Jordan B. Wadle, Appellant (Defendant), –v– State of Indiana, Appellee (Plaintiff).
Supreme Court Case No. 19S-CR-340
In the Indiana Supreme Court
August 18, 2020
Argued: September 5, 2019 | Decided: August 18, 2020
Appeal from the Fayette Superior Court, No. 21D01-1511-F3-912, The Honorable J. Steven Cox, Special Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 18A-CR-1465
Opinion by Justice Goff; Chief Justice Rush and Justices David, Massa, and Slaughter concur.
Opinion by Justice Goff
Historically, the prohibition against double jeopardy applied as a procedural bar to a subsequent prosecution for the same offense, whether after acquittal or conviction. Over time, the protection evolved beyond the procedural context to embody a substantive bar to multiple convictions or punishments for the same offense in a single trial. Today, courts often treat these two strands of double jeopardy alike, applying the same analysis regardless of context. The historical record reveals our own vacillation on the issue.1 But just over two decades ago, this Court, in Richardson v. State, resolved any lingering doubt by treating both strands with equal reverence under the Indiana Constitution.
In settling this issue, the Richardson Court adopted a comprehensive analytical framework—consisting of a “statutory elements” test and an “actual evidence” test—for deciding all substantive double-jeopardy claims under article 1, section 14. Subsequent application of these tests, however, proved largely untenable, ultimately forcing the Court to retreat from its all-inclusive analytical framework. What we‘re left with today is a patchwork of conflicting precedent and inconsistent standards, ultimately depriving the Indiana bench and bar of proper guidance in this area of the law.
To be sure, we commend our predecessors on the Richardson Court for their exhaustive survey, insightful
To that end, we expressly overrule the Richardson constitutional tests in resolving claims of substantive double jeopardy. Going forward, and with a focus on statutory interpretation, we adopt an analytical framework that applies the statutory rules of double jeopardy. See infra Section I.B.3. This framework, which applies when a defendant‘s single act or transaction implicates multiple criminal statutes (rather than a single statute), consists of a two-part inquiry: First, a court must determine, under our included-offense statutes, whether one charged offense encompasses another charged offense. Second, a court must look at the underlying facts—as alleged in the information and as adduced at trial—to determine whether the charged offenses are the “same.” If the facts show two separate and distinct crimes, there‘s no violation of substantive double jeopardy, even if one offense is, by definition, “included” in the other. But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the presumption is that the legislation intends for alternative (rather than cumulative) sanctions. The State can rebut this presumption only by showing that the statute—either in express terms or by unmistakable implication—clearly permits multiple punishment.
Facts and Procedural History
Jordan Wadle went out drinking with some friends one night at a local bar in Connersville, Indiana. At some point that evening, Wadle apparently made unsolicited sexual advances toward a woman. The woman‘s husband and his brother, Charles Woodward, later confronted Wadle over the incident in the parking lot. Although physically unprovoked by his interrogators, Wadle went on the offensive, punching and kicking Woodward. Wadle then returned to his car, suggesting an end to the fracas. But as Woodward retreated, Wadle‘s car struck him from behind. Hell-bent on causing further injury, Wadle struck Woodward a second time, pinning him under a guardrail adjacent to the bar. Wadle then sped away, leaving his broken victim behind. Police caught up with the suspected malefactor about an hour later just outside of town. Testing later revealed Wadle had a blood-alcohol level nearly twice the legal limit. Woodward ultimately survived the attack but spent nearly sixty days in the intensive care unit, having underwent surgery for a fractured skull and multiple broken ribs.
The State charged Wadle with multiple offenses:
| Count I | Level-3 felony aggravated battery; |
| Count II | Leaving the scene of an accident, elevated from a Class B misdemeanor to a Level 3 felony for his offense of OWI causing serious bodily injury (OWI-SBI); |
| Count III | OWI-SBI, elevated from a Level 6 to a Level 5 felony due to a previous OWI conviction; |
| Count IV | OWI endangering a person, elevated from a Class A misdemeanor to a Level 6 felony due to a previous OWI conviction; and |
| Count V | OWI with a blood-alcohol concentration of 0.08 or more, elevated from a Class C misdemeanor to a Level 6 felony due to a previous OWI conviction. |
See
The jury acquitted Wadle of Count I but found him guilty of the remaining charges. The trial court entered judgment of conviction and sentenced Wadle to an aggregate term of sixteen years executed with two years suspended to probation.2
The State petitioned for transfer, which we granted, vacating the Court of Appeals decision. See Ind. Appellate Rule 58(A).
Standard of Review
This case presents several questions of law, both statutory and constitutional, which we review de novo. A.M. v. State, 134 N.E.3d 361, 364 (Ind. 2019).
