Schoeff v. State

• Court: Indiana Supreme Court
• Citation: 268 N.E.3d 273
• Docket Number: Supreme Court Case No. 24S-CR-00418
• Decision Date: 28 October 2025
• Parties: Michael T. SCHOEFF, Appellant, v. STATE of Indiana, Appellee.

268 N.E.3d 273

Michael T. SCHOEFF, Appellant,

v.STATE of Indiana, Appellee.

Supreme Court Case No. 24S-CR-00418

Supreme Court of Indiana.

Filed October 28, 2025

Court of Appeals Case No. 23A-CR-02163, Trial Court Case No. 18C04-2011-F1-000014

Published Order

By order dated December 5, 2024, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including consideration of the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Schoeff v. State, 242 N.E.3d 1080 (Ind. Ct. App. 2024), should be reinstated as Court of Appeals precedent.

Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

Rush, C.J., and Goff, J., concur.

Massa, J., concurs in the denial of transfer with separate opinion.

Molter, J., concurs in the denial of transfer with separate opinion.

Slaughter, J., dissents from the denial of transfer with separate opinion.

Massa, J., respecting the denial of transfer.

I think Justice Slaughter may well be right when he says “enough,” and proposes a simpler approach to a question that has vexed Hoosier judges for decades. Post at 274-75. I am more than open to it in a future case. I write separately to offer a personal and practical perspective that comes from four decades in our criminal justice system, with a front-row seat to the unfortunate consequences of constitutionalizing the issue of “piling on.” That effort, in my judgment, was well-meaning. But the cure has been worse than the disease, particularly when we have better treatment options at our disposal.

Consider a fairly recent case of ours, Hines v. State, 30 N.E.3d 1216 (Ind. 2015). Hines battered his victim in the ribs, pinned her to the wall, then confined her in a headlock for several minutes. He was charged with Confinement and Battery. Id. at 1218. He was convicted of both crimes and received eight years. On review, we held that the battery charge had to be “vacated” as a matter of state constitutional law under an “actual evidence” test, like it never happened. Id. at 1222. Not “merged for sentencing purposes,” as we frequently saw prior to Richardson v. State, 717 N.E.2d 32 (Ind. 1999), but “vacated.” When all was said and done, Hines’ sentence did not change; he still received eight years. Id. at 1227. But now his criminal record shows only the confinement conviction for that case and not the battery he clearly committed. Was that juice really worth the squeeze? Three decades of confounding our judges and lawyers to erase an extra line on a criminal history report.

This is why I gladly concurred in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), as it abrogated Richardson in a way that at least got us closer to the more easily applied federal approach Justice Slaughter suggests. And, just last year, I struggled mightily to subsequently refine Wadle’s holding in AW. v. State, 229 N.E.3d 1060 (Ind. 2024). But as our colleagues on the Court of Appeals continue to remind us, uncertainty persists. The better approach is to give the bench and bar a clear fixed standard on which to rely. Justice Slaughter suggests one, via a return to first principles, with minimal practical consequences for convicted criminals.

Let’s not forget what this really is all about: preventing the occasional trial judge from abusing his or her discretion by piling on at sentencing. Two answers occur: First, such abuse is, in my experience, rare, as our judges strive daily to apply the law justly and reasonably. I trust them. And secondly, if a sentence is excessive, our appellate courts have the explicit constitutional authority to revise it. That, in my judgment, is preferable to inventing constitutional tests unique to Indiana that elude clear understanding and consistent application. Judges regularly consider the overlapping elements of multiple counts and their compressed duration when fashioning appropriate sentences. They don’t need another constitutional test to cabin their discretion, beyond what the Supreme Court of the United States imposed in U.S. v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); there’s nothing unique about Indiana’s double jeopardy clause to suggest a different approach. And this is especially so when, in addition to plenary appellate review of sentences (where an “actual evidence” test might enter the calculus), the legislature has long capped consecutive sentences for multiple crimes committed in a single “episode of criminal conduct,” with exceptions for certain violent crimes. See Indiana Code Section 35-50-1-2. As Justice Slaughter notes, the legislature is free to impose such limits, but the constitution does not compel it in most circumstances. Post at 282.

Molter, J., respecting the denial of transfer.

