MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 22 2019, 9:45 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Bates Curtis T. Hill, Jr.
Schererville, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian L. Paquette, May 22, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3072
v. Appeal from the
Pike Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Jeffrey L. Biesterveld, Judge
Trial Court Cause No.
63C01-1602-F3-73
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3072 | May 22, 2019 Page 1 of 9
Case Summary
[1] Brian Paquette appeals the trial court’s judgment on remand following our
Supreme Court’s decision in Paquette v. State, 101 N.E.3d 234 (Ind. 2018). We
agree with Paquette that some of the convictions entered on remand cannot
stand, so we return this matter to the trial court for the entry of a revised
sentencing order and abstract of judgment.
Facts and Procedural History
[2] The facts of this case are detailed in our Supreme Court’s opinion. Paquette, 101
N.E.3d at 235-36. We summarize them as follows. On the night of February
12, 2016, Paquette was hallucinating after using methamphetamine and was
driving northbound in the southbound lanes of I-69 near Petersburg. When
Indiana State Trooper James Manning tried to stop him, Paquette crossed the
median and began driving southbound in the northbound lanes. He collided
with a car occupied by Stephanie Molinet and Autumn Kapperman and then
with an SUV occupied by Jason and Samantha Lowe. Molinet, Kapperman
(who was pregnant), and Jason Lowe were killed, and Samantha Lowe was
seriously injured.
[3] The State filed twelve criminal charges against Paquette. As to the three
deceased victims, the State charged Paquette with three counts of resisting law
enforcement by fleeing in a vehicle causing death (“resisting causing death”), a
Level 3 felony (Counts I-III); three counts of operating a vehicle with
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methamphetamine in his blood causing death (“operating causing death”), a
Level 4 felony (Counts IV-VI); and three counts of reckless homicide, a Level 5
felony (Counts VII-IX). Counts I, IV, and VII concerned Jason Lowe, Counts
II, V, and VIII concerned Molinet, and Counts III, VI, and IX concerned
Kapperman. Paquette was also charged with operating a vehicle with
methamphetamine in his blood causing serious bodily injury (“operating
causing serious bodily injury”), a Level 6 felony, with regard to Samantha
Lowe (Count XI) and possession of methamphetamine, a Level 6 felony (Count
XII).1 Paquette agreed to plead guilty on all of these charges but reserved the
right to ask the court to enter a resisting-causing-death conviction as to only one
of the deceased victims, with lesser convictions for the other two, on the theory
that he engaged in only one act of resisting for purposes of Indiana’s resisting-
law-enforcement statute, Indiana Code section 35-44.1-3-1. The parties briefed
the issue, and the trial court ruled that three separate convictions and sentences
are permissible. However, the court also ruled that Paquette would have the
right to appeal the issue.
[4] The court entered convictions on all three counts of resisting causing death
(Counts I-III) and on the charge of operating causing serious bodily injury
(Count XI). The court merged the seven remaining counts (three counts of
1
In Count X, the State charged Paquette with involuntary manslaughter based on the fact that Kapperman
was pregnant at the time of the collision and her fetus did not survive. That charge was dismissed after
Kapperman’s doctor opined that the fetus had not “attained viability,” as required under the involuntary-
manslaughter statute in effect in February 2016. See Ind. Code § 35-42-1-4 (2014).
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operating causing death, three counts of reckless homicide, and possession of
methamphetamine) into those four counts. The court imposed the maximum
sentence of sixteen years for each count of resisting causing death and the
maximum sentence of two-and-a-half years for operating causing serious bodily
injury, all consecutive, for a total of fifty-and-a-half years.
[5] On appeal, this Court agreed with Paquette that his single act of resisting could
give rise to only one conviction for resisting causing death under Section 35-
44.1-3-1, even though he caused multiple deaths. Paquette v. State, 79 N.E.3d
932 (Ind. Ct. App. 2017). As such, we directed the trial court to enter
convictions and sentences for the lesser offense of operating causing death (a
Level 4 felony) as to “two of the three deceased victims” (since the statute for
that offense, Indiana Code section 9-30-5-5, specifically allows for multiple
convictions when multiple deaths are caused), which would have left in place
one conviction and sentence for the more serious offense of resisting causing
death (a Level 3 felony). Id. at 936. Our Supreme Court granted the State’s
petition to transfer on the resisting-law-enforcement issue but reached the same
conclusion we had: that a single act of resisting can support only one conviction
for resisting law enforcement. Paquette, 101 N.E.3d at 241. However, the
Court’s remand instructions differed slightly from ours. It directed the trial
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court to enter convictions under the operating-causing-death statute for “all” of
the deceased victims, not just two of the three. Id. at 242.2
[6] On remand, the trial court read our Supreme Court’s opinion to mean that
Paquette could be convicted of one count of resisting causing death and all
three counts of operating causing death. In an attempt to get to one conviction
and sentence for resisting causing death, the trial court initially entered separate
convictions and sentences—this time twelve years—on all three counts of
resisting-causing-death but stated that the second and third counts “shall
merge” into the first count. Appellant’s App. Vol. II p. 10. And as directed by
the Supreme Court, the trial court entered convictions on all three operating-
causing-death counts (Counts IV-VI). It imposed a sentence of twelve years for
each of those three counts. The court ordered the four twelve-year sentences
(one for resisting causing death, three for operating causing death) to run
consecutive to one another and to the two-and-a-half-year sentence for
operating causing serious bodily injury (Count XI), resulting in the same
aggregate sentence as before: fifty-and-a-half years. The court also entered a
conviction and a two-and-a-half-year sentence for possession of
2
During its 2019 session, the General Assembly responded to the Supreme Court’s decision by amending
Indiana Code section 35-44.1-3-1 to allow for multiple resisting convictions based on a single act of resisting
when the defendant injures or kills multiple victims. See P.L. 184-2019 § 12.
