State v. Allen
| Decision Date | 19 January 1995 |
| Docket Number | No. 18A02-9309-CR-511,18A02-9309-CR-511 |
| Citation | 646 N.E.2d 965 |
| Parties | STATE of Indiana, Appellant, v. Darlene ALLEN and Flora B. Allen, Appellees-Defendants. |
| Court | Indiana Appellate Court |
The State appeals the dismissal of charges against Flora and Darlene Allen. The issues presented for our review are:
I. whether the State filed a timely praecipe from the order dismissing charges against Flora; and
II. whether the trial court erred in dismissing the charges against both women.
We hold that the trial court erred in dismissing Count I of the State's indictment, but did not err in dismissing Count XI. Accordingly, we affirm in part, reverse in part, and remand for trial.
Darlene and Flora were the subject of a joint federal prosecution commenced on August 21, 1991, in the United States District Court of Indiana, Southern District. Count I of the six-count indictment 1 charged the two with conspiracy to possess with intent to distribute and to deliver cocaine. Both women pleaded guilty to the conspiracy charge, and the federal government dismissed the remaining charges. Flora was sentenced to thirty-seven months imprisonment and Darlene was sentenced to thirty months imprisonment.
On January 29, 1992, a Delaware County grand jury indicted Darlene and Flora on several charges arising from the same circumstances surrounding the federal prosecution. Count I charged the women with Corrupt Business Influence, and Count XI charged them with conspiracy to deliver cocaine. 2 The trial court determined that all State charges were for the same conduct as the federal charge and therefore contravened Indiana's double jeopardy prohibition as contained in I.C. 35-41-4-5 (Burns Code Ed.Repl.1994). 3 Accordingly, the trial court found that the State prosecution was barred and dismissed the charges with prejudice.
Although both women were prosecuted separately, pursuant to Ind.Appellate Rule 5(B), we granted the State's motion to consolidate the appeals.
Flora argues that the State did not file a timely praecipe. Flora filed her amended motion to dismiss on June 25, 1993. The trial judge granted the motion and ordered the case dismissed on June 30, 1993. However, the order was never entered on the clerk's docket and the State did not receive notice of the order until July 30, 1993. On August 2, 1993, the trial court acknowledged that the dismissal order had never been entered on the docket and proceeded to enter the order nunc pro tunc as of June 30, 1993.
Flora argues that the State was required to file it praecipe thirty days from June 30, 1993. Indiana Appellate Rule 2(A) provides that a praecipe shall be filed thirty days "after the entry of a final judgment...." (emphasis supplied). Here, the judgment, although effective as of June 30, 1993, was not entered until August 2, 1993. Accordingly, the praecipe, also filed August 2, 1993, was timely filed.
If the State had actual notice of the June 30 order we might be constrained to hold differently. Flora points out that at the bottom of the order, there are instructions that a copy should be sent to the prosecutor. This, she argues, is evidence that the prosecutor received a copy of the order in a timely fashion. However, as stated by Flora herself, the instruction is merely proof that "distribution was to be made" to the prosecutor; it is not proof that distribution was made. Flora's Brief at 6 (emphasis supplied). Had normal procedures been followed, the order would have been entered upon the clerk's docket on June 30, 1993. It was not. This fact leads to the conclusion that normal procedures for distributing copies were also not followed. The trial judge entered the order of dismissal without hearing and the prosecutor stated in a sworn affidavit that he had not received a copy of the order until July 30. There is no affirmative evidence of record that the State received notice of the order prior to July 30, 1993.
Because the praecipe was timely filed, we need not address Flora's argument that the State should have filed a motion to correct error instead of a praecipe.
The Indiana and United States Constitutions provide no protection from double jeopardy as between federal and state prosecutions. "[T]he double jeopardy provisions of the United States Constitution and the Indiana Constitution do not bar a state prosecution for conduct which was the subject of a prior federal prosecution since the state and federal governments are considered to be 'separate' or 'dual' sovereigns." Haggard v. State (1983) Ind., 445 N.E.2d 969, 972.