Discussion and Decision
Wadle argues that the jury used the evidence supporting the elevation of his leaving-the-scene offense to also prove the elements of his OWI-SBI offense, a violation of the Indiana Double Jeopardy Clause under the Richardson “actual evidence” test. The State counters that Wadle‘s convictions simply reflect punishment for two separate and sequential harms: OWI-SBI followed by leaving the scene of an accident. Urging deference to “the express directive of the legislature,” the State contends that Wadle‘s convictions must stand because they represent “two independent criminally culpable decisions,” resulting in two different crimes. Pet. to Trans. at 8, 11; Reply in Support of Trans. at 4.
The dispute here forces us to confront long-standing tensions in our double-jeopardy jurisprudence, an area of the law plagued by multiple contextual applications, competing policy concerns, and shifting doctrinal formulations. These variables, a perennial source of confusion for the bench and bar, set the stage for our analysis in Part I of this opinion. We follow this discussion with a summary of Richardson and an in-depth survey of its progeny, ultimately leading to our departure from that precedent. See infra Section I.A.2. We then reassess the protective scope of our Double Jeopardy Clause, concluding that it operates only as a procedural bar to successive prosecutions for the same offense. See infra Section I.B.1. From there, and after clarifying the basic statutory and common-law protections against multiple punishments in a single trial, we proceed to articulate an analytical framework in which to resolve claims of substantive double jeopardy under Indiana law. See infra Sections I.B.2–3. We conclude Part I by discussing other constitutional protections on which defendants may rely to supplement these claims—protections, we believe, better suited to address the perpetual question of whether a defendant‘s actions warrant multiple punishments in a single trial. See infra Section I.B.4. Finally, we apply our analytical
I. Conflicting precedent under our Double Jeopardy Clause calls for a reassessment of its protections.
The Indiana Double Jeopardy Clause, as with its federal counterpart, stands as a bedrock principle of our fundamental law. And yet, despite its façade of simplicity, few other constitutional guarantees present questions as vexing as those found in the ancient maxim that “[n]o person shall be put in jeopardy twice for the same offense.” As a shield against the excesses of government prosecution, the basic premise of the Clause is clear enough. But the scope of its protection, and the circumstances in which it applies, engenders little consensus—and even significant confusion—among courts and commentators. Perhaps the most divisive—and confounding—question posed by this constitutional guarantee centers on the meaning of a single phrase: “same offense.”
A. How do we define “same offense“?
The protective scope of the Double Jeopardy Clause turns on the meaning of “same offense,” a “phrase deceptively simple in appearance but virtually kaleidoscopic in application.” Whalen v. United States, 445 U.S. 684, 700 (1980) (Rehnquist, J., dissenting). Indeed, “there has been, and remains, widespread confusion in the decisional law and in the commentary as to what constitutes the ‘same offense,’ and under what circumstances the protection against double jeopardy may be invoked.” Richardson, 717 N.E.2d at 60 (Boehm, J., concurring).
Historically, the prohibition against double jeopardy—rooted in the English common law pleas of autrefois acquit (former acquittal) and autrefois convict (former conviction)—applied as a procedural bar to successive prosecutions for the same offense. Note, Twice in Jeopardy, 75 Yale L.J. 262, 262, 265–66 nn. 1, 11–12 (1965). Because early American penal codes defined only a handful of criminal offenses, a person seldom committed more than one violation in the same act or transaction. Strict rules of pleading and procedure likewise prevented multiple convictions in a single trial. See Abraham S. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1173–75 (1960) (summarizing common-law rules). By the mid-nineteenth century, however, this paradigm had shifted, the consequence of an expanding body of statutory law defining new—and often overlapping—criminal offenses.3 Relaxed rules of pleading and procedure opened the door to further change, allowing prosecutors to join multiple related charges against a defendant—and even fragment those charges—for a single criminal act. While minimizing the likelihood of unwarranted acquittal, these multi-count indictments “greatly enhance[d] the potential penalty for any given criminal transaction.”4 Note,
To protect the interests of the accused, then, the prohibition against double jeopardy evolved beyond the procedural context to embody a substantive bar to multiple convictions or punishments for the “same offense” in a single trial.5 Jay A. Sigler, A History of Double Jeopardy, 7 Am. J. Legal Hist. 283, 289 (1963). While the issues raised by these two strands of double jeopardy vary, the “crucial inquiry” remains constant: whether one charged offense is the “same” as another charged offense to trigger the constitutional protection. Elmore v. State, 269 Ind. 532, 534, 382 N.E.2d
893, 895 (1978). The methods or standards on which courts have relied to resolve this question warrant a closer look for the proper context to our decision.
