double jeopardy violation in Indiana

2024See I.C. § 35-31.5-2-168. [22] To find a double jeopardy violation under the Richardson actual-evidence test, “a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” 717 N.E.2d 32, 53 (Ind. 1999); see also Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008) (explaining that the existence of a “‘reasonable possibility’ turns on a practical assessment of whether the jury may have latched on to exactly the sam

2024Id. (“Even if the ... statutory elements test[] does not disclose a double jeopardy violation, the actual evidence test may.”); see, e.g., Guffey v. State, 717 N.E.2d 103, 105-07 (Ind. 1999) (finding convictions for aiding in the commission of armed robbery and conspiracy to commit armed robbery violated Article 1, Section 14 under the actual-evidence test, although the differing elements of the two offenses meant the statutory-elements test was not met). [89] My colleagues focus almost exclusively on the statutory elements of Schoeff’s charged offenses, rather than the evidence introduced to

2026“A trial court’s act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008).

2025As this Court has explained, “[a] trial court’s act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008).

2026Under Spivey [v. State, 761 N.E.2d 831 (Ind. 2002),] then, the Court found no double-jeopardy violation.

2024Spivey, 761 N.E.2d at 833 . [66] By affirmatively citing Richardson and Chapman, which found a double jeopardy violation when the same evidence proved all the essential elements of one crime but only part of the essential elements of another, Spivey signaled that it was not changing Richardson’s actual-evidence test.

2024As such, Bush’s federal double jeopardy argument fails as the question of whether the challenged Court of Appeals of Indiana | Opinion 23A-CR-2591 | September 12, 2024 Page 7 of 17 evidence was admissible “is governed by normal evidentiary rules—not the Double Jeopardy Clause.” Currier, 585 U.S. at 507 . [13] With respect to the Indiana Constitution, the Indiana Supreme Court has applied the actual-evidence test set forth in Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999), to determine whether a double-jeopardy violation occurred when evidence is presented on retrial following an acquittal

2021Then, as a matter of first impression, it recognized a “slightly modified” Richardson actual evidence test and held that a double jeopardy violation may occur on retrial if “there is a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of the offense for which the defendant was acquitted may also have been used to establish all of the essential elements of the offense for which the defendant was convicted.” Garrett, 992 N.E.2d at 723 .

2024See I.C. § 35-31.5-2-168. [22] To find a double jeopardy violation under the Richardson actual-evidence test, “a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” 717 N.E.2d 32, 53 (Ind. 1999); see also Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008) (explaining that the existence of a “‘reasonable possibility’ turns on a practical assessment of whether the jury may have latched on to exactly the sam

2020Although the “reasonable possibility” language is most commonly associated with the actual evidence test, see Lee, 892 N.E.2d at 1236 , that language has also been used to determine whether a double jeopardy violation has occurred under the very same act test.

2026In 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).

2024III. [19] The State asserts the trial court merged Counts 1 and 2, “that does not remedy a double jeopardy violation,” and this Court “should remand to the trial court for the court to vacate Brewer’s conviction for attempted burglary.” Appellee’s Brief at 16 n.5, 13 n.3, (citing Hines v. State, 30 N.E.3d 1216, 1221 (Ind. 2015) (double jeopardy violation not remedied by merger after conviction has been entered)).

2024As this Court has observed, “[a] trial court’s act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation.” Stickrod v. State, 108 N.E.3d 385, 392 (Ind. Ct. App. 2018) (citing West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014), trans. denied), trans. denied.

2020Id. [17] We observe that “a double jeopardy violation occurs when judgments of conviction are entered and cannot be remedied by the practical effect of concurrent sentences or by merger after conviction has been entered.” Payton v. State, 818 N.E.2d 493, 497 (Ind. Ct. App. 2004) (quotation marks omitted), Court of Appeals of Indiana | Memorandum Decision 19A-CR-1456 | March 31, 2020 Page 13 of 14 trans. denied (2005); see also Bass v. State, 75 N.E.3d 1100, 1103 (Ind. Ct. App. 2017) (concluding that merger of convictions was insufficient to remedy double jeopardy violation); West v. State, 22

2023This common-law “elevation” or “enhancement” rule was one of five rules identified in Justice Sullivan’s concurrence in Richardson. 2 In Guyton, the Indiana Supreme Court adopted these common-law rules as additional bases for finding a double jeopardy violation independent of Richardson. 771 N.E.2d at 1143 .

2010According ly, I would find that such violates the Double Jeopardy provisions of the Indiana Constitution under the Richardson "actual evidence test," which held "that the Double Jeopardy clause is violated if there is a 'reasonable possibility that the evidentiary facts used by the fact finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense"" Guyton v. State, 771 N.E.2d 1141, 1142 (Ind.2002) (citing Richardson v. State, 717 N.E.2d 32 (Ind.1999)).

