Jerry W. Young v. State of Indiana , 2016 Ind. App. LEXIS 260 ( 2016 )

FILED
Jul 26 2016, 9:07 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Peter D. Todd Gregory F. Zoeller
Elkhart, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry W. Young, July 26, 2016
Appellant/Defendant, Court of Appeals Case No.
20A04-1512-CR-2142
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Evan S. Roberts,
Appellee/Plaintiff/Cross-Appellant. Judge
Trial Court Cause No.
20D01-1504-FA-18
Bradford, Judge.
Case Summary
[1] In 2012, Appellant-Defendant Jerry Young raped A.B. In 2015, Young was
convicted of Class A felony rape, Class A felony criminal deviate conduct, and
Class D felony intimidation. Young was also found to be a repeat sexual
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offender and a habitual criminal offender. The trial court merged the
convictions for rape and criminal deviate conduct and sentenced Young to an
aggregate ninety-year term. On appeal, Young argues that the trial court erred
by enhancing his rape conviction twice. The State concedes the trial court erred
in this regard but argues that the trial court should have reduced the criminal
deviate conduct charge to a lesser-included offense and applied one of the
enhancements to that conviction. We reverse and remand with instructions.
Facts and Procedural History
[2] On October 16, 2012 at around 1:00 a.m., A.B. arrived home and went to sleep
on her couch. At around 3:00 a.m., A.B. was awaken by someone knocking on
her door. Assuming it was one of her friends, A.B. opened the door. Instead, it
was Young, who pushed his way into her apartment. A.B. did not know
Young but had seen him before walking near her apartment. Young, who was
intoxicated, sat down on A.B.’s couch, and A.B. tried to convince him to leave
to no avail. Young told A.B. he wanted to “play a sexual game.” Tr. p. 144.
Despite A.B.’s refusal, Young said “We’re going to do this,” and forced A.B. to
have sexual intercourse with him and to fellate him.
[3] On April 29, 2015, the State charged Young with Class A felony rape, Class A
felony criminal deviate conduct, and Class D felony intimidation. The State
also alleged that Young was a repeat sexual offender and a habitual criminal
offender. After a jury trial, Young was found guilty as charged and admitted to
being a repeat sexual offender and a habitual offender. At sentencing, the trial
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court merged the convictions for rape and criminal deviate conduct and
sentenced Young to fifty years for rape and three years for intimidation to be
served concurrently. The trial court also enhanced Young’s sentence by thirty
years due to his status as a habitual offender and an additional ten years based
on his repeat sexual offender status, for an aggregate ninety-year sentence.
Discussion and Decision
[4] Young argues that the trial court erred by applying two sentence enhancements
to his rape conviction. The State concedes that the trial court erred in this
regard. “[A] conviction under a specialized habitual offender statute cannot be
further enhanced under the general habitual offender statute in the absence of
explicit legislative direction.” Dye v. State, 972 N.E.2d 853, 857 (Ind. 2012),
aff’d on reh’g, 984 N.E.2d 625 (Ind. 2013). The Court in Dye also noted that the
repeat sexual offender statute is a “specialized habitual offender statute.” Id. at
864.
[5] The State, however, argues that the trial court erred by merging Young’s
convictions for rape and criminal deviate conduct. Young did not file a
response to the State’s argument on this issue. “The failure to respond to an
issue raised by the appellant is akin to the failure to file a brief. Under such
circumstances, we may reverse upon a showing of prima facie error on the issue
which was not addressed.” Nat’l Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 496
(Ind. Ct. App. 1999) (citations omitted). “‘Although this failure does not
relieve us of our obligation to correctly apply the law to the facts in the record
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in order to determine whether reversal is required, counsel for the appellee
remains responsible for controverting arguments raised by the appellant.’”
Elliott v. Rush Mem’l Hosp., 928 N.E.2d 634, 639 (Ind. Ct. App. 2010) (quoting
Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 837 (Ind. Ct. App. 2005),
trans. denied).
[6] The trial court ordered that Young’s convictions be merged based on Ramon v.
State, 888 N.E.2d 244 (Ind. Ct. App. 2008). “‘Under the rules of statutory
construction and common law that constitute one aspect of Indiana’s double
jeopardy jurisprudence, where one conviction is elevated to a class A felony
based on the same bodily injury that forms the basis of another conviction, the
two cannot stand.’” Id. (quoting Strong v. State, 870 N.E.2d 442, 443 (Ind.
2007)). The trial court merged the convictions because both were enhanced to
A felonies based on the same threatened use of deadly force.
[T]here are times when a Court has to do a few things that the
Court does not agree with and, in part, this is one of those times.
In light of the case of [Ramon] versus the State of Indiana, 888
N.E.2d 244, the Court believes that counts 1 and Count 2 must be
merged in light of the charging information, file stamped April
30, 2015. The basis for that is the element of deadly force or the
imminent threat of deadly force. It appears to the Court that it is
the same deadly force or imminent threat used in both charges.
