Fuller v. State, 48A02-9309-CR-472

• Decision Date: 29 August 1994
• Docket Number: No. 48A02-9309-CR-472,48A02-9309-CR-472
• Citation: 639 N.E.2d 344
• Parties: Larry Tyrone FULLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 344

639 N.E.2d 344

Larry Tyrone FULLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A02-9309-CR-472.

Court of Appeals of Indiana Second District.

Aug. 29, 1994.

William D. McCarty, Anderson, for appellant.

Pamela Carter, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

KIRSCH, Judge.

Appellant-defendant Larry Tyrone Fuller pled guilty to Murder, ¹ Felony Murder, ² We affirm in part and reverse in part.

Robbery, ³ a Class B felony, and Criminal Confinement, ⁴ a Class B felony. On appeal, Fuller claims that he was improperly sentenced because: 1) double jeopardy bars his convictions and sentences for all but the felony murder charge; and, 2) the trial court impermissibly enhanced his sentence.

FACTS

The facts underlying Fuller's guilty plea are that on August 20, 1990, Fuller entered a liquor store in Anderson, Indiana, while carrying a gun he had taken from his grandfather. Fuller pointed the gun at the store clerk and ordered the clerk to give him all of the money. After the clerk put the money in a bag, he followed Fuller's instructions to move to the back of the store and lie down. As the clerk lay on the floor, Fuller shot him twice in the head. The clerk died as a result.

Fuller left the liquor store and hid the gun he used to shoot the clerk. He then fled the state and went to Mississippi where he was eventually arrested for the present offenses. Fuller pled guilty to the charged offenses of murder, felony murder, robbery, and criminal confinement. The trial court entered judgment of conviction on each count and sentenced Fuller to 50 years for murder, 50 years for felony murder, 20 years for robbery, and 10 years for criminal confinement, all to run concurrently.

DISCUSSION AND DECISION

I. Double Jeopardy

Fuller first contends that his sentence violates the constitutional prohibition against double jeopardy. The parties agree that Fuller cannot be convicted and sentenced for both murder and felony murder because only one killing occurred. ⁵ See Tapia v. State (1991), Ind., 569 N.E.2d 655, 657. The parties disagree, however, on which offense Fuller should be convicted and sentenced. Fuller contends that he should be convicted and sentenced for the felony murder and that the murder should be vacated. As a result, Fuller argues, the robbery, as the felony underlying the felony murder conviction, merges therein. On the other hand, the State argues that Fuller should be convicted and sentenced on the murder charge, that the felony murder conviction should be vacated, and that the robbery should remain. Thus, whether Fuller is convicted and sentenced for murder or for felony murder will determine whether he will escape punishment for the robbery.

Resolution of this issue requires reference to double jeopardy principles. See Swafford v. State (1986), Ind., 498 N.E.2d 1188, 1191 (analysis of whether convictions should be merged must be based on double jeopardy principles). Those principles protect a defendant from re-prosecution for the same offense following an acquittal, re-prosecution for the same offense following a conviction, and from multiple punishment for the same offense. Dawson v. State (1993), Ind.App., 612 N.E.2d 580, 583-84. It is the latter prohibition that is at issue here.

Our supreme court discussed double jeopardy principles as they relate to murder and felony murder in Schiro v. State (1989), Ind., 533 N.E.2d 1201, cert. denied, 493 U.S. 910, 110 S.Ct. 268, 107 L.Ed.2d 218 (1989). In Schiro, the defendant was charged with three counts of murder: a knowing killing in Count I; murder in the course of committing rape in Count II; and murder in the course of committing deviate sexual conduct in Count III. Id. at 1208 (DeBruler, J., dissenting). The jury returned a guilty verdict only as to Count II felony murder and was silent as to the remaining two counts. Id. The trial court imposed the death penalty based upon the aggravating circumstance that the murder was committed intentionally. Our supreme court held that double jeopardy did not prevent the trial court from relying on the intentional nature of the killing as the basis for imposing the death penalty. The court explained that:

"One can be found guilty of felony murder where the intention was to commit the underlying felony without necessarily intending to commit the murder. It does not follow, however, that one convicted of felony murder cannot be shown to have intentionally killed the victim while perpetrating the felony.... The crimes of murder and felony murder each contain elements different from the other but are equal in rank. One is not an included offense of the other...."

Id. at 1207-08. Thus, the crimes of murder and felony murder are statutorily distinct offenses.

