Valentin v. State

OPINION ON REHEARING

STATON, Judge.

The State petitions for rehearing of Valentin v. State, No. 49A02-9606-PC-376, 683 N.E.2d 648 (Ind.Ct.App. July 18, 1997), contending that a different result is compelled by the Indiana Supreme Court’s recent changes to Indiana’s application of the federal Double Jeopardy Clause delineated in Games v. State, 684 N.E.2d 466 (Ind.1997) and Grinstead v. State, 684 N.E.2d 482 (Ind. 1997).

We deny the petition for rehearing.

*1101Valentin was convicted of Conspiracy to Kidnap, Kidnaping, Felony Murder in the Commission of Kidnaping, and Robbery, reversed in part on direct appeal in Valentin v. State, 567 N.E.2d 792 (Ind.1991). All of Valentin’s convictions stem from hijacking a van in 1986 along with two accomplices. The kidnaped driver of the van was eventually killed. The only act in furtherance of the conspiracy to kidnap was the actual kidnap-ing itself. The trial court merged the conviction for the underlying crime of Kidnaping with the conviction for Felony Murder in the Commission of Kidnaping, but did not merge Valentin’s conviction for Conspiracy to Kidnap with the Kidnaping conviction. After remand from the Indiana Supreme Court, consecutive sentences totaling 110 years were imposed on the convictions of Conspiracy to Kidnap, Felony Murder in the Commission of Kidnaping, and Robbery.

Valentin argued on appeal that because the only act in furtherance of the conspiracy to kidnap was the actual kidnaping, the one act of kidnaping formed the factual basis for both the Conspiracy to Kidnap and the Kid-naping convictions. He argued that his constitutional protection against double jeopardy was violated by his being punished multiple times for a single act due to the trial court’s failure to merge the conspiracy conviction with the conviction for the underlying crime.

Applying Buie v. State, 633 N.E.2d 250, 261 (Ind.1994), reh. denied, we determined that where the only act in furtherance of a conspiracy is the crime itself, double jeopardy bars conviction for both conspiracy and the underlying crime. Therefore we reversed and remanded the ease with instructions to merge the Conspiracy to Kidnap conviction with the Kidnaping conviction, vacating the sentence of thirty years imprisonment for Conspiracy to Kidnap. Valentin’s convictions for Robbery and Felony Murder, with their consecutive sentences of eighty years, were affirmed.

The State seeks rehearing based on the Indiana Supreme Court’s recent rulings in Games v. State, 684 N.E.2d 466 (Ind.1997) and Grinstead v. State, 684 N.E.2d 482. In both Games and Grinstead the Indiana Supreme Court held that its previous interpretations of the federal Double Jeopardy Clause did not comport with federal jurisprudence. Games, 684 N.E.2d at 474; Grinstead, 684 N.E.2d at 485-86. The Indiana Supreme Court held that the proper test to be applied under federal double jeopardy analysis is the two-fold inquiry enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under Blockburger, the court must first determine whether the legislature intended multiple punishments for a single act. Games, 684 N.E.2d at 474. The federal Double Jeopardy Clause allows the legislature to impose multiple punishments for a single act, but requires that the legislative intent to do so be clearly demonstrated. Id.

If it is uncertain whether the legislature intended multiple punishments, then a comparison of the statutory provisions at issue is required. “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Games, 684 N.E.2d at 475 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309). This test limits the court to an examination of the relevant statutes. Grinstead, 684 N.E.2d at 485-86. Prior Indiana cases suggesting that federal law requires a further inquiry into the factual elements of a crime were overruled. Games, 684 N.E.2d at 474; Grinstead, 684 N.E.2d at 485-86.

The State is correct in arguing that the statutory elements of Conspiracy to Kidnap and Kidnaping are different. Conspiracy to Kidnap requires proof of an agreement, but does not require proof of an actual Kidnaping. In contrast, Kidnaping requires proof of an actual kidnaping, but does not require proof of ah agreement. Thus, under the federal test outlined in Games and Grin-stead, double jeopardy would not be violated by sentences imposed on convictions for both crimes.

However, unaddressed by the Indiana Supreme Court in. either Games or Grin-stead is whether Article I, § 14 of the *1102Indiana Constitution provides greater protection than the federal Double Jeopardy Clause. Moreover, the court expressly limited both decisions to a discussion of Indiana’s application of federal law, declining to consider the Indiana Constitution. Games, 684 N.E.2d at 473 n. 7; Grinstead, 684 N.E.2d at 485-86. Indiana’s double jeopardy analysis goes beyond the simple comparison of statutes called for under federal jurisprudence and the Indiana Supreme Court has found violations of Article I, § 14 where a single act constituted the basis for multiple punishments. See Buie v. State, 633 N.E.2d 250, 260-61 (Ind.1994). In Buie, the Indiana Supreme Court held that “where the overt act element of a conspiracy charge is the underlying offense, convictions and sentences for both would constitute multiple punishments for the same offense, which both the federal and Indiana constitutions forbid.” Id. at 261 (emphasis added). Valentin invoked the protections of the Indiana Constitution in his brief and through his reliance on Indiana case law, including Buie. See Appellants Brief at 8-12. Therefore the petition for rehearing is denied.

FRIEDLANDER, J., concurs in result with separate opinion. • HOFFMAN, J., dissents with separate opinion.