FILED
Oct 02 2020, 8:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General
Indianapolis, Indiana Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carl Hill, October 2, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2083
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Barbara Crawford, Judge
Trial Court Cause No.
49G01-1807-F5-21906
Vaidik, Judge.
Case Summary
[1] Carl Hill crashed his SUV into a car carrying two women. Both women died,
and Hill was later convicted of two counts of reckless homicide. He now
appeals, arguing that the two convictions constitute double jeopardy under the
Court of Appeals of Indiana | Opinion 19A-CR-2083 | October 2, 2020 Page 1 of 10
“very same act” rule, which provides that a defendant cannot be convicted and
punished for a crime that consists of the very same act as another crime for
which the defendant has been convicted and punished. Hill acknowledges that
our Supreme Court significantly overhauled Indiana double-jeopardy law in
two opinions issued in August: Wadle v. State and Powell v. State. However, he
asserts that those decisions did not eliminate the “very same act” rule. We hold
that they did and that, even if they had not, Hill’s convictions would not be
double jeopardy. We also reject Hill’s challenge to his sentence but remand for
a minor correction.
Facts and Procedural History
[2] On the afternoon of March 24, 2018, Hill was driving his Chevy Trailblazer
westbound on Crawfordsville Road on the west side of Indianapolis. Despite
the road being wet from snow and the speed limit being forty miles per hour,
Hill was driving over eighty miles per hour. At the large intersection with
Lynhurst Drive, Hill disregarded a red light. Entering the intersection at
approximately eighty-nine miles per hour, Hill hit a car driven by sixty-year-old
Donna Rosebrough, killing her and her eighty-six-year-old mother, Nola
Spears.
[3] The State charged Hill with two counts of reckless homicide, a Level 5 felony,
and with being a habitual offender. A jury found Hill guilty on the count of
reckless homicide relating to Spears but hung on the count relating to
Rosebrough (for reasons not clear from the record). A retrial was set for the
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count relating to Rosebrough, but Hill then agreed to plead guilty to that count
and to admit to being a habitual offender, with the sentence for each capped at
four years. The court sentenced Hill to four years for the reckless homicide of
Rosebrough, six years for the reckless homicide of Spears, and four years for
being a habitual offender, all consecutive, for a total sentence of fourteen years.
[4] Hill now appeals.
Discussion and Decision
[5] Hill raises two issues on appeal. He contends that his two convictions for
reckless homicide constitute double jeopardy and that his six-year sentence for
the reckless homicide of Spears is inappropriate.1
I. Double Jeopardy
[6] Hill first argues that his two convictions for reckless homicide constitute double
jeopardy because they arose from one collision. In August, our Supreme Court
issued two opinions that significantly altered the approach to claims of double
jeopardy that—like the one here—are based on multiple convictions in a single
prosecution. See Wadle v. State, 151 N.E.3d 227 (Ind. 2020); Powell v. State, 151
N.E.3d 256 (Ind. 2020). The Court distinguished these claims of “substantive
double jeopardy” from claims of “procedural double jeopardy”—where a
1
The State does not challenge Hill’s right to press his double-jeopardy claim, even though Hill pled guilty to
the second count of reckless homicide after the jury found him guilty on the other count.
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defendant is charged with the same offense in successive prosecutions.
Previously, claims of substantive double jeopardy could be made under
constitutional tests established in Richardson v. State, 717 N.E.2d 32 (Ind.
1999)—the “statutory elements” test and the “actual evidence” test—or under a
variety of statutory and common-law rules. In Wadle, however, the Court
overruled the Richardson constitutional tests as they apply to claims of
substantive double jeopardy. See Wadle, 151 N.E.3d at 244.2 The Court then set
forth two new tests that start with statutory interpretation but that also
incorporate, where appropriate, the common-law continuous-crime doctrine. Id.
at 247-50; Powell, 151 N.E.3d at 263-65.
[7] The Court explained that claims of substantive double jeopardy “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.” Wadle, 151 N.E.3d at 247; see also Powell, 151 N.E.3d at 263.
Wadle established the test for the latter scenario, Powell the former.
