IN THE INDIANA SUPREME COURT
HANCOCK, Joseph N., ) Supreme Court
appellant, ) cause no. 47S01-0203-CR-190
v. )
) Court of Appeals
STATE OF INDIANA, ) cause no. 47A01-0102-CR-63
appellee. )
) Trial Court
) cause no. 47C01-9908-CF-398
PUBLISHED ORDER
Following a jury trial, judgment was entered against the appellant
herein, Joseph N. Hancock, on convictions of Rape as a Class A felony and
Criminal Deviate Conduct as a Class A felony. Appellant was sentenced to
fifty years on the Rape charge, and fifty years on the Criminal Deviate
Conduct charge, the sentences to be served consecutively. The Court of
Appeals affirmed. Hancock v. State, 758 N.E.2d 995 (Ind. Ct. App. 2001).
The appellant filed, by counsel, a petition seeking transfer of
jurisdiction pursuant to Appellate Rules 56(B) and 57.
Rape is generally a Class B felony that, under certain circumstances,
can be elevated to Class A status. See Ind. Code § 35-42-4-1. In this
instance, appellant was convicted and sentenced for Rape as a Class A
felony because the offense was facilitated by drugging the victim without
the victim’s knowledge. See Ind. Code § 35-42-4-1(b)(4). Criminal Deviate
Conduct is also generally a Class B felony that may be elevated, and
appellant similarly received a Class A felony conviction and sentence,
again because the offense was facilitated by the same drugging of the
victim without the victim’s knowledge. See Ind. Code § 35-42-4-2.
We have held that where a felony is elevated in class based on the
same statutory factor and factual basis that was used to elevate another
felony in class, the two cannot stand together and one must be reduced in
class. See Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002).
Pursuant to Appellate Rule 58, we grant transfer of jurisdiction and
direct that appellant’s Criminal Deviate Conduct conviction be reduced to a
class B felony and that he be re-sentenced accordingly. In all other
respects, the decision of the Court of Appeals is summarily affirmed. See
Ind. Appellate Rule 58(A)(2). The cause is remanded to the trial court for
proceedings consistent with this mandate.
The Clerk is directed to send a copy of this order to Hon. Richard D.
McIntyre, Judge of the Lawrence Circuit Court and to all counsel of record.
Done at Indianapolis, Indiana this 22nd day of March, 2002.
s/Randall T. Shepard
______________________________
Randall T. Shepard
Chief Justice of Indiana
All Justices concur.