The State charged Michael Schoeff with two counts. Count I alleged Level 1 felony dealing a controlled substance causing death, and Count II alleged Level 5 felony conspiracy to commit dealing a narcotic drug. The State also alleged he was a habitual offender.

A jury convicted Schoeff on Count II’s conspiracy charge but hung on Count I’s dealing causing death charge. After the judge entered a judgment of conviction on Count II, Schoeff moved to dismiss Count I. He argued that retrying Count I would violate the Indiana Constitution’s prohibition on putting someone “in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. After the trial court denied the motion, a second jury convicted Schoeff on Count I and determined he was a habitual offender. The trial court then entered a judgment of conviction for Count I based on the second jury’s verdict, vacated the conviction on Count II to avoid double jeopardy concerns, and sentenced Schoeff to an aggregate forty-four-year sentence.

The Court of Appeals affirmed after rejecting Schoeff’s double jeopardy argument that he could not be retried on Count I following the hung jury. Schoeff v. State, 242 N.E.3d 1080, 1082 (Ind. Ct. App. 2024). But the three-judge panel issued three opinions. And those opinions reveal uncertainty about how to analyze claims of procedural double jeopardy (repeated prosecution for the same offense) as opposed to substantive double jeopardy (multiple punishments for the same offense). Judge Mathias’s opinion for the court explained that while Schoeff argues “the actual-evidence test formulated in Richardson v. State establishes a procedural double jeopardy violation,” the court believed “the continued viability of that test is uncertain.” Id. at 1086. That is because our Court overruled Richardson in the context of substantive double jeopardy claims, and “we expressly reserve[d] any conclusion on whether to overrule Richardson” in the procedural double jeopardy context. Wadle v. State, 151 N.E.3d 227, 244 n.15 (Ind. 2020). Judge Tavitas concurred with a separate opinion explaining her view “that the constitutional procedural double jeopardy analysis under Richardson is unworkable.” Schoeff, 242 N.E.3d at 1089 (Tavitas, J., concurring). Judge Weissmann concurred in part and dissented in part, explaining her view that both the court’s opinion and the concurring opinion “misappl[ied] the actual-evidence test from Richardson v. State.” Id. at 1093 (Weissmann, J., concurring in part and dissenting in part).

We granted transfer to clarify the standard for procedural double jeopardy claims. But I join the Court’s decision to rescind transfer because I conclude this is a continuing jeopardy case rather than a double jeopardy case. Schoeff was retried after the jury could not reach a verdict on Count I. And as the Court of Appeals’ majority opinion correctly explains in a footnote, “under the doctrine of continuing jeopardy, retrial following a ‘hung jury’ does not violate a defendant’s double jeopardy rights.” Id. at 1087 n.5; accord Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (“Normally, a retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause.” (quotations omitted)).

I am mindful of dicta in Cleary v. State suggesting that, at least for purposes of the successive prosecution statute, Ind. Code § 35-41-4-3, the analysis may turn on whether the trial judge enters a judgment of conviction on the jury’s verdict before a retrial on any counts for which the jury could not reach a verdict. 23 N.E.3d 664, 668 (Ind. 2015) (“It is unequivocal that if the trial court had entered a judgment of conviction for those lesser-included misdemeanors, Indiana Code § 35-41-4-3(a) would have barred the State from retrying Cleary on Counts I, II, and III.”). But Cleary identifies no support for the proposition that a nonfinal, subsequently vacated judgment has that effect for either the successive prosecution statute or constitutional double jeopardy protections. Instead, as Cleary correctly explained later in the opinion, under the continuing jeopardy doctrine “a defendant who is retried following a hung jury is not placed in jeopardy twice for the same offense, because the initial jeopardy that attaches to a charge is simply suspended by the jury’s failure to reach a verdict.” Id. at 673 (quotations omitted).

Because the Court of Appeals appropriately affirmed and this is a case of continuing rather than double jeopardy, transfer is not warranted, and we should await another case to clarify the standard for procedural double jeopardy claims.

Slaughter, J., dissenting from the denial of transfer.

The prohibition against “double jeopardy” for criminal defendants has been a key feature of Indiana’s constitution since statehood. It was part of our original 1816 constitution and is repeated, nearly verbatim, in our current constitution: “No person shall be put in jeopardy twice for...