[8] This case implicates the former scenario—a single criminal act violating a single
statute (reckless homicide) but harming multiple victims (Rosebrough and
Spears). In Powell, the Court held that the first step in these situations is to
determine whether the statute “indicates a unit of prosecution.” 151 N.E.3d at
2
The Court reserved judgment on whether to overrule Richardson in the context of “procedural double
jeopardy” (i.e., successive prosecutions). Wadle, 151 N.E.3d at 244 n.15.
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264. If the statute is “conduct-based” (i.e., if the focus of the statute is the
defendant’s actions rather than the consequences of those actions), only one
conviction is permissible, regardless of the number of victims. Id. at 265-66. If
the statute is “result-based” (i.e., if the result is part of the definition of the
crime), multiple convictions are permissible where there are multiple victims.
Id. at 266. If, however, the statute is ambiguous, the court must continue to the
part of the test that incorporates the common-law continuous-crime doctrine
and determine “whether the defendant’s actions are ‘so compressed in terms of
time, place, singleness of purpose, and continuity of action as to constitute a
single transaction.’” Id. at 264 (quoting Walker v. State, 932 N.E.2d 733, 735
(Ind. Ct. App. 2010), reh’g denied).
[9] Hill makes no argument that his two convictions constitute double jeopardy
under the Powell test. The reckless-homicide statute, Indiana Code section 35-
42-1-5, provides that “[a] person who recklessly kills another human being
commits reckless homicide, a Level 5 felony.” This is a result-based statute. It
focuses on the killing of another human being without requiring any particular
conduct by the defendant, other than some reckless act. As such, each death
recklessly caused is a “unit of prosecution,” and multiple convictions are
permissible where multiple people are killed by a single reckless act by the
defendant. See Marshall v. State, 563 N.E.2d 1341, 1343 (Ind. Ct. App. 1990),
trans. denied; Kelly v. State, 527 N.E.2d 1148, 1155 (Ind. Ct. App. 1988), aff’d,
539 N.E.2d 25, 26 (Ind. 1989).
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[10] Instead, Hill contends that Wadle and Powell overruled only the constitutional
tests from Richardson (“statutory elements” and “actual evidence”) and did not
eliminate the “five categories of common-law protections” identified by Justice
Sullivan in his concurring opinion in Richardson, 717 N.E.2d at 55-57 (Sullivan,
J., concurring), and later adopted by the full court in Guyton v. State, 771 N.E.2d
1141, 1143 (Ind. 2002). See Appellant’s Reply Br. p. 5. He then argues that his
convictions run afoul of one of those five protections—the “very same act” rule,
which prohibits “[c]onviction and punishment for a crime which consists of the
very same act as another crime for which the defendant has been convicted and
punished.” Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring). We disagree
on both points.
[11] To begin, the five protections Justice Sullivan identified in his Richardson
concurrence—including the “very same act” rule—did not survive Wadle. In
Part I.A of Wadle, the Court addressed “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.”
151 N.E.3d at 237. That included discussion of both the Richardson majority
and Justice Sullivan’s concurrence. Id. at 243-44. “What we’re left with,” the
Court said, “is a patchwork of conflicting precedent[.]” Id. at 244. Only after
addressing the problems it saw with this established law did the Court “proceed
to articulate an analytical framework in which to resolve claims of substantive
double jeopardy.” Id. at 247. In doing so, the Court emphasized that the cases
cited by Justice Sullivan “may rely on overruled sources of Indiana authority or
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apply analyses under the Fifth Amendment to the United States Constitution”
and have “limited precedential value” because “each substantive double-
jeopardy claim turns on a unique set of facts, which—along with the applicable
statutory offenses—an appellate court reviews de novo.” Id. at 247 n.20.
Reading Wadle in its entirety, along with Powell, it becomes clear that the
Court’s intent was to do away with all existing rules and tests for substantive
double jeopardy—including both the Richardson constitutional tests and Justice
Sullivan’s five protections—and start from scratch with new tests. The only
common-law rule that survived Wadle and Powell is the continuous-crime
doctrine, though only as part of the new tests, not as a separately enforceable
double-jeopardy standard.3
[12] Moreover, even if Wadle had not done away with the “very same act” rule, we
would not find double jeopardy. First, as noted above, it has been held that the
reckless-homicide statute allows for multiple convictions where a single reckless
act kills multiple victims. See Marshall, 563 N.E.2d at 1343; Kelly, 527 N.E.2d at
1155. And in any event, our Supreme Court has made clear that the five
protections outlined in Justice Sullivan’s Richardson concurrence are not
violated where, as here, the convictions at issue involve different victims. See
Bald v. State, 766 N.E.2d 1170, 1172 n.4 (Ind. 2002); see also Bunch v. State, 937
3
Two panels of this Court have held that Wadle and Powell left undisturbed the five protections identified by
Justice Sullivan, including the “very same act” rule. Shepherd v. State, --- N.E.3d ---, No. 20A-CR-134 (Ind.
