Blanton v. State

533 N.E.2d 190, 1989 Ind. App. LEXIS 52, 1989 WL 7137

• Court: Indiana Court of Appeals
• Decided: January 31, 1989
• Docket: 49A02-8712-CR-518
• Status: Published

Opinions

SULLIVAN, Judge.

Reginald Blanton, a/k/a Venita Blanton, appeals his convictions for Prostitution as a Class D felony and for Public Indecency, as a Class A misdemeanor.¹ Because of two prior convictions for prostitution, the act of prostitution was a Class D felony for which Blanton was sentenced for a term of four years. He received a one-year sentence upon the misdemeanor conviction to be served concurrently.

Blanton attacks the Class D felony sentence as excessive claiming that prior sex offenses, regardless of number, should not be permitted to constitute the offense, a Class D felony, and as well to enhance the Class D felony sentence from two to four years. What would otherwise have been a Class A misdemeanor became a Class D felony because Blanton had two prior prostitution convictions.

Enhancement of the two-year presumptive sentence for the Class D felony to a four-year sentence was the result of other aggravating circumstances. He had at least three other prior prostitution convictions in addition to the two used to elevate the offense to a Class D felony. Additionally, he had convictions for offenses ranging from Forgery to Disorderly Conduct, to Fleeing, to No Operator’s License. In sentencing the defendant the trial court also observed that Blanton was likely to commit prostitution again in the future. These factors justify the four-year enhanced sentence. Jones v. State (1983) Ind., 456 N.E. 2d 1025; Gary v. State (1980) 3d Dist.Ind. App., 400 N.E.2d 215.

Notwithstanding our rejection of Blanton’s argument concerning sentence enhancement, we are compelled to note that the conviction for the public indecency offense must be set aside.

The only act which could arguably constitute Public Indecency was the very act of fellatio which was the basis of the prostitution charge. To be sure, the public indecency charge was couched in terms of “FELLATIO fondle the genitals....” Record at 4. Nevertheless the same allegation of fellatio constitutes the gravamen of each charge and there was no evidence of fondling other than of the act of fellatio itself. It was improper to sentence upon both convictions. Ellis v. State (1988) Ind., 528 N.E.2d 60.

In this regard it is necessary to observe that the Blockburger test, relied upon by Judge Buchanan’s dissent, is not the sole criterion by which to assess multiple punishment — double jeopardy considerations in cases such as this. Ellis v. State, supra; Hall v. State (1986) Ind., 493 N.E.2d 433.

We reverse the conviction for Public Indecency and order that it be set aside. We affirm the conviction and the sentence imposed upon the Class D felony.

ROBERTSON, J., concurs. BUCHANAN, J., dissents with separate opinion.

1 . Indiana Code 35-45-4-2 (Burns Code Ed.RepI. 1985) provides as follows:

"A person who knowingly or intentionally:

(1) Performs, or offers or agrees to perform, sexual intercourse or deviate sexual conduct; or

(2) Fondles, or offers or agrees to fondle, the genitals of another person;

for money or other property commits prostitution, a class A misdemeanor. However, the offense is a class D felony if the person has two [2] prior convictions under this section.” Indiana Code 35-45-4-l(a) (Burns Code Ed.

Repl.1985) provides in pertinent part:

"A person who knowingly or intentionally, in a public place:

(2) Engages in deviate sexual conduct; ******

(4) Fondles the genitals of himself or another person;

commits public indecency, a' class A misdemeanor.”

The prostitution charge against Blanton was as follows:

‘‘[Blanton] did unlawfully and knowingly perform with RICHARD A. JOHNSON an act of Deviate Sexual Conduct, to-wit: FELLATIO for property, to-wit: $15.00 FIFTEEN DOLLARS in United States Currency....” Record at 4.

The public indecency count charged that:

"[Blanton] did unlawfully and knowingly, in a public place, to-wit: 1500 NORTH CARROL-TON engage in Deviate Sexual Conduct, to-wit: FELLATIO fondle the genitals of RICHARD A. JOHNSON....” Record at 4.