1. The meaning of “same offense” depends on the analytical framework applied.
In resolving claims of double jeopardy, courts have generally relied on one of two tests: (1) the “statutory elements” (or “required evidence“) test and (2) the “actual evidence” test.6 See Richardson, 717 N.E.2d at 42. The “statutory elements” test, as the name suggests, applies a comparative analysis of the statutory elements to determine whether two or more offenses are the “same.” Id. at 42 n.21. This test is the standard currently used by the federal judiciary. As articulated by the United States Supreme Court, “where the same act or transaction” violates two distinct statutes, the question is whether each statute ”requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932) (emphasis added). If the answer to this question is “yes,” the two offenses are different; otherwise, the two offenses are the same. Id.
The “actual evidence” test, on the other hand, looks to whether two or more offenses are the same based on the evidence actually presented at trial, rather than engaging in a strict comparative analysis of the statutory elements.7 Richardson, 717 N.E.2d at 42 n.23. This test, in other words, calls for an analysis of the evidence as applied to, rather than as required by,
each element of the statutory offense.8 Whereas the “statutory elements”
Beyond these judicially-created tests, many states have enacted legislation prohibiting the conviction of a defendant—whether in a single trial or in successive proceedings—for both an offense and a “lesser included” offense. Jay A. Sigler, Double Jeopardy: The Development of a Legal and Social Policy 109 (1969). Indiana is no exception. See
2. The “same offense” test in Richardson v. State created more confusion than clarity.
In Richardson v. State, this Court adopted analytical variations of both the “statutory elements” test and the “actual evidence” test. Id. at 49. As formulated by a majority of the Court, “two or more offenses are the ‘same offense’ in violation” of the Indiana Double Jeopardy Clause “if, with respect to either [1] the statutory elements of the challenged crimes or [2] the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.”9 Id. The “statutory elements” test generally tracks the federal Blockburger analysis. Id. at 50 n.41. The “actual evidence” test, on the other hand, examines whether—based on the charging information, jury instructions, and arguments of counsel at trial—there‘s a “reasonable possibility” that the jury used the same evidence to support two or more convictions. Id. at 53; Garrett v. State, 992 N.E.2d 710, 720 (Ind. 2013).
By articulating these tests, the Court in Richardson set out to create a “single comprehensive rule” for resolving all substantive double-jeopardy claims under the Indiana Constitution. Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). But despite this lofty goal, subsequent application of the rule quickly proved untenable, ultimately forcing the Court to retreat from its all-inclusive analytical framework.
To begin with, the adoption of two tests, rather than one, did little to reconcile decades of conflicting precedent. See Richardson, 717 N.E.2d at 49 (drawing upon several early Indiana cases, none of which “presented a comprehensive analysis, a generally articulated test, or a standard of review for double jeopardy claims“). This generated more confusion than
clarity, causing some courts to conflate the separate tests. In Berg v. State, for example, the Court of Appeals concluded that the actual-evidence test could not be met when one offense ”required” certain evidence that “the other offense did not.” 45 N.E.3d 506, 510 (Ind. Ct. App. 2015) (emphasis added). See also McElroy v. State, 864 N.E.2d 392, 397 (Ind. Ct. App. 2007) (concluding that, under “either the statutory elements test or the actual evidence test,” each charged offense “requires” proof of facts not required by the other).
Although likely devised for analytical flexibility in resolving complex double-jeopardy claims, the Richardson either/or approach has also led to inconsistent results, as courts selectively apply one test over another. For example, less than four months after Richardson, the Court of Appeals considered the actual-evidence test‘s application to Indiana‘s Racketeer Influenced and Corrupt Organizations (RICO) Act. See Chavez v. State, 722 N.E.2d 885, 893 (Ind. Ct. App. 2000). The RICO Act prohibits a person from committing a “corrupt business influence” through “a pattern of racketeering activity.”
the court found it illogical “that the legislature meant to substitute the RICO offense for the underlying predicate offenses rather than to permit prosecution” for both crimes. Id. (citing, among other federal precedent, Albernaz v. United States, 450 U.S. 333 (1981)).
A strict application of the actual-evidence test can also lead to illogical results—and not just in “complex criminal enterprise cases.” In Vestal v. State, the
the completed theft as an element of the burglary.”12 773 N.E.2d at 807. This lack of persuasive reasoning compelled Justice Boehm to write separately, concurring in result but opining that the Court had effectively abandoned the actual-evidence test. Id. at 808.
