Jesse Wharton v. State of Indiana
2015 Ind. App. LEXIS 597
Ind. Ct. App.2015Background
- On July 25, 2014, officers stopped Jesse Wharton for a license-plate mismatch; they observed signs of intoxication and administered field sobriety tests and a breath test.
- Wharton failed the HGN test, refused walk-and-turn and one-leg-stand tests, and registered .110 g/210 L on a breath test.
- The State charged multiple counts: misdemeanor OVI, misdemeanor operating with ACE≥.08, and two level-6 felonies—OVI with a prior and ACE≥.08 with a prior.
- Wharton pleaded guilty in open court to the two level-6 felony counts without a plea agreement; the court convicted and sentenced him to concurrent 2.5-year terms.
- On appeal Wharton argued the two felony convictions violated double jeopardy because they were based on the same act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wharton waived a double jeopardy challenge by pleading guilty | State: Wharton waived the challenge by entering a plea (relying on Mapp) | Wharton: No plea agreement was made, so no waiver of double jeopardy claim | Court: No waiver; plea entered without agreement does not bar double jeopardy claim |
| Whether two convictions based on the same conduct violate Indiana double jeopardy | — (State made no merits argument) | Wharton: Convictions arise from same facts (same time/place/act), so they fail the actual-evidence test | Court: Violates actual-evidence test; convictions compound jeopardy |
| Which conviction must be vacated when double jeopardy is found | — | — | Court: Vacated ACE≥.08 with prior conviction; affirmed generic OVI with prior conviction and remanded to amend judgment |
| Standard of review where appellee offers no argument on merits | — | — | Court: Apply prima facie-error review; still independently apply law to record |
Key Cases Cited
- Mapp v. State, 770 N.E.2d 332 (Ind. 2002) (defendant who entered a plea agreement waived double jeopardy challenge)
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (established statutory-elements and actual-evidence tests for multiple convictions)
- Owens v. State, 742 N.E.2d 538 (Ind. Ct. App. 2001) (when double jeopardy violated, one conviction must be vacated; reviewing court may choose which)
- West v. State, 22 N.E.3d 872 (Ind. Ct. App. 2014) (double jeopardy required vacatur of BAC-based conviction when duplicative of OVI)
- McElroy v. State, 864 N.E.2d 392 (Ind. Ct. App. 2007) (guilty plea without plea agreement preserves double jeopardy claim)
- Vandenburgh v. Vandenburgh, 916 N.E.2d 723 (Ind. Ct. App. 2009) (when appellee briefs nothing, apply less stringent prima facie-error review)