However, Indiana, through I.C. 35-41-4-5, has provided statutory protection against double jeopardy with regard to federal and state prosecutions. The statute provides that a former conviction in any other jurisdiction, including federal, bars subsequent prosecution by the State for the "same conduct." Therefore, the double jeopardy question involved in this case is one of statutory construction, rather than constitutional construction.
The State charged Darlene and Flora with Corrupt Business Influence 4, a violation of the Indiana Racketeer Influenced and Corrupt Organizations Act (RICO). 5 Both women were convicted in federal court of the single conspiracy count, i.e., conspiracy to possess with intent to distribute and to distribute cocaine. 6
In order to obtain a conviction, the State must prove "a [p]attern of racketeering activity". I.C. 35-45-6-1. This in turn requires proof of at least two predicate offenses. 7 As one of the predicate offenses supporting the Corrupt Business charge, the State alleged that Flora and Darlene each had conspired to possess cocaine. We agree that the conspiracy to possess cocaine alleged as a predicate offense in the State indictment is the same conduct for which Flora and Darlene were convicted in federal court. However, we hold that this did not violate Indiana's double jeopardy statute.
The United States Supreme Court has set forth a two-step analysis for determining whether successive prosecutions violate the Double Jeopardy Clause of the United States Constitution. Garrett v. United States (1985) 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764, reh'g denied. Because our double jeopardy statute seeks to protect a defendant from the same danger as the federal constitutional double jeopardy provisions, we find this test helpful, although not determinative, in interpreting our statute. 8
First, we must determine whether the Indiana General Assembly intended that the RICO violation be an offense separate from the predicate offenses. Garrett, supra, 471 U.S. at 777, 105 S.Ct. at 2410-11. If not, no further analysis is needed because the legislature has not authorized a subsequent prosecution. Id. If the legislature did intend that RICO established a different offense, the second step is to determine whether the subsequent offense is the "same conduct" for purposes of Indiana's double jeopardy statute. Id.
Indiana's RICO statute is patterned after the federal RICO statute. 4447 Corp. v. Goldsmith (1987) Ind., 504 N.E.2d 559, 560, rev'd on other grounds sub nom, (1989) 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34. Federal circuits addressing the question have agreed that Congress intended separate convictions for RICO and its predicate offenses. 9 The only Indiana authority on the subject has held that the Indiana legislature also intended separate convictions for a RICO violation and its predicate offenses. Dellenbach v. State (1987) 3d Dist.Ind.App., 508 N.E.2d 1309, 1316. We agree.
We must now determine whether a prosecution for a RICO violation based upon a predicate offense of conspiracy to possess with intent to deliver and to deliver cocaine in violation of 21 U.S.C. § 846 violates Indiana's double jeopardy statute. We conclude that it does not.
The United States Supreme Court has resolved this issue under substantially similar facts. In Garrett, supra, 471 U.S. 773, 105 S.Ct. 2407, the defendant was convicted in federal court of importation of marijuana. He was subsequently charged with engaging in a continuing criminal enterprise (CCE). 10 CCE is much like RICO in that it seeks to punish a scheme of ongoing criminal activity and requires proof of predicate offenses. United States v. Gonzalez (1991) 11th Cir., 921 F.2d 1530, 1537, cert. denied, (1991) 502 U.S. 860, 112 S.Ct. 178, 116 L.Ed.2d 140. The Court held that a prosecution for a CCE violation using a prior conviction as a predicate offense did not violate double jeopardy. "Quite obviously the CCE offense is not, in any commonsense or literal meaning of the term, the 'same' offense as one of the predicate offenses." Garrett, supra 471 U.S. at 786, 105 S.Ct. at 2415. The Court went on the state that the CCE offense requires proof that the defendant committed three predicate offenses, that the offenses were part of a continuing series of predicate offenses, that the predicates were committed in concert with five or more other persons, that the defendant occupied a management position, and that the defendant received substantial income from the continuing criminal enterprise.
Here, the State charged Flora and Darlene with a violation of subsection (3) of the Corrupt Business Influence statute, I.C. 35-45-6-2 (Burns Code Ed.Repl.1994). 11 That section provides that a person who "is employed by or associated with an enterprise, and who knowingly or intentionally conducts or otherwise participates in the activities of that enterprise through a pattern of racketeering activity" commits...
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