Around the time these cases were decided, the Court‘s standard for analyzing actual-evidence test claims began to shift. As first articulated in Richardson, the test required a defendant to show “a reasonable possibility” that the jury used the same evidence “to establish the essential elements of one offense” and “the essential elements of a second challenged offense.” 717 N.E.2d at 53. Subsequent formulations of this standard required the defendant to show that the “same evidence used by the jury to establish the essential elements” of one offense was ”included among the evidence establishing the essential elements” of another offense. Chapman v. State, 719 N.E.2d 1232, 1234 (Ind. 1999) (emphasis added). But in early 2002, the Court declared the test as ”not merely whether the evidentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense.” Spivey, 761 N.E.2d at 833. Rather, the Court specified, there is no violation of the Double Jeopardy Clause “when the evidentiary facts establishing the essential elements of one offense” establish less than all of “the essential elements of a second offense.” Id. Put simply, the “actual evidence” test, following Spivey, applies “to
By redefining the standard used to determine whether two offenses are the “same offense,” the Spivey Court—while invoking the actual-evidence
test—effectively narrowed the scope of protection under the Indiana Double Jeopardy Clause. And this shift in analytical standard illuminated other problems in the Court‘s double-jeopardy jurisprudence. In Gross v. State, the defendant appealed his convictions for murder and robbery as a Class A felony, arguing that evidence of the same bodily injury (the victim‘s death) impermissibly elevated both offenses.13 769 N.E.2d 1136, 1138 (Ind. 2002). The Court initially concluded that the evidence proving the elements of murder fell short of proving each element of robbery as a Class A felony (specifically, the knowing or intentional taking of property from another person). Id. at 1139. Under Spivey, then, the Court found no double-jeopardy violation. Id. But that didn‘t end the inquiry. In reversing its method of analysis, the Court went on to find a “reasonable possibility” that the jury relied on evidence “establishing all the essential elements of robbery as a Class A felony to establish also all the essential elements of murder.” Id. (emphasis added).
The problem with Gross, other than its analytical infidelity to Spivey, is that it renders the survival of a defendant‘s double-jeopardy challenge contingent on the sequence of analysis rather than any underlying principled legal theory.14 This has left the actual-evidence test vulnerable to arbitrary application. In Hines v. State, for example, this Court found a double-jeopardy violation “because the facts establishing criminal confinement would also establish battery,” even though the facts establishing the latter offense would not have established the former offense. 30 N.E.3d 1216, 1222 (Ind. 2015). See also Bradley v. State, 867
N.E.2d 1282, 1284–85 (Ind. 2007) (same). But in Carrico v. State, this Court found no double-jeopardy violation where evidence establishing murder established only one element of B felony robbery, even though evidence establishing the latter crime may have established the former. 775 N.E.2d 312, 314 (Ind. 2002). See also Robinson v. State, 775 N.E.2d 316, 320 (Ind. 2002) (same).
Failing to resolve all double-jeopardy claims under “a single comprehensive rule,” the Court increasingly turned to the rules of statutory construction and common law announced by Justices Sullivan and Boehm in their respective Richardson concurrences. See, e.g., Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). Under this analytical framework, described as “separate from and additional to” the protections under the actual-evidence test, Guyton v. State, 771 N.E.2d 1141, 1145 (Ind. 2002) (Dickson, J., concurring in result), the Court has retreated even further from Richardson, generating confusion among the bench and bar over the proper standard to address claims of double jeopardy,
What we‘re left with, then, is a patchwork of conflicting precedent, a jurisprudence of “double jeopardy double talk” that underscores Richardson‘s inherent flaws. See Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1807 (1997). The shifting standards and inconsistent application of controlling tests create an unpredictable approach to double jeopardy, ultimately depriving our courts of clear guidance and preventing the Indiana bar—defense counsel and prosecutors alike—from effectively preparing their cases and representing their clients.
For these reasons, we expressly overrule the constitutional tests formulated in Richardson as they apply to claims of substantive double
jeopardy.15 We must now decide on the proper analytical framework for resolving these claims going forward.
B. What‘s the proper analytical framework for resolving claims of substantive double jeopardy?
The “statutory elements” test and the “actual evidence” test have both proven inadequate, rendering our substantive double-jeopardy law either too restrictive or too generous of protection.16 The latter test, as we have seen, is fair in principle but unwieldly in practice, subject to illogical results and vulnerable to confusion and misapplication. The “statutory elements” test, on the other hand, though relatively easy to apply, offers little protection to criminal defendants: so long as one charged offense diverges from another charged offense based on a single element of proof, prosecutors can easily circumvent the test.