It is the fact that Fuller committed only one killing that makes felony murder and murder the same offense for purposes of double jeopardy. See Franks v. State (1975), 262 Ind. 649, 656, 323 N.E.2d 221, 225. This being so, it must be determined which conviction and sentence will be vacated and which conviction and sentence will remain.

Our task is complicated by the divergence of authority addressing the proper method of convicting and sentencing for murder and felony murder. In one instance, our supreme court held that "[t]he conviction for murder merges with the conviction for felony murder[,]" and directed the trial court to vacate the murder conviction, leaving the felony murder conviction remaining. Martinez Chavez v. State (1989), Ind., 534 N.E.2d 731, 739; see also Rondon v. State (1989), Ind., 534 N.E.2d 719 (defendant convicted of felony murder and murder; murder conviction ordered expunged "the same having merged" with the felony murder conviction), cert. denied, 493 U.S. 969, 110 S.Ct. 418, 107 L.Ed.2d 383 (1989). Both Martinez Chavez and Rondon relied upon Sandlin v. State (1984), Ind., 461 N.E.2d 1116, in which our supreme court took the opposite approach and ordered that the defendant's two convictions for felony murder be vacated while the murder conviction remained. See also James v. State (1980), 274 Ind. 304, 411 N.E.2d 618 (defendant convicted of murder, murder in the perpetration of a robbery, and murder in the perpetration of a kidnapping; latter two offenses ordered vacated). In yet another instance, our supreme court has merely remanded the matter without specifying the manner in which the offenses were to be treated. See Tapia, 569 N.E.2d at 658 (trial court directed to "merge the convictions of murder and felony murder and to impose only one sentence."); Franks, 262 Ind. at 658, 323 N.E.2d at 226 (defendant convicted of felony murder and pre-meditated murder, and received a life sentence on each; matter remanded "with instructions to vacate one of the life sentences.").

Unlike the present case, none of the foregoing cases involved convictions for felonies in addition to the murder convictions. Thus, there was no consequence flowing from whether the defendant was convicted and sentenced on the murder or on the felony murder. In Pointon v. State (1980), 274 Ind. 44, 408 N.E.2d 1255, however, the defendant was charged, convicted, and sentenced for first degree murder, felony murder, and the additional felony of rape. Finding that the defendant could not be sentenced for both counts of murder based upon the homicide of one individual, our supreme court ordered that the judgment and sentence for felony murder be vacated, leaving the murder and rape convictions and sentences remaining. See also Hicks v. State (1989), Ind., 544 N.E.2d 500 (defendant convicted of murder, felony murder, robbery, burglary, dealing in a sawed off shotgun, and resisting law enforcement; felony murder conviction ordered vacated) and Johnson v. State (1987), Ind., 510 N.E.2d 174 (defendant convicted of murder, felony murder, commission of a felony while armed, and conspiracy to commit a felony) reh'g granted, 516 N.E.2d 1053 (felony murder conviction ordered vacated).

Pointon, Hicks, and Johnson, guide our decision today. We hold that when a defendant stands convicted of murder, felony murder, and an additional felony, the felony murder should be vacated and the murder conviction should remain. To hold otherwise would permit a person who commits an intentional murder while committing another felony to use the felony murder rule to escape punishment for the underlying felony. This simply cannot be. When a person intentionally murders a human being while committing another felony, punishment for both the killing and the other felony does not violate double jeopardy principles.

Accordingly, Fuller's conviction and sentence for felony murder must be vacated. Given this conclusion, Fuller's contention that the robbery should merge into the felony murder must necessarily fail.

Fuller next contends that his confinement conviction should merge into his robbery conviction pursuant to this court's decision in Ryle v. State (1990), Ind.App., 549 N.E.2d 81, trans. denied. Fuller is correct.

A person commits criminal confinement when he:

"[K]nowingly or intentionally:

(1) Confines another person without the other person's consent; or

(2) Removes another person, by fraud, enticement, force, or threat of force, from one (1) place to another[.]"

IC 35-42-3-3 (1992 Supp.). In Ryle, Judge Shields explained:

"The elements of robbery ... are knowingly or intentionally taking property from the presence of another person (1) by using or threatening the use of force on any person, or (2) by putting any person in fear. IC 35-42-5-1 (1988). Necessarily or inherently included offenses are those which must first be committed in order to commit the greater offense. If property is taken from a person or from a person's presence by force, threat of force, or by placing the person in fear--i.e., where robbery is established--the element of force, whether actual, threatened, or...