Odom v. State
Odom v. State
Opinion of the Court
OPINION
Cean G. Odom, Sr. (Odom) contends that the State subjected him to double jeopardy by enhancing multiple charges against him based upon a single incident of bodily injury to the victim. Since Odom pleaded guilty to informations which were facially duplicative, he is entitled to challenge his convictions. We reverse.
FACTS
Odom pleaded guilty in 1993 to a robbery
Odom entered into a plea agreement which left determination of his sentence to the judge's discretion. The judge sentenced Odom to twenty-five (25) years on each count under cause number 686, to run concurrent to each other. Similarly, the judge sentenced Odom to twenty-five (25) years on each count under cause number 687, to run concurrent to each other as well. However, the judge ordered that Odom's first twenty-five (25) year sentence be served consecutive to his second twenty-five (25) year sentence, for a total of fifty (50) years.
On January 11, 1994, Odom filed a motion to correct error which the court treated as a petition for post-conviction relief. The court denied Odom's petition without a hearing, finding Odom's guilty pleas to have been counseled and voluntary.
ISSUE
I. Whether Odom's convictions violate the constitutional prohibition against double jeopardy by elevating multiple charges on the basis of a single bodily injury.
DISCUSSION AND DECISION
The state charged Odom by information with robbery, a class A felony, because it "resulted in serious bodily injury to Ophia J. Henning." Record at 14. Count II charged Odom with burglary, a class A felony "resulting in bodily injury to Ophia J. Henning." Record at 16. Odom contends that enhance-ing both charges under cause number 686 to class A felonies due to the serious bodily injury suffered by victim Ms. Henning subjects him to double jeopardy. Moreover, Odom utilizes the same rationale for challenging the elevation of both charges under cause number 687 to class A felonies. Count I under 687 charged Odom with attempted robbery, a class A felony, because it resulted in serious bodily injury to Orda Dawn CGlent-zer. Record at 18. Count II charged Odom with class A burglary based on Ms. Glent-zer's bodily injury. Record at 20.
Our Supreme Court has held that injuries occurring in the "same episode" cannot elevate the class of felony of more than one conviction. See Flowers v. State (1985), Ind., 481 N.E.2d 100, 106, aff'd following remand (1988), Ind., 518 N.E.2d 1096; Beville v.
The state, however, argues that Odom waived any double jeopardy claim by entering a guilty plea and admitting to the allegations. A guilty plea generally waives such a claim. Griffin v. State (1989), Ind., 540 N.E.2d 1187, 1188. A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when an offender seeks to reopen a proceeding after a guilty plea has become final, the inquiry is usually confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative, then the conviction and plea foreclose the collateral attack. Unmited States v. Broce, 488 U.S. 568, 109 S.Ct. 757, 102 LEd.2d 927 (1989).
An exception to the rule barring collateral attack on guilty pleas has been established. Griffin 540 N.E.2d at 1188; United States v. Broce, 488 U.S. at 574-75, 109 S.Ct. at 765; Christie v. State (1989), Ind.App., 536 N.E.2d 531, 533. A defendant who pleaded guilty to charges which were facially duplicative is entitled to challenge the resulting convictions.
Moreover, the factual bases for Odom's pleas are insufficient as a matter of law to sustain his enhanced convictions. Odom told the judge that he struck Ms. Henning on the head with a flashlight, causing injury. Record at 140 and 147. He also informed the judge that he struck Ms. Glent-zer on the head with a toaster, and that she sustained injuries. Record at 148 and 146. The record indicates there was but one vice-tim and one incident of injury in each of cause numbers 686 and 687. Therefore, all four enhanced sentences may not stand. See Abercrombie v. State (1989), Ind.App., 543 N.E.2d 407 (holding that defendant's convictions for class A burglary and class A rob
Next we must determine the appropriate remedy for this double jeopardy violation. Odom claims that his guilty pleas were illusory and illegal because he was charged with four class A felonies when in reality he could be convicted of only two class A felonies. Thus, he argues that his guilty pleas should be vacated. Our standard for reviewing guilty pleas was delineated in White v. State (1986), Ind., 497 N.E.2d 893. See Hinkle v. State (1992), Ind.App., 605 N.E.2d 200, 202, reh'g. denied, trans. denied. A petitioner's conviction will be vacated if the record fails to disclose that the defendant was advised of the right to a jury trial, right of confrontation and right to avoid self-incrimination. An omission of other advice contemplated by .C. § 85-85-1-2 supports reversal only if a petitioner demonstrates that he or she was prejudiced thereby. Id.