The more practical approach, we believe, follows the familiar rules of statutory construction embraced by Justice Boehm in his concurring Richardson opinion. By adopting this methodology, we recognize the importance of charting a clear path going forward. To that end, we begin (1) by reassessing the protective scope of our Double Jeopardy Clause and
(2) by clarifying the basic protections against multiple punishments in a single trial. We then (3) articulate an analytical framework in which to resolve claims of substantive double jeopardy and (4) consider other constitutional protections on which defendants may rely to supplement these claims.
The question of whether constitutional double-jeopardy analysis applies to both the successive-prosecution and multiple-punishment contexts is a divisive one. Anne Bowen Poulin, Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. Colo. L. Rev. 595, 600 (2006) (citing cases and commentary espousing opposite views). Courts often treat both strands the same, and “cases dealing with one context cite precedent from another without commenting on any potential difference between the two.” Richardson, 717 N.E.2d at 59 (Boehm, J., concurring). After all, the reasoning goes, “the prosecution may not do in one trial what it is prohibited from doing in two trials.” Elmore, 269 Ind. at 534, 382 N.E.2d at 894–95. But such an approach, Justice Boehm opined in Richardson, “results in an unsatisfactory compromise that breeds confusion and impairs the important values underlying the Double Jeopardy Clause.” 717 N.E.2d at 58. We agree.
A “primary purpose” of the Double Jeopardy Clause is “to preserve the finality of judgments.” Crist v. Bretz, 437 U.S. 28, 33 (1978).17 By ensuring finality, this constitutional guarantee shields against governmental harassment in that it bars the state from making “repeated attempts to convict an accused for the same offense.” Thompson v. State, 259 Ind. 587, 591, 290 N.E.2d 724, 726 (1972). Indeed, the absence of such restraint would subject the defendant “to embarrassment, expense and ordeal,” effectively “compelling him to live in a continuing state of anxiety and insecurity.” Green v. United States, 355 U.S. 184, 187 (1957). Finality also minimizes the risk of wrongful conviction upon retrial. Without the Double Jeopardy Clause, the state would have unfettered opportunity at “honing its trial strategies and perfecting its evidence” to ensure the defendant‘s condemnation. Tibbs v. Florida, 457 U.S. 31, 41 (1982). Whereas multiple punishments in a single trial raise concerns over excessiveness, a subsequent prosecution for the same offense “increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even
enhance the risk that an innocent
To be sure, both strands of double jeopardy—substantive and procedural—share a “core policy” of preventing the state “from prosecuting and punishing arbitrarily, without legitimate justification.” Twice in Jeopardy, 75 Yale L.J. at 267. But the procedural bar to double jeopardy, “whether following acquittals or convictions,” placates “concerns that extend beyond merely the possibility of an enhanced sentence” or excessive punishment. See Grady v. Corbin, 495 U.S. 508, 518 (1990), overruled by United States v. Dixon, 509 U.S. 688 (1993).19 And for this reason, our Double Jeopardy Clause should focus its protective scope exclusively on successive prosecutions for the “same offense.”
Our conclusion here does not suggest that defendants enjoy no protection from multiple punishments in a single proceeding; it does, however, shift our analysis to other sources of protection—statutory, common law, and constitutional.
2. The substantive bar to double jeopardy restrains the judicial power to impose multiple punishments for the same offense, not the legislative authority to define crimes and fix punishments.
Indiana has long recognized the common-law principle that a “lesser included” offense is the “same” as its greater (encompassing) offense. See, e.g., Kokenes, 213 Ind. at 479, 13 N.E.2d at 525–26 (“A prosecution for any part of a single crime, bars any further prosecution based upon the whole or a part of the same crime.“); Wininger, 13 Ind. at 541 (relying on the same rule). Applying variations of this principle, this Court has declined to convict and punish a defendant in a single trial for (1) an offense and its lesser-included offense, (2) two offenses consisting of the same act, (3) one offense consisting of the same act as an element of another offense, (4) an elevation of an offense imposed for the same “behavior or harm” as another offense, and (5) a conspiracy where the overt act is the same act as
Under these sources of authority, the substantive bar to double jeopardy restrains the courts’ power to impose multiple punishments for the same offense, not the legislative authority to define crimes and fix punishments. See Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring) (citing precedent in which “this Court has been unwilling to impose multiple punishments” in a single trial); id. at 65 (Boehm, J., concurring) (concluding that courts should resolve substantive double-jeopardy claims “either by explicit direction from the legislature . . . or by commonly cited rules of statutory construction and presumed legislative intent“). In other words, a court may not exceed its authority by convicting and punishing a defendant in a single trial beyond what the statutes clearly permit. See Jackson v. State, 625 N.E.2d 1219, 1221 (Ind. 1993) (holding that multiple punishments may “be imposed for ‘the same offense’ where the will of the legislative body to do so is clear“); W. Union Tel. Co. v. Axtell, 69 Ind. 199, 202 (1879) (reciting the principle that a “court cannot create a penalty by construction, but must avoid it by construction, unless it is brought within the letter and the necessary meaning of the act creating it“); Gillespie v. State, 9 Ind. 380, 384–85 (1857) (concluding that the defendant‘s conviction for “assault and battery” in lieu of “assault and battery with intent to murder” fell within “the language and the spirit” of Indiana‘s 1852 included-offense statute).21
With this premise in mind, we now proceed to articulate an analytical framework in which to resolve claims of substantive double jeopardy.
