Walker v. State Of Ind.
| Decision Date | 27 October 2010 |
| Docket Number | No. 71A03-1003-CR-115.,71A03-1003-CR-115. |
| Citation | 932 N.E.2d 733 |
| Parties | Cullen Davis WALKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Neil L. Weisman, South Bend, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana. Nicole Dongieux Wiggins, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Cullen Davis Walker was convicted of burglary, robbery, and criminal confinement, all as Class B felonies. On appeal, he contends that two of these convictions should be vacated pursuant to the continuing crime doctrine. We conclude that the continuing crime doctrine does not apply because Walker was charged with distinct chargeable crimes. However, after considering the oral and written sentencing statements, we conclude that Walker's conviction for criminal confinement is improperly reflected in the Amended Judgment of Conviction & Sentencing Order (“Amended Judgment”) and Chronological Case Summary. We therefore affirm and remand for corrections to these written documents.
One morning in December 2008, Nicole Jefferson, Jerry Slisz, and Josh Longerot were sleeping in their house at 1215 Blaine Avenue, South Bend, Indiana. An acquaintance of Nicole knocked on her window and asked to use a phone to call for a ride. Nicole let her in and gave her a phone. After she made her calls, the acquaintance gave the phone back to Nicole, who took it upstairs to the bathroom. By this time, two other girls had arrived and were talking to Jerry in the living room.
When there was a knock at the door, the acquaintance said, “[O]h, that's my ride,” Tr. p. 402, and unlocked it. Walker then kicked in the door, entered the house with a gun, and ordered everyone upstairs. The acquaintance left the house, and Jerry and the other two girls went upstairs into Jerry's bedroom, followed by Walker. Walker ordered them to strip and bound their hands and feet with duct tape. He then kicked in the bathroom door, “snatche [d] [Nicole] off of the toilet,” id. at 461, put a gun to her head, and told her to “give [him] the money,” id. at 461-62. Nicole gave him $300. Walker then ordered her to strip and bound her hands and feet with duct tape in Jerry's bedroom. Walker searched the house. He returned to Jerry's room and ordered Nicole downstairs. When she was unable to go down the stairs with her feet bound, Walker picked her up and took her downstairs. Walker ransacked the house, putting stolen items into a bag.
In the meantime, Josh was awakened in his bedroom by the sound of a male voice he did not recognize yelling in the upstairs hallway. Josh quickly dressed and grabbed a steel bar. Walker kicked open the door to his room but did not see Josh standing around the corner. After Walker left the room, Josh escaped out a bedroom window and called the police from a nearby house.
Officer David Heighway of the South Bend Police Department was dispatched to 1215 Blaine Avenue in response to a home invasion. He saw Walker appear from the front of the house and yelled for him to stop. Walker took off running. Other officers who arrived in the area searched for Walker and eventually found him hiding in the attic of a vacant house. Walker was found with, among other things, 3.27 grams of crack cocaine.
The State charged Walker with Class B felony burglary 1 (Count I), Class B felony robbery 2 as to Nicole (Count II), two counts of Class B felony criminal confinement 3 -one as to Nicole (Count III) and one as to Jerry (Count IV)-and Class C felony possession of cocaine 4 (Count V). A jury convicted Walker on all counts. At sentencing, the trial court vacated the judgment of conviction on Count III, finding that it merged with Count II. The court sentenced Walker to eighteen years on Count I, twenty years on Count II, eighteen years on Count IV, and six years on Count V. Counts I and V were ordered to run concurrently, with all other counts to run consecutively, for an aggregate sentence of fifty-six years. Walker now appeals.
Walker contends that his burglary and criminal confinement convictions should be vacated pursuant to the continuing crime doctrine. He also notes and the State agrees that there are errors in the Amended Judgment.
Walker contends that his burglary and criminal confinement convictions should be vacated pursuant to the continuing crime doctrine. The continuing crime doctrine essentially provides that actions that are sufficient in themselves to constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction. Riehle v. State, 823 N.E.2d 287, 296 (Ind.Ct.App.2005), trans. denied.
We first address the relationship between Indiana's prohibition against double jeopardy and the continuing crime doctrine. We then address whether the continuing crime doctrine is applicable to Walker's convictions.
Walker states that “Indiana law contains a ‘continuing crime doctrine’ that is separate and distinct from the constitutional protection against double jeopardy set out in Indiana Constitution Article I, Section 14.” Appellant's Br. p. 6. He then asserts that his claim on appeal is based on Indiana's continuing crime doctrine and not double jeopardy. Id. at 7.
The double jeopardy clause of the Indiana Constitution provides, “No person shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14.
Contrary to Walker's contention, the continuing crime doctrine reflects a category of Indiana's prohibition against double jeopardy. See Boyd v. State, 766 N.E.2d 396, 400 (Ind.Ct.App.2002). In Boyd, the defendant both moved the victim from one place to another and attempted to confine the same victim in one place. Id. at 398. The defendant was convicted of criminal confinement pursuant to the subsection of the confinement statute regarding removal from one place to another and attempted criminal confinement pursuant to the subsection regarding nonconsensual restraint in one place. Id. at 401. On appeal, the defendant argued that since the confinement was continuous, he could be properly convicted of only one confinement offense. Id. at 399. He relied on Idle v. State, 587 N.E.2d 712, 718 (Ind.Ct.App.1992), trans. denied, where we vacated one of two criminal confinement convictions, even though each was based on a violation of a different subsection of the confinement statute, because there was only one continuous episode of confinement of the victim. Boyd, 766 N.E.2d at 400. The State responded that Idle was superseded by our Supreme Court's decision in Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999), which held that “two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Boyd, 766 N.E.2d at 400.
We disagreed with the State, first noting that Idle was not among the cases listed by Richardson as superseded by its holding, and then stating:
[T]he State's application of the Richardson test is overbroad. The statutory elements and actual evidence tests are designed to assist courts in determining whether two separate chargeable crimes amount to the “same offense” for double jeopardy purposes. The continuous crime doctrine does not seek to reconcile the double jeopardy implications of two distinct chargeable crimes; rather, it defines those instances where a defendant's conduct amounts only to a single chargeable crime. In doing so, the continuous crime doctrine prevents the state from charging a defendant twice for the same continuous offense.
Id. Finding that the defendant subjected the victim to one continuous episode of confinement, we vacated the attempted criminal confinement conviction. Id. at 401.
Boyd thus clarified that while Indiana's double jeopardy clause prohibits convicting a defendant of two or more distinct chargeable crimes when they constitute the “same offense” under Richardson, it also prohibits convicting a defendant multiple times for the same continuous offense.
We next address whether the continuing crime doctrine is applicable to Walker's convictions.
It is apparent from Boyd that the continuing crime doctrine does not apply to factual situations where a defendant is charged with two or more distinct chargeable crimes. See also Firestone v. State, 838 N.E.2d 468, 472 (Ind.Ct.App.2005) ().
Instead, the continuing crime doctrine may apply to those situations where a defendant has been charged multiple times with the same offense, which includes two scenarios. First, a defendant is charged multiple times with the same offense when he or she is charged multiple times with one offense. See Haggard v. State, 445 N.E.2d 969, 972-73 (Ind.1983) (), modified on other grounds by Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985); Nunn v. State, 695 N.E.2d 124, 125 (Ind.Ct.App.1998) (); Idle, 587 N.E.2d at 718 ().
Second, a defendant is charged multiple times with the same offense when he or she is charged with an offense and a lesser included offense. See Taylor v. State, 879 N.E.2d 1198, 1203 (Ind.Ct.App.2008) (); Boyd, 766 N.E.2d at 401 (...
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