*1 court is application no to the case at bar. trial affirmed. Judgment affirmed. P.J., Lybrook,
Lowdermilk J. and
concur.
Reported at
Note — Johnny Montgomery Lamb, Elmore, Lee Andrea Jimmie State of Indiana 1, 1978. May Rehearing denied 2-876A306.Filed June 1978.] [No. *2 Sherman, for Bagni, Giddings N. & Indianapolis, Bagni, Bruce appellants. Steiner, Sendak, Indiana, David L. L. Attorney
Theodore General of General, Attorney appellee. for Deputy Elmore, Lamb, were tried the court and Montgomery and WHITE, J. (Count I) $100.00 of Theft of valued over and Con- property convicted II). (Count and sentenced $100.00 to Theft Each was fined spiracy Commit years years two to fourteen to one to ten for the theft and imprisonment court’s failure they as error: conspiracy. appeal assign for the On (2) insufficiency of the evidence to bargain their approve plea assign- in either their convictions. We find no cause for reversal sustain ment, merged is sponte but sua the lesser offense of theft we hold that cause remand the offense of and therefore greater conspriacy into of vacation of the theft sentence.
I. at and the prosecutor When the for the deputy case was called trial torneys for the informed the court that all defendants defendants whereby would the State entered into the defendants plea bargain had II, I, theft, would dismiss Count guilty to Count and the State plead be and Lamb Montgomery and would recommend that conspiracy, sentencing no under the Minor’s Statute.1 There was to be sentenced (Burns 1975): Ed., Ann. Stat. 35-8-3-1 Code “Whenever person under the full age of twenty-one [21] years who has not minor. No one mentioned Elmore who was not a recommendation (i.e., agreement prosecutor’s bargain part whether the State’s the Minor’s sentencing under II and to recommend to dismiss Count Statute) by Ind. Ann. Stat. writing as required been reduced §§ had (Burns 35-5-6-2(a) 35-5-6-l(b) Ed., nor there Supp.) must therefore that it written. We to indicate was record anything wholly oral. assume that his by which confirmed of counsel he asking questions
After asked the three plea bargain, of the terms court understanding they Lamb charge. whether understood theft defendants under oath he not. they judge did but Elmore said did Montgomery said him there explain it to and then announced that attempt made brief way no he do so and “that under the circumstances we better could togo trial.” anyone, began. without further comment from the trial
Whereupon, counts, guilty It in a that all defendants were on both finding ended they statutorily greater authorized than for which received sentences plea bargain approved. have received had their been would theretofore been convicted in its vided, punishment for diana Woman’s Woman’s fense a term of not less than discretion, punishable That Prison, nothing for which is Prison, such may by herein contained shall life person sentence said for imprisonment imprisonment any one of a may determinate [1] *3 felony be sentenced to year person shall have been in the nor or death.” to the Indiana State apply more than period Indiana said to not any person reformatory Reformatory ten exceeding convicted [10] years, Farm, convicted of or woman’s one of or the any [1] or the or year: crime the to the Indiana prison court, an of- Pro- In- part: provides pertinent in 35-5-6-1 Section chapter: “As used in “(b) (1) by proposal prosecutor a court a ‘Recommendation’ means the to a that: (2) dismissed, defendant, charge pleads guilty charge, to less a if he a receive prescribed by
than law.” the maximum sentence provides pertinent part: Section in 35-5-6-2 “(a) may by felony prosecutor the on No be made to a court a recommendation (1) charge plea guilty. except writing, in and the a of before defendant enters filed, and, the recommendation shall be shown as if its contents indicate that guilty prosecutor anticipates plea a that the defendant intends to enter a felony by charge, presentence report required the the court shall order IC may the 35-4.1-4-9and hear evidence on recommendation.” defendants,