2020Id. [17] We observe that “a double jeopardy violation occurs when judgments of conviction are entered and cannot be remedied by the practical effect of concurrent sentences or by merger after conviction has been entered.” Payton v. State, 818 N.E.2d 493, 497 (Ind. Ct. App. 2004) (quotation marks omitted), Court of Appeals of Indiana | Memorandum Decision 19A-CR-1456 | March 31, 2020 Page 13 of 14 trans. denied (2005); see also Bass v. State, 75 N.E.3d 1100, 1103 (Ind. Ct. App. 2017) (concluding that merger of convictions was insufficient to remedy double jeopardy violation); West v. State, 22

2019See id.; Green, 856 N.E.2d at 704 ; Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008) (where trial court entered judgments of conviction on jury’s verdicts of guilty for dealing and conspiracy, then later merged the convictions for double jeopardy reasons, such merging without also vacating the conspiracy conviction was insufficient to cure the double jeopardy violation)[, trans. denied]. 982 N.E.2d 409 , 414–15 (Ind. Ct. App. 2013). [22] Here, there is no indication that the trial court ever entered judgments of conviction on Counts III, V, and VI.

2020We have recognized that “[a] trial court act of merging, without also vacating, the conviction is not sufficient to cure a double jeopardy violation.” Gregory v. State, 885 N.E.2d 698 , 703 (Ind. Ct. App. 2008), trans. denied; cf. Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (“[A] merged offense for which a defendant is found guilty, but on which there is neither a judgment nor a sentence, is ‘unproblematic’ as far as double jeopardy is concerned.”).

2019See id.; Green, 856 N.E.2d at 704 ; Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008) (where trial court entered judgments of conviction on jury’s verdicts of guilty for dealing and conspiracy, then later merged the convictions for double jeopardy reasons, such merging without also vacating the conspiracy conviction was insufficient to cure the double jeopardy violation)[, trans. denied]. 982 N.E.2d 409 , 414–15 (Ind. Ct. App. 2013). [22] Here, there is no indication that the trial court ever entered judgments of conviction on Counts III, V, and VI.

2018Id. at 1048 . [24] In Bennett’s direct appeal, the Court disregarded his discussion of the Smith case and ruled against him on his Indiana Double Jeopardy Clause claim.

2017The majority notes that Walton has not challenged the SVF statute, yet appellate courts "must address double jeopardy viola- tioñs sua sponte where they exist because ‘a double jeopardy violation, if shown, implicates fundamental rights.' ” Montgomery v. State, 21 N.E.3d 846 , 864 n.5 (Ind. Ct. App. 2014) (quoting Smith v. State, 881 N.E.2d 1040, 1047 (Ind. Ct. App. 2008)), trans. denied.

2026Timing is key—“‘merger after judgments of conviction have been entered does not cure the double jeopardy violation.’” Gale v. State, 882 N.E.2d 808, 819 (Ind. Ct. App. 2008) (emphasis added) (quoting Morrison v. State, 824 N.E.2d 734 , 742 n.5 (Ind. Ct. App. 2005), trans. denied). [10] Here, at the end of the presentation of evidence at Gordy’s bench trial, the court asked the State whether it would agree that judgment of conviction could only be entered as to Count I and that Counts II, III, and IV would merge.

2019See Morrison v. State, 824 N.E.2d 734, 742 (Ind. Ct. App. 2005) (noting that a double jeopardy violation cannot be remedied by the “practical effect” of concurrent sentences or by merger after a conviction has been entered), trans. denied.

2026Thus, the more appropriate avenue for the guilty-plea defendant is to file a petition for post-conviction relief, “thereby triggering a procedure in which the facts can be litigated.” Mapp, 770 N.E.2d at 334 ; see Ind. Post-Conviction Rule 1(5) (permitting the court to “receive affidavits, depositions, oral testimony, or other evidence”).

2015While the nature of Doan’s plea has no impact on the resolution of the issue before us, we emphasize the need for plea agreements on felony charges to be in writing. 5 Citing to Mapp v. State, the State notes that Doan has waived his right to challenge his plea on the grounds that it constitutes a double jeopardy violation. 770 N.E.2d 332, 334 (Ind. 2002) (holding defendant waived right to challenge plea agreement on double jeopardy grounds and there is no exception even for “facially duplicative” charges).

