Jesse Wharton v. State of Indiana , 42 N.E.3d 539 ( 2015 )

Aug 26 2015, 9:52 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie Boots Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesse Wharton, August 26, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1502-CR-85
v. Appeal from the Marion County
Superior Court;
The Honorable Annie Christ-Garcia,
State of Indiana, Judge;
Appellee-Plaintiff. 49G24-1407-F6-36995
May, Judge.
Court of Appeals of Indiana | Opinion 49A02-1502-CR-85 | August 26, 2015 Page 1 of 5
[1] Jesse Wharton appeals his convictions of level 6 felony operating a vehicle
while intoxicated with a prior conviction 1 and level 6 felony operating a vehicle
with an alcohol concentration equivalent (ACE) of .08 or more with a prior
conviction. 2 Wharton asserts his convictions subjected him to double jeopardy
because the same act was the basis for both offenses.
[2] We affirm in part, vacate in part, and remand with instructions.
Facts and Procedural History
[3] On July 25, 2014, police stopped the car Wharton was driving because the
license plate was registered to a different car. As he approached the driver, the
officer noted Wharton “had an odor of an alcohol beverage on his breath, his
speech was slurred, his eyes were red and watery, he had pure [sic] manual
dexterity.” (Tr. at 10.) Wharton subsequently failed the Horizontal Gaze
Nystagmus test, “refused the walk and turn and one leg stand,” (id.), and tested
.110 grams of alcohol per 210 liters of his breath.
[4] The State charged Wharton with class A misdemeanor operating a vehicle
while intoxicated, 3 class C misdemeanor operating a vehicle with an ACE of
.08 or more, 4 level 6 felony operating a vehicle while intoxicated with a prior
1
Ind. Code § 9-30-5-2(a) (2001); Ind. Code § 9-30-5-3(a)(1) (2014).
2
Ind. Code § 9-30-5-1(a) (2001); Ind. Code § 9-30-5-3(a)(1) (2014).
3
Ind. Code § 9-30-5-2(a) (2001).
4
Ind. Code § 9-30-5-1(a) (2001).
Court of Appeals of Indiana | Opinion 49A02-1502-CR-85 | August 26, 2015 Page 2 of 5
conviction, and level 6 felony operating a vehicle with an ACE of .08 or more
with a prior conviction. Wharton pleaded guilty in open court to the felony
charges, without benefit of a plea agreement. He confirmed the State’s version
of the facts and agreed he had prior convictions of operating a vehicle while
intoxicated. The court entered convictions on the two felonies and sentenced
Wharton to two and a half years for each count, to be served concurrently.
Discussion and Decision
[5] Wharton was subjected to double jeopardy by the imposition of two sentences
because the same act was the basis for both offenses. We must therefore vacate
his conviction of operating a vehicle with an ACE of .08 or more with a prior
conviction.
[6] The State’s only argument is that Wharton waived his right to challenge his
convictions because he entered into a “plea agreement.” (Br. of Appellee at 3.)
In support, the State cites Mapp v. State, which held “Mapp waived his right to
challenge his convictions on double jeopardy grounds when he entered his plea
agreement.” 770 N.E.2d 332, 334 (Ind. 2002). However, in this case Wharton
did not have a “plea agreement.” Wharton pleaded guilty in open court
without an agreement that might have brought him some benefit in return. In
that circumstance, there is no waiver. See McElroy v. State, 864 N.E.2d 392, 396
(Ind. Ct. App. 2007) (when guilty plea was entered without the benefit of a plea
agreement, defendant “may raise a double jeopardy argument”).
Court of Appeals of Indiana | Opinion 49A02-1502-CR-85 | August 26, 2015 Page 3 of 5
[7] As the State presents no argument as to the merits of Wharton’s double
jeopardy argument, we will treat this issue as one where no appellee’s brief was
filed. In such cases, we need not develop an argument for the appellee and we
apply a less stringent standard of review. Vandenburgh v. Vandenburgh, 916
N.E.2d 723, 725 (Ind. Ct. App. 2009). We may reverse if the appellant is able
to establish prima facie error, which is error at first sight, on first appearance, or
on the face of it. Id. The appellee’s failure to provide argument does not relieve
us of our obligation to correctly apply the law to the facts in the record in order
to determine whether reversal is required. Id.[8] Art. 1, sec. 14 of the Indiana Constitution states, in relevant part, “[n]o person
shall be put in jeopardy twice for the same offense.” “Indiana’s Double
Jeopardy Clause was intended to prevent the State from being able to proceed
against a person twice for the same criminal transgression.” Richardson v. State,
717 N.E.2d 32, 49 (Ind. 1999). A two-part test was developed for determining
if multiple convictions are permissible -- the statutory elements test and the
actual evidence test. Id.[9] Wharton’s convictions violate the actual evidence test. Under the actual
evidence test, the “actual evidence presented at trial is examined to determine
whether each challenged offense was established by separate and distinct facts.”
Richardson, 717 N.E.2d at 53. Police saw Wharton operating a vehicle while he
was intoxicated. Wharton agreed to a chemical test that revealed he had .110
grams of alcohol per 210 liters of his breath. As such, both offenses arose from
the same actions, on the “same date, [at] the same location.” (Tr. at 10) (State’s
Court of Appeals of Indiana | Opinion 49A02-1502-CR-85 | August 26, 2015 Page 4 of 5
recitation in open court of the facts).) Under double jeopardy analysis,
Wharton cannot be convicted of and sentenced for both offenses. See West v.
State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014) (double jeopardy violation from
conviction of operating while intoxicated and operating with a blood alcohol
content of .15 or more remanded for trial court to vacate the latter conviction),
trans. denied.
[10] The trial court should have entered only one of the convictions. “When two
convictions are found to contravene Indiana double jeopardy principles, . . . one
of the convictions must be vacated.” Owens v. State, 742 N.E.2d 538, 544-45
(Ind. Ct. App. 2001) (internal citation omitted), trans. denied. “In the interest of
efficient judicial administration, . . . the reviewing court will make this
determination[.]” Id. at 545. Therefore, we vacate Wharton’s conviction of
level 6 operating a vehicle with an ACE of .08 or more with a prior conviction.
Conclusion
[11] Wharton’s protection from double jeopardy was violated by two convictions
based on the same act. Therefore, we affirm his conviction and sentence for
operating a vehicle while intoxicated, we vacate the conviction of and sentence
for operating a vehicle with an ACE of .08 or more with a prior conviction, and
we remand to the trial court to amend its order.
[12] Affirmed in part, vacated in part, and remanded with instructions.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 49A02-1502-CR-85 | August 26, 2015 Page 5 of 5