Although this is taken in the appeal names all three respect error with to the aborted plea bargain is claimed on behalf of only They two: Lamb and Montgomery. contend that the court erred in their rejecting guilty solely on the pleas ground that Elmore apparently misunderstood the nature of the theft case, They Harshman v. State charge. cite but one they say which holds that defendant has the “[a] prerogative voluntarily and intelligently any plead guilty criminal case”. What that actually case holds is that: “Under our an practice may accused enter a plea guilty
case, thereby and waive his constitutional right by jury. to trial accused, But to be valid binding and upon such a must be plea by made the accused intelligently, advisedly and understanding- ly, with full of his knowledge rights, and with the ap- considered (232 proval of the judge before whom he charged.” stands Ind. at 620.) substance, In the appellants concede by as much Ind. Ann. quoting Stat. (Burns, 1975), 35-4.1-1-3 which provides that a court shall accept § a guilty plea from a defendant without first determining he understands the nature of charge him informing what he is ad- mitting, receive, what rights he is waiving, may what sentence he that the court is not by any bound agreement he have with the prosecutor.3 But without citing authority, appellants also contend that once the court so informs an accused and is satisfied with his responses, he should accept They the plea. further contend that the judge should Chapter arraignment provide procedures 3. Other sections 35-4.1-1-1 also plea providing guilty pleas. ex- as well as for withdrawal of None of those statutes guilty pressly requires accept plea. 35-4.1-1-3 the court to It is also to be noted statute, 35-5-6, plea chapter quoted bargaining while in note was enacted 2, by any provisions repeals implication earlier statute became effective 1975 and latter, e.g., plea bargain with the if recommendation has been which are inconsistent by writing put accepted pursuant bound into court 35-5-6-2 “it shall be 35-4.1-l-3(e) pursuant “that its terms” and thus it should not inform the defendant to § accepts guilty plea agreement with the if it the court is not bound defendant’s however, Obviously, together prosecutor.” pertinent and in- all statutes must be read *4 35-5-6-2(b) consistently terpreted the court’s with case law. Thus does not mean accept acceptance prosecutor’s defendant’s written recommendations binds him to satisfy guilty plea. the defen- The court must still himself that there is a factual basis for voluntarily plead freely, knowingly, guilty offered and dant’s offer to and that it is proceeding which is made to be recorded and must cause at that determination pursuant transcribed to Criminal Rule Elmore, charge failing explain effort to greater have made that, after com- Montgomery’s pleas Lamb accepted should have contending with them. In effect are his dialogue pleting their a effort to effectuate duty to make reasonable trial court had he failed to do so. and that plea bargain oral have, mention or to argument Whatever merits their fails to statutes, requirements plea bargaining reckon with the Indiana’s (Burns 35-5-6-1,2 Ann. Stat. & 3 which became effective Supp.), §§ July bargain rejected. months before was appellants’ plea Gross State 35-5-6-2 has been in but two cases: interpreted v. State Henry 338 N.E.2d Ind.App. Gross because apply 972. In the statute did App. guilty defendant’s before it effective. plea accepted became However, a Gross footnote observes that the statute “now requires trial court to advise the defendant if he will accept prosecutor’s to the sentencing prior acceptance recommendation of the guilty plea.” Judge opined: “Hopefully, Staton further strict adherence to the re 1971, 35-5-6-2 by considerably will quirements IC trial courts reduce the number of conviction relief post petitions and appeals asserting to withdrawal of right petitioner’s guilty plea because of promises regar hand, Henry, sentencing.” In on the other ding offered her appellant guilty plea after the statute became effective. The offer was prompted by the to recommend prosecutor’s promise sentencing under the Minor’s Statute, but he filed no written recommendation. The court accepted the plea but did not follow the recommendation. The defendant brought Staton, post-conviction to set the aside. proceeding plea Judge speak for the ing majority, said: agree