3. Analysis of a substantive double jeopardy claim considers (a) the statutory offenses charged as well as (b) the facts underlying those offenses.
Substantive double jeopardy claims come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims. Our decision today in Powell v. State, — N.E.3d — (Ind. 2020), implicates the former scenario; this case implicates the latter. In either circumstance, the dispositive question is one of statutory intent. See Paquette v. State, 101 N.E.3d 234, 239 (Ind. 2018) (single statutory offense/multiple victims); Emery v. State, 717 N.E.2d 111, 112–13 (Ind. 1999) (multiple statutory offenses/single victim).
a. The Statutory Offenses Charged
When multiple convictions for a single act or transaction implicate two or more statutes, we first look to the statutory language itself. (The mere existence of the statutes alone is insufficient for our analysis.) If the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication,22 the court‘s inquiry comes to an end and there is no violation of substantive double jeopardy.
If, however, the statutory language is not clear, a court must then apply our included-offense statutes to determine statutory intent. See Collins v. State, 645 N.E.2d 1089, 1093 (Ind. Ct. App. 1995) (noting that, to resolve a claim of substantive double jeopardy, our included-offense statutes guide judicial “analysis of legislative intent“), aff‘d in part, vacated in part on other grounds, 659 N.E.2d 509 (Ind. 1995). Under Indiana Code section 35-38-1-6, a trial court may not enter judgment of conviction and sentence for both an offense and an “included offense.” An “included offense,” as defined by our legislature, is an offense
- that “is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged,”
- that “consists of an attempt to commit the offense charged or an offense otherwise included therein,” or
- that “differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.”
If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy. If, however, one offense is included in the other (either inherently or as charged), the court must then look at the facts of the two crimes to determine whether the offenses are the same. Richardson, 717 N.E.2d at 67 (Boehm, J., concurring). See also Bigler v. State, 602 N.E.2d 509, 520 (Ind. Ct. App. 1992) (noting that “analysis of legislative intent” in Indiana, unlike the federal Blockburger test, “does not end with an evaluation and comparison of the specific statutory provisions which define the offenses“).24 This brings us to the second step of our inquiry.
Once a court has analyzed the statutory offenses charged, it must then examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial.25 Bigler, 602 N.E.2d at 521. Based on this information, a court must ask whether the defendant‘s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010), cited with approval by Hines, 30 N.E.3d at 1219.26
If the facts show two separate and distinct crimes, there‘s no violation of substantive double jeopardy, even if one offense is, by definition, “included” in the other.27 But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the prosecutor may charge these offenses only as alternative (rather than as cumulative) sanctions.28 The State can rebut this presumption only by showing that the statute—either in express terms or by unmistakable
4. The bar against multiple punishments in a single trial enjoys other state constitutional protections.
Our conclusions today do not suggest that protection from multiple punishments in a single prosecution falls beyond the constitutional pale. To the contrary, legislators and prosecutors do not necessarily have free rein to authorize multiple punishments or to indict on multiple overlapping offenses. The Indiana Bill of Rights offers a larger framework of constitutional guarantees designed to protect Hoosiers “from the excesses of government.” Chief Justice Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 Ind. L. Rev. 575, 576 (1989). Our constitution also authorizes independent appellate review and revision of a criminal sentence found “inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B) (implementing article 7, sections 4 and 6 of the Indiana Constitution). Substantive double-jeopardy protections in Indiana operate in harmony with, not in isolation from, these supplemental constitutional protections. And their importance to our decision today warrants more than passing reference.
a. Article 1, Section 16
Still, other circumstances implicating section 16‘s proportionality clause clearly call for judicial intervention. Specifically, this Court has long interpreted section 16 as prohibiting the legislature from imposing “punishment for a lesser included offense which is greater in years . . . than the greater offense.” Dembowski v. State, 251 Ind. 250, 253, 240 N.E.2d 815, 817 (1968). To impose such a penalty amounts to an abuse of “Constitutional power to define criminal offenses and set penalties thereof.” Id. at 252, 240 N.E.2d at 817. See also Heathe v. State, 257 Ind. 345, 349, 274 N.E.2d 697, 699 (1971) (“The constitutional mandate that ‘all penalties shall be proportioned to the nature of the offense’ requires that the maximum for a lesser offense be less than the maximum for a higher offense.“).
b. Article 1, Section 13
Our Bill of Rights also constrains the prosecutor‘s broad discretionary power to pursue multiple charges for the same offense.
