defendant as they appear in the records of his office."
2. ↑ There is no indication that the prosecutor knew of the pardon and was attempting to deceive the court. We therefore have no occasion to consider what the result would be if the case were otherwise. Cf. Oregon v. Kennedy, 456 U.S. 667 (1982).
3. ↑ Prior to 1981, the Arkansas statute assigned responsibility for determining whether the State had proved the requisite number of prior convictions to the jury. Ark. Stat. Ann. § 41-1005 (1977). In 1981, the Arkansas General Assembly amended the statute to reassign this responsibility to the trial court. 1981 Ark. Gen. Acts 252 (Feb. 27, 1981) (codified at Ark. Stat. Ann. § 41-1005 (Supp. 1985) (current version at Ark. Code Ann. § 5-4-502 (1987))). Though respondent's trial took place after the 1981 amendments became effective, the trial court, evidently unaware of the amendments, permitted the jury to make the factual finding as to the number of prior convictions proved by the State. No objection was made by either side, and the error has no bearing on the double jeopardy issue before us.
4. ↑ Respondent challenged the use of the pardoned conviction to enhance his sentence on direct appeal. The Arkansas Court of Appeals rejected [p37] this claim because of respondent's failure to make a contemporaneous objection to the use of that conviction. Nelson v. State, No. CA CR 83-150 (May 2, 1984), App. 13. Respondent later petitioned the Arkansas Supreme Court for postconviction relief, which was denied on the ground that respondent's "bare assertion" of a pardon, unsupported by any factual evidence, was an insufficient basis on which to grant relief. Nelson v. State, No. CR 84-133 (Nov. 19, 1984), App. 15.
5. ↑ The District Court made clear, however, that the Double Jeopardy Clause did not prevent the State from resentencing respondent for the class B felony itself, under the sentencing rules applicable in the absence of proof of habitual criminal status. See 641 F. Supp., at 186.
6. ↑ The State has attacked the ruling below on a single ground: that the defect in respondent's first sentence enhancement proceeding does not bar retrial. To reach this question, we would ordinarily have to decide two issues which are its logical antecedents: (1) whether the rule that the Double Jeopardy Clause limits the State's power to subject a defendant to successive [p38] capital sentencing proceedings, see Bullington v. Missouri, 451 U.S. 430 (1981), carries over to noncapital sentencing proceedings, see North Carolina v. Pearce, 395 U.S. 711, 720 (1969); and (2) whether the rule that retrial is prohibited after a conviction is set aside by an appellate court for evidentiary insufficiency, see Burks v. United States, 437 U.S. 1 (1978), is applicable when the determination of evidentiary insufficiency is made instead by a federal habeas court in a collateral attack on a state conviction, see Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984). The courts below answered both questions in the affirmative, and the State has conceded both in its briefs and at oral argument the validity of those rulings. We therefore assume, without deciding, that these two issues present no barrier to reaching the double jeopardy claim raised here.
7. ↑ We are not at all sure that the Court of Appeals was correct to describe the evidence of this conviction as "inadmissible," in view of the Arkansas [p41] statutory provision and the colloquy between court, counsel, and defendant referred to above. Evidence of the disputed conviction was introduced, and it was mistakenly thought by all concerned that the conviction had not been pardoned. Several years later it was discovered that the conviction had in fact been pardoned; the closest analogy would seem to be that of "newly discovered evidence." For purposes of our decision, however, we accept the characterization of the Court of Appeals.
8. ↑ See, e.g., United States v. Gonzalez-Sanchez, 825 F.2d 572, 588, n. 57 (CA1 1987); United States v. Hodges, 770 F.2d 1475, 1477–1478 (CA9 1985); Webster v. Duckworth, 767 F.2d 1206, 1214–1216 (CA7 1985); United States v. Marshall, 762 F.2d 419, 423 (CA5 1985); United States v. Bibbero, 749 F.2d 581, 586, n. 3 (CA9 1984); United States v. Key, 725 F.2d 1123, 1127 (CA7 1984); United States v. Tranowski, 702 F.2d 668, 671 (CA7 1983), cert. denied, 468 U.S. 1217 (1984); United States v. Sarmiento-Perez, 667 F.2d 1239 (CA5), cert. denied, 459 U.S. 834 (1982); United States v. Harmon, 632 F.2d 812 (CA9 1980); United States v. Mandel, 591 F.2d 1347, 1373–1374 (CA4), rev'd on other grounds, 602 F.2d 653 (1979), cert. denied, 445 U.S. 961 (1980); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984); People v. Rios, 163 Cal. App. 3d 852, 870–871, 210 Cal. Rptr. 271, 283–284 (1985); People v. Sisneros, 44 Colo. App. 65, 606 P.2d 1317 (1980); State v. Gray, 200 Conn. 523, 536–540, 512 A.2d 217, 225–226 (1986); Hall v. State, 244 Ga. 86, 93-94, 259 S.E.2d 41, 46–47 (1979); People v. Taylor, 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375 (1979); Morton v. State, 284 Md. 526, 397 A.2d 1385 (1979); Commonwealth v. Mattingly, 722 S.W.2d 288 (Ky. 1986); Commonwealth v. Taylor, 383 Mass. 272, 283–285, 418 N.E.2d 1226, 1233–1234 (1981); State v. Wood, 596 S.W.2d 394 (Mo.), cert. denied, 449 U.S. 876 (1980); Roeder v. State, 688 S.W.2d 856, 859–860 (Tex. Crim. App. 1985); State v. Lamorie, 610 P.2d 342, 346–349 (Utah 1980); State v. Van Isler, 168 W. Va. 185, 283 S.E.2d 836 (1981).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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