Odom v. State

• Decision Date: 07 March 1995
• Docket Number: No. 02A03-9405-PC-181,02A03-9405-PC-181
• Parties: Cean G. ODOM, Sr., Appellant-Petitioner, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 377

647 N.E.2d 377 Cean G. ODOM, Sr., Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Plaintiff. No. 02A03-9405-PC-181. Court of Appeals of Indiana,
Third District. March 7, 1995.
Transfer Denied May 19, 1995.

Page 379

Susan K. Carpenter, Public Defender, Stephen T. Owens, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION

GARRARD, Judge.

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 ¹ and burglary ² committed on November 5, 1992. Both charges under cause number 02D04-9212-CF-686 (hereinafter "686") were enhanced to class A felonies based upon the serious bodily injury sustained by the elderly victim, Ophia Henning. At the same time Odom also pleaded guilty to charges of attempted robbery ³ and burglary under cause number 02D04-9212-CF-687 (hereinafter "687") which he admitted committing on November 9, 1992. The charges under cause number 687 were similarly enhanced to class A felonies due to the serious bodily injury suffered by the elderly victim, Orda Dawn Glentzer.

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. ⁴

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 enhancing 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 Glentzer. Record at 18. Count II charged Odom with class A burglary based on Ms. Glentzer'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.

Page 380

State (1985), Ind., 472 N.E.2d 1247, 1254, reh'g. denied. ⁵ In Flowers, a jury convicted the defendant of attempted murder, burglary, attempted rape, and attempted robbery. The multiple stabbing and striking of the victim constituted the sole basis upon which the defendant's sentences for burglary, attempted rape and attempted robbery were elevated from class B or C felonies to class A felonies. The court held these convictions could not stand since the attempted murder conviction was based upon injuries from the same stabbing episode. Flowers, 481 N.E.2d at 106. Therefore, if there was but one victim and one incident of injury in each of Odom's cause numbers, then his convictions violate the prohibition against double jeopardy.

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. United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.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...