By definition, a lesser-included offense implicates a defendant‘s due process right to fair notice: unless the defendant himself requests an instruction on the offense (thereby waiving the notice requirement), he must defend against a charge not specifically pleaded in the prosecutor‘s indictment or information. Blair, Constitutional Limitations, supra, at 451–52. See also Young, 30 N.E.3d at 723 (observing that lesser inclusion and fair notice are not necessarily coextensive). Some courts have held that the indictment itself is “sufficient notice to the defendant that he may be called to defend the lesser included charge.” Blair, Constitutional Limitations, supra, at 452 (citing cases). But this conclusion rests on a theory that compares the statutory elements of the included offense with the elements of the greater offense—a theory not entirely consistent with this Court‘s precedent or (as discussed above) with presumed legislative intent. See Wright, 658 N.E.2d at 566–67 (citing
Because our legislature has expanded the potential range of included offenses beyond their mere statutory elements, the prosecutor must draft her charging instrument with sufficient precision to give the defendant proper notice of those offenses. Otherwise, deficient pleading notice—whether due to the omission of a statutory element or the omission of an operative fact—may bar an instruction on an alleged included offense, let alone a conviction on that offense.31 See Wright, 658 N.E.2d at 567 (prohibiting a trial court from giving “a requested instruction on the alleged lesser included offense” if it‘s “neither inherently nor factually included in the crime charged“); Peek v. State, 454 N.E.2d 450, 453 (Ind. Ct. App. 1983) (reciting the principle that clear notice “operates to bar a conviction of a lesser included offense unless the charging instrument alleges all of the essential elements of that offense“) (citation omitted). At the same time, there‘s nothing to prohibit the defendant from requesting such an instruction, so long as the evidence adduced at trial supports it. See Wright, 658 N.E.2d at 567. If the prosecutor can “wield factual omissions as a sword to preclude lesser offenses, an accused should be able to similarly rely on them as a shield to limit his defense to those matters with which he stands accused.” Young, 30 N.E.3d at 725 (internal quotation marks and citation omitted).
Finally, we note that, while the legislature may enact procedures for amending a charging instrument, it‘s limited in how it regulates amendments of substance (rather than of form).32 And these procedural measures may never interfere with the defendant‘s due process right to clear notice of the charges against him. See, e.g., Hinshaw v. State, 188 Ind. 147, 153, 122 N.E. 418, 420 (1919) (striking down as void, “so far as it applies to indictments,” an act requiring the “opposing party” to move for specificity of allegations in all criminal pleadings).
c. Article 7, Sections 4 and 6
The preceding sections under our Bill of Rights aren‘t the only potential constitutional remedies for a defendant facing cumulative punishment. Article 7, section 4 of the Indiana Constitution vests in this Court “the power to review all questions of law and to review and revise the sentence imposed.” Our Court of Appeals exercises similar authority in criminal cases, “to the extent provided by rule.” Ind. Const. art. 7, § 6. These constitutional mandates, as implemented through Indiana Appellate Rule 7(B), permit a criminal offender to challenge the trial court‘s sentence as “inappropriate in light of the nature of the offense and the character of the offender.”
Despite the criticism it‘s received, article 7‘s review-and-revise clause stands as an effective check on the legislative proliferation of overlapping criminal offenses and on the prosecutor‘s multi-count indictment.33 See Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003) (recognizing, as one factor driving the potential need to revise a cumulative sentence, the prosecutor‘s decision “to charge multiple aspects of the same event as separate counts defined by separate criminal statutes“). To be sure, article 7 vests no authority in an appellate court to vacate a conviction, potentially
We now proceed to the merits of Wadle‘s claim.
II. Because the statutory offenses charged indicate alternative (rather than multiple) punishments, Wadle‘s convictions violate double jeopardy.
