Carter v. State

ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Joe Keith Lewis                   Karen M. Freeman-Wilson
Marion, Indiana                   Attorney General of Indiana

                                        Timothy W. Beam
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



DARNELL CARTER                          )
                                        )
      Appellant (Defendant Below),      )
                                        )  No. 79S02-0107-CR-327
            v.                          )  in the Supreme Court
                                        )
STATE OF INDIANA,                       )  No. 79A02-9910-CR-738
                                        )  in the Court of Appeals
      Appellee (Plaintiff Below). )








                   APPEAL FROM THE TIPPECANOE COUNTY COURT
                    The Honorable Gregory J. Donat, Judge
                         Cause No. 79E01-9807-DF-248



                                July 17, 2001

SHEPARD, Chief Justice.


      Appellant Darnell Carter faced  multiple  charges  of  drunk  driving.
These led to verdicts of guilty on all counts and a judgment  of  conviction
for the crime of operating  a  vehicle  while  intoxicated,  as  a  class  D
felony.  The Court  of  Appeals  rejected  Carter’s  claims  of  error,  but
directed the trial judge to vacate the other two guilty findings.  This  was
unnecessary.







                        Facts and Procedural History



      The State charged Carter in three separate counts:   (1)  operating  a
vehicle with at least ten-hundredths percent (0.10%) of  alcohol  by  weight
in grams in one hundred (100) milliliters of the person’s blood, a  class  C
misdemeanor;[1] (2)  operating  a  vehicle  while  intoxicated,  a  class  A
misdemeanor;[2] and  (3)  operating  a  vehicle  while  intoxicated  with  a
previous  conviction  of  operating  while  intoxicated  within   the   five
immediately preceding years, a class D felony.[3]


      A jury found Carter guilty of Counts I and II.[4]  Carter then  waived
his right to a jury trial on the third charge.  The court conducted a  bench
trial and found Carter guilty on Count III.


      After a sentencing hearing, the court entered a judgment of conviction
and sentence for Count III, the class D felony, only.[5]


      The Court of Appeals correctly rejected all of the contentions  Carter
made on appeal.  Carter v. State, 734 N.E.2d 600 (Ind. Ct. App.  2000).   We
summarily affirm its  resolution  of  these  issues.   Ind.  Appellate  Rule
58(A)(2).  The court then said:
      As a final point, although not raised by the  appellant,  we  conclude
      sua sponte that both the operating while intoxicated conviction  as  a
      class A misdemeanor and the  operating  while  intoxicated  conviction
      with having a previous operating while intoxicated  conviction  within
      the past five years as a class D felony may not stand.   The  class  A
      misdemeanor conviction is subsumed by  the  enhanced  class  D  felony
      conviction.

      Judgment affirmed in part and reversed in part  and  remanded  to  the
      trial court with  instructions  to  vacate  the  class  A  misdemeanor
      conviction.

Carter, 734 N.E.2d at 605.  It thus followed the practice adopted in  Redman
v. State, 679 N.E.2d 927, 932 (Ind. Ct. App. 1997), in which  the  Court  of
Appeals deemed it necessary to order vacating a lesser included  offense  on
which there was no judgment and no sentence, while expressing  concern  that
such a practice put the trial courts in a difficult  position.   We  granted
transfer to relieve them of this burden.



                           What Is A “Conviction”?


      The word  “conviction”  is  not  a  term  of  art,  and  its  multiple
definitions create some confusion.  Black’s  Law  Dictionary  335  (7th  ed.
1999) offers two legal definitions.  The first is: “The act  or  process  of
judicially finding someone guilty of a  crime;  the  state  of  having  been
proved guilty.”  Id. (emphasis added).  The second is: “The judgment (as  by
a jury verdict) that a person is guilty of a crime.”  Id.


      Courts, including  this  one,  commonly  say  “a  jury  convicted  the
defendant of . . . .”  See, e.g., Hulfachor v. State, 735  N.E.2d  214,  216
(Ind. 2000).  This is a true statement,  using  Black’s  second  definition.



      This periodic mingling of terms, however, should not obscure the  fact
that a guilty verdict and a judgment of conviction are two rather  different
things.


      It is highly ordinary that a jury (or, as with Count III here, a judge
in a bench trial) may hear evidence about multiple counts  during  a  single
trial and determine guilt on each of them.  These findings of guilt  do  not
mean that a defendant has faced multiple sentences or multiple judgments  of
conviction.  Asking the jury to deliberate on  all  potential  charges  that
are supported by the evidence is  a  sensible  and  efficient  practice.   A
verdict of guilty can certainly be a significant legal event, but only if  a
court later enters judgment on it.  A  verdict  on  which  the  trial  court
enters judgment notwithstanding the verdict,[6] for example,  is  a  victory
for the defendant.  Similarly, a verdict of guilt on which  no  judgment  or
sentence  has  been  entered  would  not  constitute   legal   grounds   for
incarceration.


      We treat the judgments and sentences entered by courts in a  different
way.