“We with the State’s contention that the trial court was not bound to follow the outlined in 35-5-6-2 because no procedure written recommendation from the was ever filed with prosecutor filed, it. As no written recommendation was either before or after Henry her there guilty plea, nothing entered the court However, Henry’s to act because was induced an upon. plea alleged recommendation from the that she be sentenced prosecutor Act, to the Minor’s she should have been ad- pursuant Sentencing such recommendation was before the court and could vised that no (370 entry not be received the court after of her plea.” 975.) at *5 been having as set aside therefore ordered Henry’s guilty plea her that to tell had failed court the trial involuntarily made because made no recommendation. had the prosecutor now before the case Gross, supra, unlike Henry, supra, both Since which had been pleas us, guilty plea bargained concerned now before the question answers expressly neither accepted, statute, has Whether, court a trial bargain the plea under us: an unwritten effectuating in or to assist duty to consider pro unwritten prosecutor’s tell us that a Henry But does bargain. plea agree in full we are that proposition at all. With is no posal proposal 35-5-6-2(a)(“No be made may recommendation of language ment. The .”) . . . writing permits in . . . except to a court by the prosecutor interpretation. no other his in- abandoning reason for judge’s have been the
Whatever anticipa- in begun apparent of the which he had terrogation appellants, gives that abandonment guilty pleas, tion of their accepting attorneys, They, their through them no cause for complaint. him with an unwrit the prosecutor presenting had assisted duty. He paid him no nullity imposed upon a which plea bargain, ten however, that had suggesting, We are not it more heed than it merited. statute, by the as writing, required been plea bargain presented consideration from the been entitled to serious it would have presented guilty plea properly We believe a tendered judge. trial by reason entitled to serious consideration bargain of a valid part plea in public’s and the interest in fair treatment of both the defendant’s say, Which is not to of criminal cases. expeditious disposition terest course, judicial the conservation of of trials and avoidance deciding whether the court’s consideration paramount time should be would almost approach Such a plea bargain. simplistic to approve report automatically presentence result in With the aid of approval. 35-5-6-2(a) the court shall have contemplates which and the evidence guilty accept bargained whether prior determining before it certainly whether the recommended the court must consider plea, offense, the defen gravity is commensurate with the sentence availability of clear and and the culpability apparent dant’s degree (1974), 262 Ind. Ballard evidence of his convincing guilt. or to approve the decision is to 810. But whether cause”. United good the decision should be “for disapprove bargain, (CA 5, 1973), 15, 20-21, v. Martinez States F.2d and the federal it cites. authorities
II. of the contention that the evidence is insufficient to sus- Disposition requires tain the conviction a detailed review the evidence. The State’s (1) testimony Starkey evidence consists of of a Mr. who identified removed, exhibit one as a CB radio which had been without his consent, automobile; from his knowledge parked testimony Bowman, 12,1976, February officer who on police witnessed what *6 by he believed was an the three defendants attempt to sell two radios CB Drive, to the operator filling of a station at 38th Street and Sherman testimony Indianapolis; and officer Shorter police who follow- ed the three defendants from the station to another service station at Avenue, Keystone 34th Street and Indianapolis, where he their stopped in two cars which the three were riding, arrested the three and recovered (Lamb
