Larry D. Bass v. State of Indiana, 2017 Ind. App. LEXIS 178

On Dec. 10, 2014, Bass was found unconscious in a running vehicle in an intersection; officer observed signs of impairment and a hospital blood draw detected methadone, oxycodone, and zolpidem.
State charged Bass with two OWI counts: Class A misdemeanor (operating while intoxicated and endangering others) and Class C misdemeanor (operating with a schedule I or II controlled substance/metabolite in his body).
At bench trial Bass testified he had prescriptions for the substances and asserted the statutory prescription defense to the Class C count; the trial court rejected that defense and found him guilty of both counts.
At sentencing the trial court’s written order titled "Judgment" acknowledged guilt on both counts but stated the counts “merge for the purpose of sentencing” and did not specify which conviction was entered.
On appeal Bass argued the entry of judgment on both the greater and lesser included OWI offenses violated double jeopardy; the State conceded the double jeopardy problem.
The court reversed and remanded with instructions to vacate the Class C misdemeanor conviction because entering judgment on both counts and then merely merging them is insufficient to cure a double jeopardy violation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether entering judgment on both OWI counts and then stating they "merge" violates double jeopardy	State (plaintiff) effectively conceded error on appeal	Bass argued double jeopardy was violated because the Class C is a lesser-included offense and both convictions were entered	Reversed and remanded: vacate the Class C conviction because a judgment entered on both counts cannot be cured by mere merger for sentencing
Whether sufficiency review of the Class C conviction is ripe	State: did not pursue sufficiency because it conceded double jeopardy error	Bass: also argued insufficiency based on prescription defense	Court declined to reach sufficiency—vacatur on double jeopardy grounds rendered the challenge unripe
Whether the statutory prescription defense requires taking medication in accordance with the prescription (dissenting view)	N/A (majority resolved on double jeopardy)	Bass argued subsection (d) means defendant merely had a valid prescription for the substances consumed	Dissent (would have reached this): reads defense broadly to mean possession of a valid prescription suffices; would have vacated Class C conviction on statutory-construction grounds

Whitham v. State, 49 N.E.3d 162 (Ind. Ct. App.) (entry of conviction for both an offense and its lesser-included offense violates double jeopardy)
Wentz v. State, 766 N.E.2d 351 (Ind.) (double jeopardy principles regarding greater and lesser-included offenses)
Kremer v. State, 643 N.E.2d 357 (Ind. Ct. App.) (holding OWI based on controlled substance and OWI based on endangerment cannot both stand when same facts used)
Kovats v. State, 982 N.E.2d 409 (Ind. Ct. App.) (if trial court enters judgment on multiple convictions, merger alone is insufficient; vacatur required)
West v. State, 22 N.E.3d 872 (Ind. Ct. App.) (applying Kovats: a document captioned "Judgment" noting guilt on both counts then merging was insufficient; remand to vacate lesser count)
Green v. State, 856 N.E.2d 703 (Ind.) (discussion of when vacation of convictions is required following guilty findings)
Gregory v. State, 885 N.E.2d 697 (Ind. Ct. App.) (merger without vacatur does not cure double jeopardy where multiple judgments entered)
Carter v. State, 750 N.E.2d 778 (Ind.) (no requirement to vacate guilty findings not reduced to judgment; explains ripeness of challenges)