Ct. App. Sept. 14, 2020), 2020 WL 5509729; Rowland v. State, --- N.E.3d ---, No. 19A-CR-2761 (Ind. Ct. App.
Sept. 8, 2020), 2020 WL 5361075. For the reasons just stated, we respectfully disagree.
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N.E.2d 839, 847 (Ind. Ct. App. 2010) (relying on footnote four in Bald for the
same proposition), trans. denied.
[13] Hill cites Clem v. State, an 1873 opinion in which our Supreme Court stated,
“Where, by the discharge of a fire-arm, or a stroke of the same instrument, an
injury is inflicted upon two or more persons, or their death is produced, there is
but one crime committed.” 42 Ind. 420, 429 (1873). In Powell, the Court
expressly overruled Clem. See Powell, 151 N.E.3d at 266 n.12. But that was
largely a formality, because “more recent precedent” had already rendered Clem
“an outlier.” Id.; see also Atchley v. State, 730 N.E.2d 758, 765 (Ind. Ct. App.
2002) (noting “the extensive body of countervailing law that developed in the
more than 100 years following the Clem decision” and that “the state of double
jeopardy law as of 1999 would undoubtedly have permitted multiple
convictions for murder where one act caused multiple deaths”), trans. denied.
[14] Hill’s two convictions for reckless homicide do not constitute double jeopardy.
II. Sentence
[15] When Hill pled guilty to the reckless homicide of Rosebrough and to being a
habitual offender, he waived the right to appeal his sentences for those counts.
However, he argues that his six-year sentence for the reckless homicide of
Spears is inappropriate and asks us to revise it under Indiana Appellate Rule
7(B), which provides that an appellate court “may revise a sentence authorized
by statute if, after due consideration of the trial court's decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense and the
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character of the offender.” “Whether a sentence is inappropriate ultimately
turns on the culpability of the defendant, the severity of the crime, the damage
done to others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the
judgment of trial courts in sentencing matters, defendants have the burden of
persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d
1041, 1044-45 (Ind. Ct. App. 2016).
[16] Hill’s sentence of six years for the reckless homicide of Spears, a Level 5 felony,
is the maximum possible sentence for that crime. See Ind. Code § 35-50-2-6. He
asks us to reduce the sentence to the advisory term of three years or to order the
six-year term to run concurrent to his four-year term for the reckless homicide
of Rosebrough. We decline to do either.
[17] Hill acknowledges that the facts of this case are “deeply tragic” but argues that
they “are not more egregious than the typical offense of reckless homicide.”
Appellant’s Br. p. 21. We’re skeptical of that claim. Hill not only ran a red light
but did so at nearly fifty miles per hour over the speed limit at a busy
intersection that was wet from snow. But even if Hill is right about the nature of
his offense, his criminal history alone justifies his maximum sentence.
According to the presentence investigation report, between 1993 and 2016 Hill
had at least thirteen felony convictions (at least eleven not including the two
used to support the habitual-offender finding) and over twenty misdemeanor
convictions. These included multiple driving offenses and criminal-recklessness
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convictions. Given this extensive history, we cannot say that Hill’s six-year
sentence for the reckless homicide of Spears is inappropriate.
[18] However, we do remand this matter to the trial court with instructions to attach
the four-year habitual-offender enhancement to the six-year sentence for the
reckless homicide of Spears, for a total sentence of ten years on that count, as
opposed to making the enhancement “consecutive” to the other sentences. See
Ind. Code § 35-50-2-8(j) (“Habitual offender is a status that results in an
enhanced sentence. It is not a separate crime and does not result in a
consecutive sentence. The court shall attach the habitual offender enhancement
to the felony conviction with the highest sentence imposed and specify which
felony count is being enhanced.”).
[19] Affirmed.
Bailey, J., and Weissmann, J., concur.
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