      When two or more of the charges constitute the same offense for double
jeopardy purposes, for example, the defendant may not  be  punished  on  all
the charges.  See, e.g., Duncan v. State, 735 N.E.2d  211,  212,  214  (Ind.
2000)(jury found defendant guilty of murder,  felony  murder,  robbery,  and
auto theft, but  court  properly  sentenced  for  murder  and  robbery  only
because the other two charges were lesser included offenses).  This is  true
when a court enters convictions  and  sentences  on  a  greater  and  lesser
offense.  Mason v. State, 532 N.E.2d 1169 (Ind.  1989),  cert.  denied,  490
U.S. 1049 (1989).


      Indeed, we have regarded a  judgment  of  conviction  as  constituting
punishment even if the defendant avoids imprisonment.   Here,  for  example,
the fact of Carter’s prior  OWI  conviction  justified  enhancement  of  the
current charge from misdemeanor to felony status, without regard to  whether
any sentence was imposed for that prior  conviction.   See  also  Patton  v.
State, 242 Ind. 477, 488, 179 N.E.2d 867, 872 (1962)(“A  sentence,  although
suspended, places some limitation upon the conduct  of  the  party  involved
and, to this extent, it is a penalty imposed.”).


      Our statutes likewise suggest that a verdict by a jury and a  judgment
issued by a court  are  two  rather  different  acts  from  which  different
consequences  flow.   They  describe  a  two-tier  process  of  verdicts  or
findings that are usually, but not invariably, followed  by  conviction  and
sentencing.


      Indiana  Code  Ann.  Title  35,  article  38,  “Proceedings  Following
Dismissal, Verdict, or Finding,” sets  forth  what  follows  the  jury’s  or
judge’s factual findings.  Chapter 1, “Entry of  Judgment  and  Sentencing,”
reads in part:  “After a verdict, finding, or  plea  of  guilty,  if  a  new
trial is not granted, the court  shall  enter  a  judgment  of  conviction.”
Ind. Code Ann. § 35-38-1-1(a) (West 2000).[7]    Indiana Code Ann. §  35-38-
1-6 (West 2000) qualifies  this  mandate:   “Whenever  (1)  a  defendant  is
charged with an offense and an included offense in separate counts; and  (2)
the defendant is found guilty of both counts; judgment and sentence may  not
be entered against the defendant for the included offense.”







                                 Conclusion



      In short, a jury verdict on which the court  did  not  enter  judgment
for one reason or another (merger, double jeopardy, etc.) is  unproblematic,
as we recently observed in the double jeopardy  context.[8]   Kilpatrick  v.
State, 746 N.E.2d 52, 60 (Ind. Ct. App. 2001) (“We have held  that  where  a
trial court merges some offenses into others  for  purposes  of  sentencing,
there is no double jeopardy violation.”).   Accord  Kennedy  v.  State,  674
N.E.2d 966 (Ind. 1996) (merging felony murder into murder does  not  prevent
separate sentence for robbery).  There is no particular reason  to  order  a
trial court to vacate the jury “conviction”  on,  say,  counts  one  or  two
where the trial court entered a judgment only on count three.[9]



      We grant transfer and reverse the order to vacate the class A
misdemeanor conviction.  The judgment of the trial court is affirmed.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Ind. Code Ann. § 9-30-5-1 (West 1998)(Count I).
[2] Ind. Code Ann. § 9-30-5-2 (West 1998)(Count II).
[3] Ind. Code Ann. § 9-30-5-3 (West 1998)(Count III).
[4] The court bifurcated the proceeding so that the jury evaluated Counts I
and II without receiving potentially prejudicial information about Carter’s
prior OWI conviction.
[5] Specifically, the judge said:  “So the Court is going to enter a
judgment of conviction that the defendant, a male, 29 years of age, is
guilty of operating while intoxicated with a prior conviction, a Class D
felony, as charged in Count 3.”  (R. at 284.)
[6] Indiana Trial Rules 50 and 59(J)(7) empower trial courts to enter
judgment notwithstanding jury verdicts that are not supported by sufficient
evidence.  See Stewart v. State, 688 N.E.2d 1254, 1258 (Ind. 1997).
[7] See also Ind. Code Ann. § 35-38-3-2(a) (West 2000)(“When a convicted
person is sentenced to imprisonment, the court shall, without delay,
certify, under the seal of the court, copies of the judgment of conviction
and sentence to the receiving authority.”)  A jury verdict is insufficient
to authorize incarceration; only a judicial order will do.
[8] Courts commonly refer to lesser included offenses being “merged with”
or “subsumed by/under” greater offenses.  See, e.g., Brown v. State, 650
N.E.2d 304, 305, 307 (Ind. 1995).  Whatever language a court uses, the
principle remains the same:  a claim of multiple punishment for the same
offense requires multiple judgments of conviction, entered by the trial
court.
[9] Indeed, more harm than good may result if a trial court “vacates” a
jury verdict not reduced to judgment.  If a conviction for a greater
offense is reversed for reasons specific to the incremental elements
between the greater and a lesser included offense, a conviction for the
lesser offense may remain valid.  A defendant’s claim that a “vacated”
verdict is no longer viable may not succeed (see, e.g., Taflinger v. State,
698 N.E.2d 325 (Ind. Ct. App. 1998)), but the more prudent course is to
avoid the argument.