To reiterate our test, when multiple convictions for a single act or transaction implicate two or more statutes, we first look to the statutes themselves. If either statute clearly permits multiple punishment, whether expressly or by unmistakable implication, the court‘s inquiry comes to an end and there is no violation of substantive double jeopardy. But if the statutory language is not clear, then a court must apply our included-offense statutes to determine whether the charged offenses are the same. See
Here, of the four offenses for which Wadle stands convicted, the State concedes that two of them—OWI endangering a person (Count IV) and OWI with a blood-alcohol concentration of 0.08 or more (Count V)—violate double jeopardy. We agree, even under our new analytical framework. Neither statute clearly permits cumulative punishment and the latter offense is an included offense of the former. See Kovats v. State, 982 N.E.2d 409, 414 (Ind. Ct. App. 2013) (holding that misdemeanor OWIs are lesser included offenses of a felony OWI). What‘s more, neither party insists that the facts show two distinct crimes.
That leaves Wadle with two convictions: (1) leaving the scene of an accident, and (2) OWI causing serious bodily injury (or OWI-SBI). An “operator of a motor vehicle” commits the first offense, a Class B misdemeanor, when he or she “knowingly or intentionally” leaves the scene of an accident without providing the necessary information and assistance.
Neither statute clearly permits multiple punishments, either expressly or by unmistakable implication. To be sure, both statutes—respectively—permit an enhanced punishment. But an enhanced punishment, whether based on attendant circumstances or on a prior conviction, presents no “double jeopardy issue at all.” See Workman v. State, 716 N.E.2d 445, 448 (Ind. 1999) (enhanced punishment based on “circumstances surrounding” the crime). See also Mayo v. State, 681 N.E.2d 689, 694 (Ind. 1997) (enhancement is neither “a new jeopardy” nor an “additional penalty” for an earlier offense, but rather “a stiffened penalty for the latest crime“) (citation omitted). Because the elevation is “not a separate offense or conviction,” double-jeopardy analysis is simply inapposite. Workman, 716 N.E.2d at 448. See also Woods v. State, 234 Ind. 598, 608, 130 N.E.2d 139, 143–44 (1955) (applying this principle to vacate several OWI convictions).
With no statutory language clearly permitting multiple convictions, we now analyze the offenses charged under our included-offense statutes. Here, both statutes involve operating a vehicle while intoxicated resulting in serious bodily injury. The only difference is that one offense (OWI-SBI) creates “a less serious harm or risk of harm to the same person, property, or public interest” than the other offense (leaving the scene “during or after” OWI-SBI).34 See
Having determined that one offense is included in the other, we must now look at the facts to determine whether the two offenses are the same. Within a matter of “minutes,” Wadle physically attacked Woodward in the parking lot, retreated to his car, struck his victim twice, pinned him under a guardrail, and then fled the scene. Tr. Vol. 1, pp. 118, 247. Wadle, according to the prosecutor, had but a single objective—he “wanted a fight so he started one and he finished it by running over a man twice his age.”
Because Wadle‘s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action,” we consider them “one continuous transaction.” See Walker, 932 N.E.2d at 735. Cf. id. at 737–38 (concluding that the doctrine did not apply because each statutory offense—burglary, robbery, and criminal confinement—was a “distinct chargeable crime” with multiple victims involved, not “an offense and a lesser included offense“); Firestone v. State, 838 N.E.2d 468, 472 (Ind. Ct. App. 2005) (holding that convictions for rape and criminal deviate conduct did not violate the doctrine because the defendant “clearly committed two different offenses at different times“).
Still, the State contends that the legislature intended to punish Wadle “for the two separate and sequential harms that he caused: OWI causing serious bodily injury and then leaving the scene of an accident.” Appellee‘s Br. at 8 (emphasis added). In other words, because “Wadle committed OWI causing serious bodily injury before he left the scene of the accident,” the State argues that his conviction for both offenses resulted in no double-jeopardy violation.
Our General Assembly defined the leaving-the-scene offense as a Level 3 felony when the operator leaves the scene of an accident “during or after” committing OWI-SBI. See
In sum, we conclude that the separate statutory offenses—Level 5 felony OWI-SBI and Level 3 felony leaving the scene of an accident—present alternative (rather than cumulative) sanctions on which to charge Wadle.
When the defendant is found guilty of both the included offense and the
Conclusion
For the reasons above, we hold that Wadle‘s multiple convictions violate the statutory prohibition against substantive double jeopardy. Accordingly, we affirm in part, reverse in part, and remand with instructions for the trial court to vacate his convictions on all counts, save for his Level 3 felony conviction for leaving the scene of an accident (Count II). And because this conviction alone justifies the penalty imposed, see
Rush, C.J., and David, Massa, and Slaughter, JJ., concur.
ATTORNEY FOR APPELLANT
Cara Schaefer Wieneke
Wieneke Law Office, LLC
Brooklyn, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana