Jose Miguel Tomas-Felipe v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 28, 2017
• Docket: 09A02-1703-CR-607
• Status: Published

Opinion

FILED MEMORANDUM DECISION 08/28/2017, 10:06 am CLERK Pursuant to Ind. Appellate Rule 65(D), this Indiana Supreme Court Court of Appeals Memorandum Decision shall not be regarded as and Tax Court precedent or cited before any 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 Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office and Office of the Attorney General Cass County Public Defender Lyubov Gore Logansport, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jose Miguel Tomas-Felipe, August 28, 2017

Appellant-Defendant, Court of Appeals Case No. 09A02-1703-CR-607 v. Appeal from the Cass Superior Court. The Honorable Richard Maughmer, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 09D02-1606-F1-3

Friedlander, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017 Page 1 of 6 [1] Jose Miguel Tomas-Felipe appeals his convictions of attempted murder, a Level 1 2 1 felony, and burglary of a dwelling, a Level 4 felony, claiming the convictions

violate his protections against double jeopardy. We affirm.

[2] On June 18, 2016, Iris Cruz was asleep in her bed in Logansport, Indiana, with

her two-year old child next to her. She was awakened by a pain in her arm.

Cruz looked up and saw a man she did not know standing by her bed, stabbing

her with a sharp object. The man tried to stab or slash her neck, and she

blocked the blows with her hands and arms, causing pain and severe bleeding.

After they struggled for a short time, the man ran out of the house. Cruz

ensured that he had left, checked on her three children, and called 911. Her

hands were cut so badly that she had to try calling 911 three times before

succeeding. As Cruz waited for the police, she noticed a window in her home

was open. It had not been open when she went to sleep.

[3] Officers were dispatched to Cruz’s home. One officer saw a man, later

identified as Tomas-Felipe, running away from the home. Cruz came outside

and yelled for help. The officer stayed with her and secured the home until

medics arrived. Another officer chased Tomas-Felipe and subdued him.

Tomas-Felipe’s clothes and body were spotted with blood. Later, a crime scene

1 Ind. Code §§ 35-42-1-1 (2014), 35-41-5-1 (2014). 2 Ind. Code § 35-43-2-1 (2014).

Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017 Page 2 of 6 technician found a large bloody knife in Cruz’s bed. The officers also found a

fingerprint on the open window.

[4] Doctors treated numerous cuts on Cruz’s hands and arms. She later underwent

surgeries to repair damaged tendons in her fingers. The injuries healed, but

Cruz has recurring nightmares about being attacked and bleeding to death.

[5] The State charged Tomas-Felipe with attempted murder; burglary of a dwelling

resulting in serious bodily injury, a Level 1 felony; and resisting law

enforcement, a Class A misdemeanor. He pleaded guilty as charged without a

plea agreement.

[6] At sentencing, the State asked the court to enter a judgment of conviction for

burglary as a Level 4 felony, “essentially removing the serious bodily injury

element.” Tr. Vol. II, p. 19. The State was concerned the charge of burglary of

a dwelling resulting in serious bodily injury “overlapp[ed] with the attempted

murder” charge. Id. The court agreed with the State that the “language of

serious bodily injury” in the burglary charge was “duplicitous to the allegation”

in the attempted murder charge. Id. at 22. The court entered judgment on the

burglary conviction as a Level 4 felony to “avoid two sentences for the same

crime.” Id. at 21. The court sentenced Tomas-Felipe to forty years for

attempted murder and twelve years for burglary of a dwelling, to be served

consecutively. The court further sentenced Tomas-Felipe to one year for

resisting law enforcement, to be served concurrently with the other sentences.

This appeal followed.

Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017 Page 3 of 6 [7] Before we turn to the merits of Tomas-Felipe’s double jeopardy claim, the State

argues he waived his right to present that claim because he pleaded guilty. In

general, a defendant who pleads guilty per an agreement with the State waives

the right to raise a double jeopardy claim on appeal. Mapp v. State, 770 N.E.2d

332 (Ind. 2001). When a defendant pleads guilty without a plea agreement,

there is no waiver. Kunberger v. State, 46 N.E.3d 966 (Ind. Ct. App. 2015).

[8] Tomas-Felipe pleaded guilty without an agreement and did not receive any

tangible benefit from the State. The State argues that he benefitted because the

court determined his guilty plea was a mitigating factor. The court’s

consideration of Tomas-Felipe’s guilty plea is of no consequence. The key for

purposes of waiver is whether a defendant gained a benefit from the State

through an agreement. See Wharton v. State, 42 N.E.3d 539 (Ind. Ct. App. 2015)

(no waiver of right to raise double jeopardy claim; defendant pleaded guilty

without an agreement). Tomas-Felipe has not waived his right to raise a double

jeopardy claim on appeal.

[9] Tomas-Felipe declines to present a claim under the double jeopardy clauses of

the Constitution of the United States of America or the Constitution of the State

of Indiana. Instead, he bases his double jeopardy claim on “Indiana’s common-

law rules,” arguing his burglary conviction must be vacated because it is based

in part on the same act as the attempted murder conviction. Appellant’s Br. p.

10.

Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017 Page 4 of 6 [10] In Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002), the Indiana Supreme Court

explained, “We have long adhered to a series of rules of statutory construction

and common law that are often described as double jeopardy, but are not

governed by the constitutional test set forth in Richardson [v. State, 717 N.E.2d

32 (Ind. 1999)].” For example, two crimes may not be enhanced by the same

bodily injury. Miller v. State, 790 N.E.2d 437 (Ind. 2003). In Gross v. State, 769

N.E.2d 1136 (Ind. 2002), the Indiana Supreme Court determined a conviction

of robbery resulting in serious bodily injury, a Class A felony, could not stand

because the same act of causing injury was an element of an accompanying

charge of murder. The Supreme Court remanded with instructions to reduce

the robbery conviction to a Class B felony, thereby removing the element of

serious bodily injury from the robbery charge and eliminating the double

jeopardy violation.

[11] In the current case, Tomas-Felipe argues his burglary conviction must be

vacated because the charges of attempted murder and burglary as a Level 1

felony are based on the same act: his stabbing of Cruz, resulting in serious

bodily injury. We reject his argument because the convictions, not the charges,

are the crucial factor for purposes of double jeopardy. Tomas-Felipe fails to

acknowledge that the trial court entered a judgment of conviction for burglary

as a Level 4 felony, not as a Level 1 felony. Burglary as a Level 4 felony does

not include an element of causing injury or serious bodily injury to a person.

See Ind. Code § 35-43-2-1. The trial court implemented the remedy required by

the Indiana Supreme Court in Gross, thus avoiding a violation of Indiana’s

Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017 Page 5 of 6 common law double jeopardy principles. Tomas-Felipe has failed to

demonstrate that he was harmed by being convicted of burglary as a Level 4

felony.

[12] For the reasons stated above, we affirm the judgment of the trial court.

[13] Judgment affirmed.

[14] Mathias, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017 Page 6 of 6