Starkey’s from by radio the car driven Elmore. Montgomery and were in Lamb’s Oldsmobile which had either or preceded followed second). Elmore’s from the first Cadillac station to the solely defendants’ evidence consisted testimony. their own Lamb and Elmore testified that on the of their morning arrest Lamb having was trouble his Oldsmobile. starting they When got started Lamb drove it to the station 38th at and Sherman to have it fixed. Elmore followed in his Cadillac. The mechanic at the station told Lamb he need- ed a new starter so Elmore drove Lamb in Elmore’s Cadillac to a parts buy store to one. Lamb went into the store while stayed Elmore in his . while, Cadillac. After a Elmore started to into go the store. A man stop- him ped outside and offered to sell him two CB radios. Elmore brought $30.00. them both for One came from the glove CB compartment of what Elmore assumed was the seller’s car and the other from underneath dash, “they which made Elmore think wasn’t stolen because it was up hooked in his car.” Elmore them put on the floor in the back seat of his and told Lamb about way Cadillac them on their back to the sta- they tion but before stopped they at Lamb’s mother’s house pick- where up Montgomery. ed Montgomery testified he went with them just for the ride and that he saw the radios on the floor while he riding station, them seat to the but he had no conversation about the back Lamb, were All they never knew stolen. three either Elmore or and anyone having any conversation with at station about denied any them show- hearing denied conversation about and denied radios and anyone seeing anyone at them. Lamb admitted looking them to ing and Elmore Montgomery one of the officers at the station. seeing police not asked if did. prima by The facts admitted the defendants are insufficient to prove, facie, actually Starkey’s three Elmore’s stole radio. testimony against receiving was sufficient to make a case him stolen (Burns 35-17-5-3(l)(f) (2)(a) by as Ind. Ann. defined Stat. and property § 1975). v. (1972), Green State Ed., And as we read 258 Ind. Code v. 357, Coates State 282 N.E.2d in relation to and Lawrence v. prima him, testimony is also proof, general Elmore’s as facie control, unauthorized as theft is defin charge obtaining exerting (Burns 35-17-5-3(l)(a) (2)(a) Ann. generally ed Stat. § Ed., 1975), and I. charged Count State, supra, Green
In defendant was charged general theft 35-17-5-3(1)(a) (2)(a) of Ind. Ann. Stat. language having obtain ed and exerted unauthorized control over of her property employer. The evidence she obtained control rais check, ing the amount her which is payroll decep theft 35-17-5-3(1)(b) (2)(a). tion under In there was holding no fatal variance *7 Green the opinion said:
“The first part of statute in does not limit the means question4 by or method which unauthorized control be obtained .... In opinion, attorney our has the prosecuting option of deter- mining whether or not he to charge desires make the under specific statute, some specified section or to make the charge general in nature when the evidence is not certain as to methods used gain control .... 35-17-5-3(l)(a)and Stat. question” § is Ind. Ann. part in of the statute “The first (1) 1975) know- (2)(a)(Burns Ed., theft when he person “A commits which reads: . . (a) . owner property over unauthorized control exerts ingly: obtains or (a) property use or benefit deprive the owner of the . . . intends to case is laid. charge in this theft part that the of the statute It is under 314 “We do not have here charge a narrow which the verdict was the case of Lawrence v. State
too broad as
Ind.
secuting broader provision such as the one in this case which covers ‘unauthorized control of the ” (282 550.) property of the owner.’ N.E.2d at Applying reasoning, we find the testimony combined of Elmore Elmore, and Lamb sufficient prima make a case against a case facie of theft receiving stolen But property. the combined testimony of the three is insufficient to make a case of theft against Montgomery and probably insufficient as to Lamb. It is therefore necessary to ex- amine in greater detail the police officers’ testimony relative to Lamb and Montgomery’s connection with the case.