When confronted with a proffered guilty plea, the trial court is statutorily required to advise a defendant of the possible maximum and minimum sentences for the offense charged. Since the maximum sentence for a class A felony is fifty (50) years, the court erroneously advised Odom that his maximum possible sentence would be 200 years.
CONCLUSION
Odom's convictions for class A robbery and class A burglary under cause number 686 cannot stand. Upon remand, the post-conviction court is ordered to vacate his conviction and sentence for one of the two enhanced crimes and to re-enter a conviction and resentence for a class B felony.
Nor may Odom's convictions for class A attempted robbery and class A burglary under cause number 687 remain. The post conviction court is ordered to vacate Odom's conviction and sentence for one of these two enhanced crimes as well, and to re-enter a conviction and resentence for a class B felony.
. IC. § 35-42-5-1.
. I.C. § 35-43-2-1.
. LC. § 35-41-5-1 and I.C. § 35-42-5-1.
. Odom failed to raise the double jeopardy argument in his petition for post-conviction relief. However, we address this issue because the double jeopardy violation constitutes fundamental error. Abercrombie v. State (1989), Ind.App., 543 N.E.2d 407, 409.
. We note that our court is divided upon whether to extend the rule of Beville and Flowers to cases elevating offenses committed while armed. The majority of cases addressing this question have refused to find a double jeopardy violation where a defendant commits multiple offenses while armed with a deadly weapon. See Brown v. State (1994), Ind.App., 633 N.E.2d 322, 324, trans. denied; Barker v. State (1993), Ind.App., 622 N.E.2d 1336, 1338; Smith v. State (1993), Ind. App., 611 N.E.2d 144, 148, trans. denied. The fourth district, however, sua sponte applied Be-ville to a case elevating two offenses committed with a deadly weapon. Lyles v. State (1991), Ind.App., 576 N.E.2d 1344, 1352, reh'g. denied, trans. denied.
. On the other hand, a defendant who pleads guilty to two counts with facial allegations of distinct offenses concedes that he committed two separate crimes. United States v. Broce, 488 U.S. at 570-72, 109 S.Ct. at 763.
. IC. § 35-35-1-2 reads in pertinent part: Sec. 2. (a) The court shall not accept a plea of guilty or guilty but mentally ill at the time of the crime without first determining that the defendant: ...
(3) has been informed of the maximum possible sentence and minimum sentence for the crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions, and any possibility of the imposition of consecutive sentences; ...
Concurring Opinion
concurring in result.
I concur in the result reached by the Majority. The question before this court is whether the trial court properly elevated the two separate crimes based on a single instance of bodily injury. On this issue our supreme court is clear; elevation of two crimes based on a single instance of bodily injury is a violation of double jeopardy. Flowers v. State (1985), Ind., 481 N.E.2d 100, 106; Bevill v. State (1985), Ind., 472 N.E.2d 1247, 1254.
However, the Majority's reference to extending the double jeopardy prohibition to the deadly weapon elevating factor is misplaced. See Op. at 380, n. 5
Because the elevation of Odom's crimes to class A felonies was based on a single act of bodily injury, his convictions violate double jeopardy. The Majority properly remanded this case to the post-conviction court for re-sentencing.
. Our supreme court has not determined whether separate offenses may be elevated based on the use of a single deadly weapon. The Majority cites Lyles v. State (1991), Ind.App., 576 N.E.2d 1344, 1352, reh. denied, trans. denied, for the proposition that our appellate courts are divided on this issue. A careful reading of Lyles reveals that it is based upon a misapplication of our supreme court's opinion in Bevill. Lyles, supra at 1352. Subsequent appellate court decisions have consistently refused to extend Flowers and Bevill to the deadly weapon elevator. See, eg., Brown v. State (1994), Ind.App., 633 N.E.2d 322, 324, trans. denied; Barker v. State (1993), Ind. App., 622 NE.2d 1336, 1338; Smith v. State (1993), Ind.App., 611 N.E.2d 144, 148, trans. denied; White v. State (1989), Ind.App., 544 N.E.2d 569, 570, trans. denied.
Reference
- Full Case Name
- Cean G. ODOM, Sr., Appellant-Petitioner, v. STATE of Indiana, Appellee-Plaintiff
- Cited By
- 17 cases
- Status
- Published