*1 Taylor, v. more recent cases of Williams to the Indiana Su- attorney; and his dent Commission, 120 S.Ct. L.Ed.2d U.S. Disciplinary preme Court (2000), officer, Segura v. Philip J. hearing Hon. McGraw, pro- as N.E.2d 496 and to all other entities 23(3)(d). vided Admis.Dise.R. Appellate In accordance with Ind. Rule 58(A), jurisdiction, transfer of concur. All Justices of opinion Appeals, vacate the of Appeals
and remand to the Court of analysis light of its of reconsideration authority. this recent All Justices concur.
MINOR, C., Appellant, Thomas Indiana, Appellee. of
STATE
No. 49S02-0306-PC-259. of Indiana. Supreme Court MILLER, Defendant- Appellant, 23, 2003. June ORDER Indiana, Plaintiff-Appellee. of STATE the denial of appealing Minor is Thomas No. 02S03-0306-CR-276. ap- relief. He claims his post-conviction ineffec- lawyer appeal on direct pellate of Indiana. Supreme Court fading appeal pro- tive for raise by a being of Minor’s tried six- priety 25, 2003. June § 35- jury, in violation of Ind.Code person affirmed Appeals The Court of
37-1-1. relief. Minor post-conviction
the denial of (Ind.Ct.App.2003),
reh’g denied. Appeals determined that
The Court appellate of Minor’s law performance deficient, held that
yer was but reversal Minor has not shown
unwarranted because fundamentally un
that his conviction was at cit
fair or -unreliable. 782 N.E.2d Fretwell, Lockhart v. 506 U.S.
ing (1993),
369,
and Williams v. re As the State conceded on Sullivan, J., however, concurred hearing, analysis of the Court into account the failed to take *2 ardy provision of the Indiana Constitution because his of a single weapon to elevate the sentencing classifica- tion By of several of his convictions. opinion, memorandum of Ap- peals upheld burglary his conviction and remanded for sentencing reduction of the classifications. peti- We the State’s tion for transfer and affirm the trial court.
During early morning hours of Au- 5, 2002, T.C., woman, gust an adult awoke defendant, intruder, as the covered her placed mouth and a knife to her throat. her, you The defendant asked “Do want to raped you be or do want Appel- to die?” App. lant’s at 302. After being forced to stomach, her T.C. was able to surrepti- tiously dial 911 phone. Upon on her cell realizing made, that the call had been defendant threw the phone across the room and struck in the T.C. head several times. When the defendant asked her if any money, she had T.C. directed him to pocket of her pants, from which he over removed one hundred dollars. The defendant together, tied T.C.’s hands Churchward, Anthony Deputy S. Public pressed back, the knife on her slipped Defender, IN, Wayne, Attorney Fort for fingers vagina his into her anus. Appellant. response call, police the 911 officers Carter, Attorney Steve General of arrived and captured the defendant Indiana, Lafuse, Christopher Deputy L. apartment. T.C.’s One officer observed a IN, Attorney Indianapolis, General Attor- small broken permitting window access to neys Appellee. the door lock. The defendant contends his On Petition To Transfer convictions for B felony class criminal con DICKSON, Justice. finement, B felony robbery, class and two defendant, Miller, The was con- counts of A felony class criminal deviate burglary victed of as a class A felony, two conduct violate the Jeopar Clause, counts of criminal deviate conduct as class dy § Article 14 of the Indiana felonies, A Constitution, criminal confinement as a class “multiple because of en B felony, robbery B felony, as a class presence singular hancements for the of a resisting law enforcement as a class A knife.” Br. Appellant argues at 18. He misdemeanor, battery as a class A that deadly weapon was used to misdemeanor. appealed The defendant his elevate his sentences for these counts. burglary sufficiency grounds Citing Richardson (Ind.1999), and claimed a jeop- violation of the double claim defendant’s is that his (Sullivan, concurring) (emphasis at 56 Richardson’s actual violated convictions added). are or more offenses rule. Two evidence I, of Article crimes is in violation commit “same offense” Constitution, “if, precluding its “the behavior”
Section
*3
statutory ele-
to either the
respect
resulting
enhance the
separately
use to
challenged crimes or the ac-
Rather,
the
“single
ments of
the
convictions.
convict,
the essential
used
tual evidence
deadly weapon during the commission
also
challenged offense
of one
elements
may enhance the level of
separate offenses
elements of another
the essential
establish
State,
759 N.E.2d
each offense.” Gates
However,
at 49.
offense.” Id.
challenged
631,
n. 2
633
Richardson actual evidence
“under
the
in
to find error
the defen-
We decline
test,
Jeopardy
Double
Clause
sentences,
enhanced
and we sum-
dant’s
evidentiary
facts
not violated when
deci-
marily
affirm the Court of
one
the essential elements of
establishing
claim of
rejecting
sion
the defendant’s
only one or even
also establish
offense
evidence.
insufficient
all,
several,
of the essential ele-
but not
judgment
of the trial court is af-
State,
offense.” Bald v.
ments of a second
firmed.
(Ind.2002)
1170,
(quoting
1172
766 N.E.2d
(Ind.
State,
831,
N.E.2d
833
761
Spivey
SHEPARD, C.J.,
and BOEHM
2002)).
State, 743
also Redman v.
See
RUCKER, JJ., concur.
The defen-
N.E.2d
267
SULLIVAN, J.,
concurs with
in the com-
weapon
of the same
dant’s use
separate and distinct offenses
mission of
a violation of
present
thus does not
Justice,
SULLIVAN,
concurring.
Jeopardy
Each of
Clause.
justifies
multiple
enhance-
What
supported
the defendant’s convictions was
of the knife
ments here is the
unique evidentiary
one
by proof of at least
committing
crimes for
by the defendant
any other conviction.
required
fact not
Had the defen-
which he was convicted.
Bald,
which the defendant Richardson, 717 N.E.2d
and punished.”