Sergeant Bowman testified that during the time he was in the sta- tion at 38th and Sherman he saw the three defendants and Mr. Dale (described station”) as “an owner of the having a conversation and work- Oldsmobile, on the ing front of an only car in the station when Bowman entered. The four then went to a black Cadillac which pulled had Elmore, bay then, into the on the north side. “Mr. went to the door of side, the Cadillac on the passenger along Mr. Lamb and Mr. Mont- gomery They and Dale. opened the passenger door. Mr. Elmore got the car and Mr. Dale in. stepped The other two stood on the side of the car, in, looking were looking at in the something back seat of the car.” The four went back to the Oldsmobile. Sgt. Bowman then look- ed into the Cadillac and saw two CB radios on the floor behind the coujd two, driver’s seat. He identify Starkey’s CB as either of the *8 dur- taking place like conversation it. He said “there was but one looked station, to sell I Mr. Elmore offer time in the and heard most of the ing walked to the Dale they ... and then went back Oldsmobile.” the radios Bowman, went back then of the station and conversed to the front station through get Elmore “if he could rid CBs and asked there, at away.” objection An they if from somewhere farther came objection was hearsay” and a further was sustained “as point words, because, not been “The delicti has corpus in the court’s sustained established”. called. Shorter then excused and Shorter was Sgt. Bowman was
Sgt. but was in the at 38th and Sherman testified that he was not station into the station and go outside in the van. He saw the defendants police “we” followed them in the and the He said come out Cadillac Oldsmobile. finally caught on Sherman Drive and West on 34th Street and south Keystone. He then them at 34th and iden- up stopped them (which Starkey his stolen tified state’s exhibit one had identified as CB radio) of the black as the radio he had taken from the back seat CB Keystone he had from 38th and Sherman to 34th and followed Cadillac 12,1976. February and neither operating on Elmore was Cadillac or Lamb was in it. Montgomery in the was then recalled to the stand. He testified that
Sgt. Bowman defendants, Dale, Mr. an in the of the three presence conversation Sherman, he heard Elmore unidentified man at the station at 38th and station because say through “it would be all to sell those right CBs say they He heard Lamb could they came from the center town”. say many Montgomery the man could sell5 and heard deliver as CBs as they they pay when returned and sold the would “that CBs Oldsmobile6, bill, twenty dollar with the repair receipt bill on his sell the offering from the sale.” He CBs thought CB each, any. thirty purchase dollars but Dale did not all the admitted he did not hear Sgt. On cross-examination Bowman office bay he walked from the area into the area conversation because Montgomery with Lamb nod- this statement he attributed time 5. At another ding confirmation. belonged to Lamb. the Oldsmobile is that evidence All the other (There the pur- was no mention of three times”. to use the “about phone times in the office he convers- he used the Several phone.) of which pose *9 Dale, owner, to ask the defen- suggesting questions the station ed with eventually witness it was why Dale was not a and dant. He was asked his station if he damage fear of to expressed that Dale had developed developed argument into testified. Some of the cross-examination which led or of the State’s case strength Bowman as to the weakness selling were knowingly his his that defendants expressing opinion to to be and stopped “or I wouldn’t have instructed them a stolen radio arrested.” terms,
Reduced to its simplest against the case the three defendants Starkey’s is this: February radio was stolen from his automobile on February or 12. 12 it On was recovered from Elmore’s black Cadillac which was his at the time. His possession explanation bought is that he it ridiculously and another radio from a for the stranger CB low price thirty of dollars and that one of the radios had a bent bracket. His posses- recently sion of this stolen explanation radio and his thereof are suffi- cient to sustain the trial court’s inference he gulity that of exerting unauthorized control over it with intent to deprive Starkey of its use and benefit. But whether the trial court justified finding (constructive actual) Lamb and Montgomery were also or possession of the radio readily is not as Elmore apparent. admitted his possession and sought by story which explain judge obviously did not believe, at least not insofar as Elmore professed believe that the radio was not stolen. The radio was also in Elmore’s automobile at a time when Elmore was the car’s occupant. driver and sole Indicia exertion of and, by control or Montgomery Lamb are not so plentiful on the face testimony, a cold transcript considerably trial are less convinc- ing. But at the level it is appellate right duty not our to determine accuracy Sergeant Bowman’s perception of the conversation he station, overheard in the admittedly only service in part and often out of sight of the speaker.
We must therefore assume that the judge beyond trial was convinced by a reasonable doubt testimony Bowman’s that Lamb and Montgomery actively aiding abetting and Elmore in his to sell attempt the radios to Dale at a price and under circumstances which justifiably Bowman believed implied knew the radios were exertion ongoing of Elmore’s aiding abetting This stolen. and Lamb Starkey’s Montgomery radio made control over unauthorized control and to that unauthorized continuing before the fact accessories Ind. Ann. Stat. to conviction under subject each of them thus made 1975) (Burns Ed., man “in the same for the crime of theft 35-1-29-1 sufficient evidence was And that same principal”. if he were a ner as other and with each uniting combining them of to convict them, Elmore, committing purpose Elmore with felony to commit a conspiracy them of felony, say, which is to to convict 35-1-111-1.7 Robertson Ann. Stat. proscribed as defined 368, 370, 108 711, 712; v. State Diggs 1176, 1179. III. for rever assigned appellants ground neither error
Although sal, with instructions this cause must nevertheless be remanded to avoid double modify judgment
trial court to its order *10 of the evidence As our detailed recital punishment. (i.e., demonstrates, control the exertion of unauthorized I) were, and the to commit the theft charged conspiracy theft Count discloses, Thus, while continuous event. so far as the evidence the same offense of the other in neither of these two crimes is a lesser included first the sense that it was to have committed one without impossible other, truly it is either committed the and therefore doubtful that having reason, into the other as to for that conviction and merged preclude, so crimes, those there nevertheless is a but separate sentence both of in this in precludes punishment imposed related rule which the double (1977), 440, 1233, stance. Candler v. State 266 Ind. 363 N.E.2d 1243: “ may the court enter sentence judgment impose upon ‘[Before counts, the facts rise to the various offenses must multiple giving Thompson independently supportable, separate be and distinct.’ persons tion or son or within [$25.00] not less 7. persons who shall or without this combination of “Any nor more than for the than two person purpose [2] or years state, shall, five thousand dollars persons, persons who shall unite or combine with knowingly committing nor more whose on unite with conviction, than object felony, fourteen [14] [$5,000], is the commission of be fined not less within or without other person imprisoned in years. or than persons, any twenty-five felony state, other the state body, or person felonies, any associa- dollars prison per- or v. State (1976), (1972), [265] 259 Ind. [302], 354 587, [592], N.E.2d 290 N.E.2d 164, 170.” 724, 727; Hudson v. Since banditry neither theft nor automobile truly is a lesser included (inasmuch offense in burglary as it is possible commit burglary without crimes8), having first committed either of those apparently upon (1977), the above quoted separate-but-related rule that Sansom v. State 33, 366 1171, 1172, 267 Ind. N.E.2d held those crimes “merged into the burglary, as the offense for which greatest penalty provid ed.” Because of Sansom remanded the cause to the trial merger court for vacation of the theft and automobile banditry sentences.9
Therefore, we .affirm the judgment and sentence for the conspiracy but remand the cause to the trial court for vacation of the judgment upon theft count.
Lowdermilk, J., participating by designation, concurs. Buchanan, C.J., dissents in part and concurs in part, opinion.
DISSENTING IN PART AND IN CONCURRING PART cases, Buchanan, (1977), J. Recent such as Sansom v. State C. 267 Ind. 33, 1171; (1977), 366 N.E.2d Candler v. State 266 Ind. “ offense, necessarily greater 8. ‘... to be included in the the lesser offense must impossible greater,
be such that it is
lesser____’
having
to commit the
without first
committed the
”
(1972),
1, 14, 284
783, 791,quoting
Hitch v. State
259Ind.
Bryant
N.E.2d
from
(1933),
372, 378,
(1917),
quoting
v. State
Ind.
when
186 N.E.
from House v. State
593,595-596, 117
647, 648.
burglary
N.E.
complete
Furthermore the
in Sansom
therein,
entry
felony
regardless
was made with intent to commit a
of whether or
committed,
felony
not the intended
was ever
Lisenko v. State
842-843.
48, 52, 147
implication Tungate
Sansom thus overrules
v. State
238Ind.
“
N.E.2d
with intent to
breaking
which held:
*... a first
entering
count
set out a
steal,
may allege
larceny
separate thing,
and a second
as a
and thereon
*11
”,
Law,
the defendant
9 Ed.
grand
be
quoting Bishop
convicted and sentenced for both’
1
Crim.
1062,
(1)
p.
788.
and
charging
Conviction
sentence on both counts of an affidavit
larceny
degree burglary
Tungate.
second
were affirmed in
(1977),
205,
Again, by implication,
v.
Jones State
267 Ind.
369 N.E.2d
overruled
Tungate, supra:
theft,
appellant
degree burglary
“The
the same
theft was a
was
of
upon
convicted both second
based
incident,
situation,
statutory penalties
imposed
were
for both. In this
burglary.”
emphasis.]
lesser included offense of the
Sansom v. State
[Our
(1977),
33,
267 Ind.
319 1233; (1976), 302, 164; v. Hudson State Swininger Ind. N.E.2d 136, 352 (1976), 473, v. authority State N.E.2d like on which established, rely, majority in well appear be conflict other of principles repeatedly recognized traditional criminal law Indiana Supreme Court. case; in majority have theft into “merged”1 conspiracy (1975), 51, v.
Coleman State banditry was auto State, Swininger supra, v. merged robbery; into armed armed rob- felony; bery merged inflicting injury into in the commission of a State, supra, Sansom v. banditry merged theft and auto into State, v. supra, Candler burglary; robbery merged armed into felony murder. The result in each of these cases has been that the defen- dant has been of for he punishment freed an offense has committed out though because arose of same transaction —even the lesser necessarily crime was a not included offense. usually concurrently,2 the sentences
Although would run the fact that more than one sentence is could have on imposed significant impact For one is on thing, though good offender. time based the longest sentence board could be imposed, parole influenced the fact that the offender is serving more than one sentence at the time he comes up parole. importantly, More all the for the convictions count pur- pose determining habitual offender status should the offender be con- felony. victed another under
Marching
“merger”
the banner
from time to time have been
offenses,3
indivisibility,
various concepts:
necessarily lesser
separate
offenses,
offenses,
included
but related
separate
jeopardy.
and former
By virtue
or
concepts
of one more of these
offenses
out of
arising
same criminal
or set of
facts
of-
operative
“merge”
transaction
into the
Although
Supreme
history,
1.
has
apparently
Court
not stated its
this doctrine
origins
English
traces its
to the
merger
common law
doctrine
which called for the
merger of misdemeanors into
if
felonies
the same conduct constituted both. See West’s
35-41-4-3,p. 374.
A.I.C.
general
2. The
sentencing
rule in Indiana has been
permit-
that consecutive
specific
ted
unless
statute authorizes it. Hawkins
v.
et al.
Jenkins et al.
new,
However,
fense supra. of same continuous all the part the offenses are is so if separate
This cir event, set of operative “from but one involved arises if the conduct cumstances”, “independently supportable, not the conduct is if (1972), 587, 592, 290 v. State Thompson Ind. 259 and distinct”. separate, State, State, Swininger supra. v. v. supra; 724, 727. Candler The N.E.2d multiple may punishment accused suffer to be that an appears concern for the same offense. nullify standing me to Indiana statutes long seems to approach
Such an automobile conspriacy for such crimes as offenses creating separate standing separate law that banditry,4 say nothing long case equally because continuing same conduct may arise out the course offenses is required proof statutory charged. offense for each facts of different (1961), 657; v. 548, 173 State v. See Dunkle State 241 Ind. N.E.2d Steffler 476, (1938), (1952), 557, 104 729; Kokenesv. State 213 Ind. 230 Ind. N.E.2d 370, 183 97; Buckley (1932), 524; v. State Durke N.E.2d Ind. State, v. supra. to former subjected defendant has been determining
In whether a (one for the same multiple punishments of which bars aspect jeopardy offense) rejected the “same transaction” expressly Supreme the Court (1951), 229 test. Ford v. State “identity of the offense” adopted test and 55, 144 529; 655; (1924), 516, 98 Foran v. N.E. Ind. Ford, v. State Elder in discussing 282. The court in the Ind. identity the of jeopardy with stated respect test to former proper test be: fense the trans- seems to in his brief that this was same
Appellant argue 1976, banditry repealed was Acts P.L. relating Ind. 35-12-2-1 to automobile 4. Code 1,1977, and was not recodified. effective October felony repealed relating conspiracy Acts to commit a Ind. Code 35-1-111-1 For new law see Ind. 35-41-5-2. October Code P.L. effective be dealing multiple a defendant convictions 35-41-5-3 Under underlying crime. attempt respect to the same conspiracy an of both a convicted However, preclude for convictions the commission be that it does not will noted underlying For see crime. a discussion conspiracy to commit the same and for crime 35-41-5-3, p. 519. A.I.C. West’s “same transaction” test If is claiming appellant action. repudiated expressly test State Elder should be applied, 282; State, applied Foran v. test to be on supra. charge is issue whether the second jeopardy offormer same identical crime by prior affidavit or indict- charged which a has been As stated upon placed jeopardy. ment defendant test, State, supra, in Foran v. “identity of offense” applying whether, test is if is set out in second indictment had what first, there have been a conviction. proved been under could *13 words, be to necessary would the same evidence secure a In other (jase conviction in the now us as in the prosecution? before former (emphasis supplied) 520-21,
Favoring logic such the obvious fact that Supreme Court has merged selectively. The quite offenses unmistakable inference is that “identity the has of offense” test not been abandoned in favor of the (1977), example, Diggs v. State “same transaction” test. For 266 Ind. 1176, 547, 364 N.E.2d conspiracy delivery deliver heroin and the actual of heroin were merged though even the occurred conspiracy at the (1977), v. delivery. same time Mitchell State place the In 266 Ind. 366 N.E.2d sentences for entering felony, commit a rape robbery all permitted despite stand the fact that rape and robbery were the felonies the defendant entered to commit and all took 270, 369 in one Moore State place transaction. In 628, the court not merge carrying did a in violation the gun Firearms Act, robbery armed degree and first burglary though part all were case, the same continuing event. In quite Willis v. State recent degree first burglary rape were not merged though burglary with committed intent to commit the rape.
To use the “merge” same transaction test to of statutory sentences facts, require offenses which proof spectre of different creates the encouragement of criminal conduct. A crafty criminal can with impuni- ty commit lesser crimes secure in the will multiple knowledge be Surely society by harm is done greater one.5 greater into a
“merged” with intent to steal and who in fact steals who breaks burglar his changes in with intent to steal but who breaks by burglar than exists, doctrine as it now both would receive the merger mind. Yet under token, systematically the same if the doctrine is By the same sentence. merge rape; rape; rape incest with burglary could applied, (if kidnapping accomplish were committed in order to kidnapping etc. rape), “identity the former of offense” test jeopardy specifically Until Court, vitality, disowned our I must assume it still has Supreme crimes on of additional or dif- creating separate proof that the statutes for to multi- sentencing ferent facts are valid as basis a defendant sentences for offenses of the same ple multiple arising out transaction. courts, attorneys, This has been the on which premise prosecuting many years. and the have legal profession operated I would affirm the trial court because statute theft6 is a separate offense proof conspiracy7 of additional or different facts from requiring merge. and therefore does not
In
I
respects,
majority.
all other
concur with the
Note
at
Walter Elwood Toller 3,May Filed 1-777A142. 1978.] [No. by statute necessarily have included offenses lesser which are offenses 5. Lesser sentencing, and purposes of greater offense merging into the
long been treated 35-8-1A-6. questioned. See Ind. concept is not Code 1,1977. 148, 24, 35-17-5-3, effective October P.L. repealed Acts 6. see Ind. Code 35-43-4-2. For new law 1,1977. 35-1-111-1, October P.L. effective repealed Acts Ind. Code 35-41-5-2. see Ind. Code For new law