Ivan Juhan Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 7, 2017
• Docket: 49A02-1609-CR-2082
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Mar 07 2017, 9:54 am

Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Susan D. Rayl Curtis T. Hill, Jr. Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ivan Jones, March 7, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1609-CR-2082 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Peter Nugent, Appellee-Plaintiff. Judge Pro-Tempore

Trial Court Cause No. 49G06-1510-F6-36148

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017 Page 1 of 5 [1] Ivan Jones appeals his convictions for operating a vehicle while intoxicated

with an ACE of .15 or more with a prior conviction and operating a vehicle

while intoxicated. Jones raises one issue which we restate as whether the

convictions violate double jeopardy principles. We affirm in part, vacate in

part, and remand with instructions.

Facts and Procedural History

[2] On October 12, 2015, Indianapolis Metropolitan Police Officer Tiffany Lamle

responded to a call from Jones who was concerned about his neighbors

harassing him. When she arrived at Jones’s residence, Officer Lamle observed

that Jones smelled of alcohol and had bloodshot eyes, slurred speech, and

almost an unsteady balance, and she believed Jones was intoxicated and told

him not to exit his home and not to drive his moped. Officer Lamle went back

to her vehicle, heard Jones’s moped start a couple of minutes later, and

observed in her rearview mirror Jones drive the moped around his house and

down the street. Officer Lamle turned her vehicle around, traveled in the

direction Jones had been driving, noticed Jones’s moped parked in front of a

liquor store, and parked her vehicle alongside his moped and waited. A couple

of minutes later, Jones exited the store and went to mount his moped, Officer

Lamle observed he was “extremely wobbly while doing so,” and when Jones

turned toward Officer Lamle’s vehicle and saw her, he said “Oh f---.”

Transcript at 28. Officer Lamle transported Jones to Indianapolis Metropolitan

Police Officer Adam Jones for a DUI investigation, and Officer Jones observed

that Jones had glassy, bloodshot eyes and the smell of alcohol on his breath.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017 Page 2 of 5 Jones failed the horizontal gaze nystagmus test and the nine-step walk and turn

test. Jones consented to a certified chemical test, and the result of the test was

0.172 grams of alcohol per 210 liters of breath.

[3] The State charged Jones with Count I, operating a vehicle with an ACE of .15

or more with a prior conviction as a level 6 felony; and Count II, operating a

vehicle while intoxicated with a prior conviction as a level 6 felony. 1 A jury

found Jones guilty of operating a vehicle with an ACE of .15 or more as a class

A misdemeanor in Count I and operating a vehicle while intoxicated as a class

C misdemeanor in Count II. Jones stipulated that he had a prior conviction for

driving a vehicle while intoxicated. The court sentenced Jones to two years for

each of the convictions to be served concurrently. 2

Discussion

[4] The issue is whether Jones’s convictions violate double jeopardy principles.

Jones argues that his convictions violate the double jeopardy clause of the

Indiana Constitution under the actual evidence test, the same set of evidentiary

facts proved the essential elements of both crimes, and therefore one of his

1 The State’s original information charged Count I as a class A misdemeanor and Count II as a class C misdemeanor, and its amended information included an allegation under a second part for each count that the offense was a level 6 felony and alleging that Jones had a prior conviction for operating a vehicle while intoxicated. 2 The court asked Jones if he understood that, “by stipulating to the prior that the enhanced penalty is it would make each of them a level 6 felony,” and Jones responded affirmatively. Transcript at 150. Although the court’s sentencing order shows Jones was sentenced to two years under both Counts I and II, the sentencing order and the chronological case summary appear to indicate that Count II was entered as a class C misdemeanor. Because we vacate Count II, we need not address this discrepancy.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017 Page 3 of 5 convictions must be vacated. The State concedes that Jones’s convictions

violate double jeopardy, notes that both incidents are based on the exact same

incident of operating a vehicle, and states that, to remedy the error, this court

should remand with instructions for the trial court to vacate one of Jones’s

convictions.

[5] Article 1, Section 14 of the Indiana Constitution provides that “[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. Wharton v. State, 42 N.E.3d

539, 541 (Ind. Ct. App. 2015) (citing 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.

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.” Id. (citing Richardson, 717 N.E.2d at 53).

[6] Jones’s convictions violate the actual evidence test. Officer Lamle observed

Jones operate a vehicle after noticing that he appeared intoxicated, Jones failed

the horizontal gaze nystagmus and the nine-step walk and turn tests, and he

agreed to a certified chemical test which revealed he had .172 grams of alcohol

per 210 liters of breath. Both offenses arose from the same actions, on the same

date, and at the same location. Under double jeopardy analysis, Jones cannot

be convicted of and sentenced for both offenses. See Wharton, 42 N.E.3d at 541

(holding that the defendant’s convictions for operating a vehicle while

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017 Page 4 of 5 intoxicated with a prior conviction and operating a vehicle with an ACE of .08

or more with a prior conviction as level 6 felonies violated the actual evidence

test); West v. State, 22 N.E.3d 872, 874-875 (Ind. Ct. App. 2014) (holding that

the defendant’s convictions for operating while intoxicated and operating with a

blood alcohol content of .15 or more as class D felonies constituted a double

jeopardy violation), trans. denied. When two convictions are found to

contravene Indiana double jeopardy principles, one of the convictions must be

vacated, and in the interest of efficient judicial administration, the reviewing

court will make this determination. Wharton, 42 N.E.3d at 541 (citation

omitted). We vacate Jones’s conviction and sentence for operating a vehicle

while intoxicated under Count II. See id. (vacating one of the defendant’s

convictions and remanding to the trial court to amend its order); West, 22

N.E.3d at 875 (remanding with instructions to vacate one of the defendant’s

convictions).

Conclusion

[7] For the foregoing reasons, we affirm Jones’s conviction for operating a vehicle

with an ACE of .15 or more with a prior conviction as a level 6 felony under

Count I, vacate his conviction and sentence for operating a vehicle while

intoxicated under Count II, and remand to the trial court to amend its order.

[8] Affirmed in part, vacated in part, and remanded with instructions.

Vaidik, C.J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017 Page 5 of 5