ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lorinda Meier Youngcourt Steve Carter
Huron, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
In the
Indiana Supreme Court
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No. 15S01-0611-CR-468
MICHAEL GREEN,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Dearborn Superior Court, No. 15D01-0208-FA-004
The Honorable G. Michael Witte, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 15A01-0508-CR-373
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November 15, 2006
Shepard, Chief Justice.
Trial courts sometimes receive a plea of guilty or a finding of guilt on multiple counts,
one of which represents a lesser-included offense of some other count. Where the court merges
the lesser-included offense without imposing judgment, there is no need to remand on appeal to
“vacate.”
Michael Green pled guilty to four counts – attempted robbery, conspiracy to commit
robbery, burglary, and conspiracy to commit burglary – for his role in the August 5, 2002,
burglary and attack of Mr. and Mrs. Pohlgeers. At the sentencing hearing, the judge declared
that the attempted robbery and conspiracy to commit robbery counts “merge[d] . . . so that only
one sentence can be imposed between the two counts.” (Tr. at 166.) On appeal, the Court of
Appeals declared this merger inadequate and ordered the trial court to “vacate the robbery
conspiracy conviction.” Green v. State, 850 N.E.2d 977, 980 n.5 (Ind. Ct. App. 2006). We grant
transfer to correct this appellate mistake.
To be sure, a defendant’s constitutional rights are violated when a court enters judgment
twice for the same offense, but not when a defendant is simply found guilty of a particular count.
See, e.g., Carter v. State, 750 N.E.2d 778, 780 (Ind. 2001) (“It is highly ordinary that a jury . . .
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.”); Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996) (“For
purposes of double jeopardy, this court has long held that a trial court may not convict and
sentence a defendant for both murder and felony murder where only one murder occurs.”).
On the other hand, 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. Carter, 750 N.E.2d at 781. See also Laux v. State, 821 N.E.2d 816, 820 (Ind. 2005).
In Laux, we disapproved those cases which “indicate[] that vacating a jury verdict is the
appropriate remedy rather than merger and entering a judgment of conviction only on the merged
count.” Id. at 820 n.4. In the present case, the Court of Appeals relied on Kochersperger v.
State, 725 N.E.2d 918 (Ind. Ct. App. 2000), and Jones v. State, 807 N.E.2d 58 (Ind. Ct. App.
2004), transfer denied. On the point at issue here, these opinions likewise are disapproved.
In this instance, the record does not actually indicate a formal judgment of conviction for
any of the offenses. The judge’s statement at sentencing, the Abstract of Judgment, and the
Order on Plea or Finding of Guilt and Sentence all demonstrate that the conspiracy to commit
robbery charge was merged, rather than reduced to judgment, and that Green was never
sentenced for that count. (Tr. at 164-68; Appellant’s App. at 428, 432.) Thus, “[t]here is no
particular reason to order a trial court to vacate” a guilty plea “where the trial court entered a
judgment” on only the attempted robbery. Carter, 750 N.E.2d at 781. We thus vacate the Court
of Appeals’ order remanding this matter to the trial court.
The Court of Appeals appropriately disposed of the remainder of the issues, and we
summarily affirm their disposition. Ind. Appellate Rule 58(A). The trial court is affirmed.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.