2019Indeed, as our supreme court has explained, "[a] double jeopardy violation occurs when a court enters judgment twice for the same offense 'and cannot be remedied by the "practical effect" of concurrent sentences or by merger after conviction has been entered.' " Hines , 30 N.E.3d at 1221 (quoting Jones v. State , 807 N.E.2d 58 , 67 (Ind. Ct. App. 2004), trans. denied ); cf. Green v. State , 856 N.E.2d 703 , 704 (Ind. 2006) ("[A] merged offense for which a defendant is found guilty, but on which there is neither a judgment nor a sentence, is 'unproblematic' as far as double jeopardy is concerne

2015A double jeopardy violation occurs when a court enters judgment twice for the same offense “and cannot be remedied by the ‘practical effect’ of concurrent sentences or by merger after conviction has been entered.” Jones v. State, 807 N.E.2d 58, 67 (Ind.Ct.App.2004), trans. denied; accord Green v. State, 856 N.E.2d 703, 704 (Ind.2006); Davis v. State, 770 N.E.2d 319 , 323 n. 1 (Ind.2002); Wise v. State, 719 N.E.2d 1192, 1200-01 (Ind.1999); McBroom v. State, 530 N.E.2d 725, 727 (Ind.1988).

2016Williams v. State, 892 N.E.2d 666, 668-69 (Ind. Ct. App. 2008).

2013See Burnett, 736 N.E.2d at 263 (remanding to the trial court with instructions to vacate the defendant’s aggravated battery conviction); see also Williams v. State, 892 N.E.2d 666, 669 (Ind. Ct. App. 2008) (concluding that the appropriate remedy for a double jeopardy violation was vacating the conviction and sentence with the less severe penal consequences) (citing Richardson, 717 N.E.2d at 54-55 ), trans. denied.3 CONCLUSION For the foregoing reasons, we affirm Wilson’s conviction for robbery as class A felony and remand with instructions to vacate Wilson’s conviction for aggravated battery a

2026And in Snyder v. State, the appellate panel declined to read Tumulty as applying to a defendant who pled guilty “without the benefit of a plea agreement” and when, given both parties’ concession to the double-jeopardy violation, the conviction error was “unmistakable on the face of the record.” 176 N.E.3d 995 , 999– 1000 (Ind. Ct. App. 2021); see also Kunberger v. State, 46 N.E.3d 966, 971 (Ind. Ct. App. 2015) (recognizing an exception to Tumulty when a defendant pleads guilty to the charged offenses “without the benefit of a plea agreement” and when the challenged “offenses plainly arose from

2017See Kunberger v. State, 46 N.E.3d 966, 972 (Ind. Ct. App. 2015) (addressing a defendant’s double jeopardy claim following a guilty plea and holding that we were left with no basis on which to conclude there was a double jeopardy violation under the actual evidence test).

2025See, e.g., Berg v. State, 45 N.E.3d 506, 508 (Ind. Ct. App. 2015) (rejecting the State’s concession of a double jeopardy violation).

2018Weddle v. State, 997 N.E.2d 45, 47 (Ind. Ct. App. 2013), trans. denied; see also Berg v. State, 45 N.E.3d 506, 509 (Ind. Ct. App. 2015) (concluding that the double jeopardy clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense).

2025See Moala v. State, 969 N.E.2d 1061, 1065-67 (Ind. Ct. App. 2012) (explaining we vacate the conviction that carries less severe penal consequences when a double jeopardy violation is found).

2020Moala v. State, 969 N.E.2d 1061, 1066 (Ind. Ct. App. 2012); see also Richardson, 717 N.E.2d at 54 (in remedying a double jeopardy violation, the reviewing court should be “mindful of the penal consequences that the trial court found appropriate.”) Because the trial court sentenced Porter to three years for kidnapping by using a vehicle and only one and one-half years for kidnapping causing bodily injury, we remand for the trial court to vacate Porter’s conviction for kidnapping causing bodily injury.

2025Specifically, if a substantive double jeopardy violation exists, I respectfully dissent from the majority’s decision to vacate the conviction for attempted robbery as a level 2 felony without ordering that the conviction be reduced. 9 With respect to the Wadle Court’s statement that “[s]imply reducing Wadle’s conviction to a ‘less serious offense’ threatens to circumvent his constitutional right to ‘clear notice of the charge or charges against which the State summon[ed] him to defend’ at trial.” 151 N.E.3d at 256 8 On appeal, the State asserts that, “even if this Court were to find a double j

2019See id. (providing that the court may remedy a double jeopardy violation by vacating the conviction that has less severe penal consequences).

2017Cf. Alexander v. State, 768 N.E.2d 971, 977-78 (Ind. Ct. App. 2002) (finding a double jeopardy violation after bench trial, where, among other things, the trial court’s statements indicated it had relied on the same Court of Appeals of Indiana | Memorandum Decision 73A01-1702-CR-208 | December 28, 2017 Page 13 of 15 evidence to sustain two convictions).

