Thorpe v. State, 52A05-9605-CR-190

• Decision Date: 17 October 1997
• Docket Number: No. 52A05-9605-CR-190,52A05-9605-CR-190
• Citation: 686 N.E.2d 1296
• Parties: Gary D. THORPE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1296

686 N.E.2d 1296

Gary D. THORPE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 52A05-9605-CR-190.

Court of Appeals of Indiana.

Oct. 17, 1997.

Brent Westerfeld, Indianapolis, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION ON REHEARING

KIRSCH, Judge.

In a memorandum decision issued July 16, 1997, we held that principles of double jeopardy barred Thorpe's convictions for both attempted murder and burglary as a Class A felony because the charging informations based the crimes upon the same factual allegations, i.e., the infliction of the same injuries on the victim. As a result, we reversed Thorpe's burglary conviction and remanded the matter to the trial court with instructions that judgment of conviction be entered for burglary as a Class B felony.

The State seeks rehearing, claiming that the supreme court's decisions in Games v. State, 684 N.E.2d 466 (Ind.1997) and Grinstead v. State, 684 N.E.2d 482 (Ind.1997), decided six days after our opinion, preclude a reduction in Thorpe's burglary conviction on double jeopardy grounds. Thorpe responds that the reduction in his burglary conviction should stand because he advanced a state constitutional claim, the validity of which remains after the Games and Grinstead opinions because those decisions were limited to federal constitutional principles.

In a footnote, the supreme court in Games commented on the defendant's state constitutional claim:

"In presenting the general claim that his sentences violate the double jeopardy provisions of the Indiana and United States Constitutions, the defendant cites both constitutions. However, the defendant does not provide Indiana authority, and we find none from this Court, establishing an independent state double jeopardy protection based upon an analysis of the Indiana Constitution. Of the cases cited by the defendant in support of his double jeopardy argument, only Bevill v. State, 472 N.E.2d 1247 (Ind.1985) [also cited by Thorpe here] mentions the Indiana Constitution. However, the mention in Bevill is only a recitation of the defendant's claim that it violated the Indiana Constitution. Bevill resolves the claim utilizing an analysis based upon the federal provision. The defendant presents no argument urging that the Indiana Constitution provides double jeopardy protections different from those under the federal constitution. Because the defendant fails to present an argument based upon a separate analysis of the Indiana Constitution, 'we will only analyze this under federal double jeopardy standards.' Gregory-Bey v. State, 669 N.E.2d 154, 157 n. 8 (Ind.1996)."

684 N.E.2d at 473 n. 7 (additional citations omitted).

The supreme court based its decision to ignore the state constitutional issue upon the defendant's failure to argue that the Indiana Constitution required a separate analysis of the double jeopardy claim. There was no reason, however, for a defendant to advance a separate analysis under the state constitution's double jeopardy clause because prior to the Games decision, double jeopardy claims brought under the state constitution were analyzed conjointly with double jeopardy claims brought under the federal constitution. See Neal v. State, 659 N.E.2d 122, 124-25 (Ind.1995); Buie v. State, 633 N.E.2d 250, 260-61 (Ind.1994). See also Chiesi v. State, 644 N.E.2d 104, 106-07 (Ind.1994) (citing Indiana Constitution, not federal constitution, and applying Blockburger test to charging informations and proof at trial).

Defendants now have a reason to argue that double jeopardy claims under the state constitution should be analyzed differently than their federal counterpart because of the change in the analysis of federal double jeopardy claims brought about by United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), as interpreted and made binding by our supreme court in Games. Despite such a change in federal constitutional jurisprudence, the majority opinion in Games "makes no change in Indiana constitutional or statutory law in this regard and so the...