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.