2017Id.; see also, Arthur v. State, 824 N.E.2d 383, 386 (Ind. Ct. App. 2005) (recognizing that “resisting law 12 Thus, Freeman is incorrect when he contends, citing Alexander v. State, 768 N.E.2d 971 (Ind. Ct. App. 2002), trans. denied, that “a double jeopardy violation occurs if the evidence underlying all of the elements of one offense is the same evidence underlying only one element of the second offense.” Appellant’s Br. at 21 (emphasis original).

2012We agree. “‘Where the conviction of a greater crime cannot be had without conviction of the lesser crime, the double jeopardy clause bars separate conviction and sentencing on the lesser crime when sentencing is imposed on the greater one.’” Mason v. State, 532 N.E.2d 1169, 1172 (Ind. 1089) (quoting Boze v. State, 514 N.E.2d 275, 277 (Ind. 1987)).

2012“Where the conviction of the greater crime cannot be had without conviction of the lesser crime, the double jeopardy clause bars separate conviction and sentencing on the lesser crime when sentencing is imposed on the greater one.” Boze v. State, 514 N.E.2d 275, 277 (Ind. 1987).

2014But Willey’s counsel had the additional benefit of the language in Games v. State, which suggested the existence of a separate double-jeopardy claim based on the Indiana Constitution. 684 N.E.2d 466 , 482 n.7 (Ind. 1997) (“Because the defendant fails to present an argument based upon a separate analysis of the Indiana Constitution, ‘we will only analyze this under federal double jeopardy standards.’”) (quotations omitted, emphasis in original).

2006In Games v. State, 684 N.E.2d 466 (Ind.1997), modified on reh'g, 690 N.E.2d 211 , cert. denied (1998), which was then controlling precedent as to federal double jeopardy claims, our supreme court aligned its analysis of the Fifth Amendment's double jeopardy clause with federal jurisprudence, affirming the rule that where " 'the same act or transaction constitutes a violation of two distinct statutory provisions [and therefore does not constitute a double jeopardy violation], the test to be applied ... is whether each provision requires proof of an additional fact which the other does not."" Id

2017“Where the conviction of a greater crime cannot be had without conviction of the lesser crime, the double jeopardy clause bars separate conviction and sentencing on the lesser crime when sentencing is imposed on the greater one.” Id. at 643-44 (quoting Mason v. State, 532 N.E.2d 1169, 1172 (Ind. 1989)).

2017Appellee’s Br. at 17. [15] “‘Where the conviction of a greater crime cannot be had without conviction of the lesser crime, the double jeopardy clause bars separate conviction and sentencing on the lesser crime when sentencing is imposed on the greater one.’” Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2658| June 26, 2017 Page 8 of 9 Harrison, 901 N.E.2d at 643 -644 (quoting Mason v. State, 532 N.E.2d 1169, 1172 (Ind. 1989), cert. denied).

2020Id. [17] We observe that “a double jeopardy violation occurs when judgments of conviction are entered and cannot be remedied by the practical effect of concurrent sentences or by merger after conviction has been entered.” Payton v. State, 818 N.E.2d 493, 497 (Ind. Ct. App. 2004) (quotation marks omitted), Court of Appeals of Indiana | Memorandum Decision 19A-CR-1456 | March 31, 2020 Page 13 of 14 trans. denied (2005); see also Bass v. State, 75 N.E.3d 1100, 1103 (Ind. Ct. App. 2017) (concluding that merger of convictions was insufficient to remedy double jeopardy violation); West v. State, 22

2016“Indeed, a double jeopardy violation occurs when judgments of conviction are entered and cannot be remedied by the ‘practical effect’ of concurrent sentences or by merger after conviction has been entered.” Id. [8] Here, the trial court entered judgment of conviction against Wilson for both burglary and battery.

2006In Games v. State, 684 N.E.2d 466 (Ind.1997), modified on reh'g, 690 N.E.2d 211 , cert. denied (1998), which was then controlling precedent as to federal double jeopardy claims, our supreme court aligned its analysis of the Fifth Amendment's double jeopardy clause with federal jurisprudence, affirming the rule that where " 'the same act or transaction constitutes a violation of two distinct statutory provisions [and therefore does not constitute a double jeopardy violation], the test to be applied ... is whether each provision requires proof of an additional fact which the other does not."" Id

2006In Games v. State, 684 N.E.2d 466 (Ind.1997), modified on reh'g, 690 N.E.2d 211 , cert. denied (1998), which was then controlling precedent as to federal double jeopardy claims, our supreme court aligned its analysis of the Fifth Amendment's double jeopardy clause with federal jurisprudence, affirming the rule that where " 'the same act or transaction constitutes a violation of two distinct statutory provisions [and therefore does not constitute a double jeopardy violation], the test to be applied ... is whether each provision requires proof of an additional fact which the other does not."" Id