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methamphetamine (Count XII) but ordered that sentence to run concurrent
with the other sentences.3
[7] Paquette now appeals.
Discussion and Decision
[8] Paquette raises three issues on appeal. First, he contends that the trial court
erred by “merging” the second and third resisting-causing-death convictions
and sentences with the first instead of vacating them. Second, he argues that
the trial court erred by entering convictions on both Count I (resisting causing
death) and Count IV (operating causing death) because both charges were based
on the death of a single victim, Jason Lowe. Third, he asserts that his sentence
of fifty-and-a-half years is inappropriate in light of the nature of his offenses and
his character.
[9] The State concedes error on the first issue. “Merger” does not avoid a double-
jeopardy problem when convictions and sentences are entered on all the counts
in question, as occurred here with the three resisting-causing-death counts. See
Green v. State, 856 N.E.2d 703, 704 (Ind. 2006); Carter v. State, 750 N.E.2d 778,
781 (Ind. 2001). We therefore remand this matter to the trial court for the entry
of a revised sentencing order and abstract of judgment indicating that no
3
It is unclear why the trial court entered a separate conviction and sentence for possession of
methamphetamine on remand when it did not do so originally, but Paquette does not challenge that aspect of
the trial court’s revised judgment.
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separate convictions or sentences have been entered on the second and third
counts of resisting causing death (Counts and III).
[10] The State also concedes error on the second issue. When a defendant’s
conviction for one crime is enhanced for causing particular additional harm,
that harm cannot also be used as an enhancement of a separate crime. See, e.g.,
Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002); Deloney v. State, 938 N.E.2d 724,
731 (Ind. Ct. App. 2010), reh’g denied, trans. denied. Here, Count I (resisting
causing death) and Count IV (operating causing death) were both elevated
based on the death of Jason Lowe, so Paquette cannot be convicted on both
counts.
[11] The parties tell us that the way to remedy this problem is to vacate the
operating-causing-death conviction relating to Jason Lowe, leaving the more
serious resisting-causing-death conviction in place. In its opinion, the Supreme
Court did say, “Accordingly, we reverse the trial court as to two of the three
convictions for felony resisting law enforcement.” Paquette, 101 N.E.3d at 242
(emphasis added). That sentence implies that convictions for the lesser offense
of operating causing death should be entered as to only two of the three
deceased victims, as this Court said in its original opinion. See Paquette, 79
N.E.3d at 936. However, in the very next sentence of its opinion, the Supreme
Court specifically directed the trial court to enter convictions under the
operating-causing-death statute “for all victims.” Paquette, 101 N.E.3d at 242
(emphasis added). Consistent with that direction, we will not instruct the trial
court to vacate any of the operating-causing-death convictions.
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[12] Therefore, to avoid a double-jeopardy problem, Paquette’s conviction for
resisting causing the death of Jason Lowe must be vacated. However, there is
no reason Paquette cannot be convicted of a count of resisting law enforcement
that is not enhanced for causing a death. As such, we instruct the trial court to
enter a conviction under Count I for the reduced offense of resisting law
enforcement by fleeing in a vehicle (a Level 6 felony, Ind. Code § 35-44.1-3-
1(b)(1)(A)) with a sentence of two-and-a-half years, to run consecutive to his
other sentences. The sentencing order and abstract of judgment must be revised
accordingly. This change will result in a total sentence of forty-one years: two-
and-a-half years on Count I, twelve years each on Counts IV-VI, and two-and-
a-half years on Count XI, all consecutive, along with a concurrent sentence of
two-and-a-half years on Count XII (possession of meth).
[13] To the extent Paquette would contend that a forty-one-year sentence is
inappropriate in this case, we disagree. We acknowledge that Paquette had no
criminal history, that he accepted responsibility by pleading guilty, and that this
incident occurred shortly after the death of his father. However, the trial court,
after watching and listening to Paquette at the sentencing hearing, concluded
that Paquette “lacks remorse for his actions.” Appellant’s App. Vol. II p. 8.
There was also evidence presented that after the crash Paquette talked with his
mother about depleting his assets “so that the families wouldn’t take it[.]” Tr.
Vol. II p. 191. Finally, on at least two occasions in the weeks leading up to this
incident Paquette drove while hallucinating on meth. Exs. 2, 20. He went to
the hospital both times but rejected offers for long-term treatment. Exs. 2, 16.
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In short, Paquette was a ticking time bomb, and he knew it. Given this
evidence and the sheer carnage Paquette caused, we cannot say that a sentence
of forty-one years is an “outlier” in need of revision under Appellate Rule 7(B).
See Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008) (“The principal role of
appellate review should be to attempt to leaven the outliers, and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each
case.”).
[14] Reversed in part and remanded.
Kirsch, J., and Altice, J., concur.
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