Marshall v. Farley
| Decision Date | 19 May 1993 |
| Docket Number | No. S93-31(S).,S93-31(S). |
| Parties | Terry MARSHALL, Petitioner, v. Robert A. FARLEY, and Indiana Attorney General, Respondents. |
| Court | U.S. District Court — Northern District of Indiana |
Terry Marshall, pro se.
Wayne E. Uhl, Indianapolis, IN, for respondents.
On January 21, 1993, pro se petitioner, Terry Marshall, an inmate at the Indiana State Prison, filed a petition seeking relief under 28 U.S.C. § 2254. The response filed by the respondents on March 30, 1993, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The state court record has been filed and examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). On April 16, 1993, the petitioner filed a series of pro se motions.
Initially, this petitioner was charged with six counts of operating a motor vehicle under the influence and resulting in death, namely counts 1, 3, 5, 7, 9 and 11, one for each death, and six counts of reckless homicide, counts 2, 4, 6, 8, 10 and 12. Represented by counsel on January 18, 1989, petitioner entered a plea of guilty to all 12 counts under a plea agreement in which the state prosecutor agreed to make no recommendation. Therefore, the petitioner was convicted in the Grant Circuit Court, Marion, Indiana, with the Honorable Thomas R. Hunt, Judge of the Grant Circuit Court presiding, by virtue of the aforementioned plea of guilty to six counts of operating a motor vehicle with a blood alcohol content (BAC) of .10% or more resulting in death, and six counts of reckless homicide. That plea agreement provided that the maximum sentence for each count was eight years and that the state trial court could order the sentences to be served concurrently or consecutively. The state trial judge held a sentencing hearing on February 10, 1989, and sentenced this petitioner to eight years on each count with counts 1 through 4 to be served consecutively, and counts 5 through 12 to be served concurrently to each other, but consecutively to counts 1 through 4, making a total of 40 years. On October 17, 1989, the petitioner filed for a modification of his sentence and the state trial court granted the petitioner's request. The state trial court vacated 5 of the 6 operating while intoxicated convictions, namely counts 3, 5, 7, 9 and 11, resulting in a reduction of the original 40-year sentence to 32 years.
Subsequently, a direct appeal was taken to the Court of Appeals of Indiana which, in a published opinion written by presiding Judge Shields, reported as Marshall v. State, 563 N.E.2d 1341 (Ind.App.1990), affirmed the five convictions of reckless homicide but remanded with instructions to the state trial court to vacate the conviction and sentence on either operating a motor vehicle with a BAC of .10% or more resulting in death, or the conviction and sentence for reckless homicide arising from death of the same individual. Part I of Judge Shields' opinion required close attention. It is also necessary to look closely at the concurrent and dissenting opinion of Judge Sullivan at pages 1344-1345. The Supreme Court of Indiana denied transfer.
The matter then returned to the state trial court which on June 19, 1991, vacated the judgment of conviction on Count 1 and reaffirmed its original judgment on Counts 2, 4, 6, 8, 10 and 12, resulting in a sentence of 24 years. This petitioner is now serving not a 40-year sentence, but a 24-year sentence as above described. He is serving a 24-year sentence on six counts of reckless homicide. Here, the petitioner raises two basic issues. First, the petitioner contends that his multiple convictions of reckless homicide arising out of a single transaction violates the Double Jeopardy Clause of the Fifth Amendment as incorporated into the Fourteenth Amendment of the Constitution of the United States. Secondly, the petitioner asserts that the state trial court should have permitted him to withdraw his guilty plea.
The petitioner contends here that this most recent version of his sentence violates the Double Jeopardy Clause of the Fifth Amendment. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court outlined the basic purposes of the Double Jeopardy Clause. The Court explained that the Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, or a second prosecution for the same offense after conviction, and finally, it protects against multiple punishments for the same offense. Id. at 717, 89 S.Ct. at 2076. Here, the petitioner is alleging a double jeopardy protection of the third ilk-multiple punishments for the same offense.
In evaluating the petitioner's claim, this court must be respectful of the judges of the Court of Appeals of Indiana in their analysis of the legislative intent as provided in Parts I and II of Judge Shields' opinion at 563 N.E.2d 1341. However, it is the obligation of this court to make a fresh and independent examination of any constitutional issues that are involved under Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Initially, this court notes the handling of this issue by Judge Shields in Marshall v. State, supra, wherein the court explained:
Kelly v. State (1988), Ind.App., 527 N.E.2d 1148, 1154. Following this logic, this court in Kelly concluded the essence of the crime of operating a vehicle while intoxicated resulting in death is the act of operating a motor vehicle while intoxicated; the result of death is a factor enhancing the crime rather than part of the definition of the crime. Thus, this court concluded only one offense of operating a vehicle while intoxicated resulting is death can be punished although multiple deaths occur. This same logic applies to the offense of operating a vehicle with a BAC of .10% or more resulting in death. The legislature's articulated intent is that the crime consists of the prohibited conduct of operating a vehicle with a BAC of .10% or more and the resulting death is a factor enhancing the punishment. Therefore, the guilty plea court properly vacated five (5) of the petitioner's convictions and sentenced for operating a motor vehicle with a BAC of .10% or more.
In contrast, reckless homicide is defined as the reckless killing of another human being. I.C. XX-XX-X-X (1988). In defining the offense, the legislature has articulated its intent that the essence of the crime is the death of another person, i.e., the result is part of the definition of the crime. Accordingly, where several deaths occur in the course of a single incident, the statute has been violated several times over. Therefore, the trial court did not err in refusing to vacate the petitioner's convictions of reckless homicide for each of the five decedents for whom his convictions of operating a motor vehicle with a BAC or 10% or more resulting in death were vacated.
This court also notes that in Kelly v. State, 527 N.E.2d 1148 (Ind.App.2d Dist.1988), the court, again, speaking through Judge Shields, explained:
In crimes such as murder, manslaughter, battery, and reckless homicide, the gravamen of the offense is causing the death or injury of another person, i.e. the result is part of the definition of the crime. Thus, in these offenses where several deaths or injuries occur in the course of a single incident, the offense prohibited by statute has been violated several times over. The separate victims represent different offenses because conduct has been directed at each particular victim.
In addition, this court notes that Judge Shields cites Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), in support of the proposition that the Double Jeopardy Clause's protection against multiple punishments for the same offense is one of ascertaining the intent of the lawmakers in enacting the particular criminal statute. Marshall, 563 N.E.2d at 1342. This court also notes, as did Judge Shields, that Albernaz is dispositive to the analysis of this double jeopardy claim. In Albernaz, supra, the defendants were convicted of conspiracy to import and distribute marijuana and received consecutive sentences on each count. The petitioners were charged and convicted under two separate statutory provisions. The length of each of their combined sentences exceeded the maximum five year sentence which could of been imposed either for a conviction of conspiracy to import or for a conspiracy to distribute. Therefore, the petitioners argued that even if the cumulative punishment was authorized by Congress, such punishment is barred by the Double Jeopardy Clause of the Fifth Amendment.
In evaluating the abovementioned scenario, the Albernaz Court, speaking through Justice Rehnquist, held that whether a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the...
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Johnson v. Singletary
... ... Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) ... Petitioner's case is similar to the case of Marshall v. Farley, which involved an Indiana state prisoner seeking federal habeas 883 F. Supp. 1544 review of his multiple convictions and sentences for ... ...