That’s what the law indicates, counts 1 and Count 2 [sic] must be
merged, otherwise it is considered to be a double jeopardy
violation.
Tr. p. 800.
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[7] The State argues that the proper remedy to this double jeopardy problem was
not to merge the convictions but to reduce one of the offending convictions to a
lesser-included offense. “When two convictions are found to contravene double
jeopardy principles, a reviewing court may remedy the violation by reducing
either conviction to a less serious form of the same offense if doing so will
eliminate the violation.” Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999).
Specifically, the State contends that the trial court should have reduced Young’s
conviction for Class A felony criminal deviate conduct to Class B felony
criminal deviate conduct, which requires only the use or threatened use of force
rather than the threatened use of deadly force as an element.1 The State further
argues that there was ample evidence of physical force used by Young in
forcing A.B. to fellate him distinct from the threatened use of deadly force
supporting the rape conviction. We agree and remand with instructions that
the trial court enter judgement of conviction for Class B felony criminal deviate
conduct. See Kovats v. State, 982 N.E.2d 409, 414 (Ind. Ct. App. 2013)
(Defendant was convicted of Class D felony OWI causing serious bodily injury
and Class B felony neglect of a dependent causing serious bodily injury, with
the same bodily injury used to support both convictions. This court found that
1
“(a) A person who knowingly or intentionally causes another person to perform or submit to deviate sexual
conduct when: (1) the other person is compelled by force or imminent threat of force;…commits criminal
deviate conduct, a Class B felony.
(b) An offense described in subsection (a) is a Class A felony if: (1) it is committed by using or threatening the
use of deadly force.”
Ind. Code § 35-42-4-2 (2012).
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the trial court’s merger of convictions was insufficient to cure double jeopardy
violations and the appropriate remedy for such a violation was to vacate the
judgment for Class D felony OWI and enter a judgment for the lesser-included
offense of Class A misdemeanor OWI.).
[8] Upon remedying a double jeopardy issue, “the trial court need not undertake a
full sentencing reevaluation, but rather the reviewing court will make this
determination itself, being mindful of the penal consequences that the trial court
found appropriate.” Richardson, 717 N.E.2d at 54. On remand for
resentencing, we instruct the trial court to run any sentence imposed on the
criminal deviate conduct conviction concurrent to Young’s fifty-year sentence
for rape.
[9] Additionally, the State argues that the trial court should have enhanced the rape
conviction under the habitual offender statute and enhanced the criminal
deviate conduct conviction under the repeat sexual offender statute. Again,
Young did not reply to the arguments raised by the State. While it is
permissible to impose multiple habitual offender enhancements on separate
convictions, generally those enhancements must be run concurrently. In
Breaston v. State, the Indiana Supreme Court held that “a trial court cannot order
consecutive habitual offender sentences” even where the second enhanced
sentence is imposed in an entirely separate proceeding. 907 N.E.2d 992, 994
(Ind. 2009) (citing Starks v. State, 523 N.E.2d 735, 737 (Ind. 1988)). The Court
reasoned as follows:
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“[T]he power to order consecutive sentences is subject to the rule
of rationality and limitations in the constitution…. it is apparent,
from a study of the present statutes, that such statutes are silent
on the question of whether courts have the authority to require
habitual offender sentences to run consecutively, when engaged
in the process of meting out several sentences. In the absence of
express statutory authorization for such a tacking of habitual
offender sentences, there is none.”
Id. (quoting Starks, 523 N.E.2d 736-37).
[10] We acknowledge a factual distinction between the instant case and those
situations addressed in Breaston and Starks. In those cases, the Court addressed
whether two general habitual offender enhancements could be run
consecutively. Here, we address whether a general habitual offender
enhancement and a specialized habitual offender enhancement––the repeat
sexual offender enhancement––can be run consecutively. Despite the
difference, we see no reason why the rationale of Breaston and Starks should not
be similarly applied to this case. Just as there is no express statutory
authorization for stacking general habitual offender enhancements, there is
likewise no authorization for stacking general and specialized habitual offender
enhancements. Accordingly, on remand, the trial court should apply the
habitual offender enhancement to Young’s rape conviction and apply the repeat
sexual offender enhancement to the criminal deviate conduct conviction, to be
run concurrently.
Conclusion
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[11] The trial court erred by merging Young’s convictions for rape and criminal
deviate conduct and by applying two enhancements to a single conviction. On
remand, we order the trial court to enter judgment of conviction for Class B
criminal deviate conduct. With regards to sentencing, Young’s fifty-year
sentence for rape, and thirty-year habitual offender enhancement, remain
unchanged. Young’s repeat sexual offender enhancement will be attached to
his criminal deviate conduct conviction with both sentences running concurrent
to the rape conviction for an aggregate sentence of eighty years.
[12] The judgment of the trial court is reversed and remanded with instructions.
Bailey, J., and Altice, J., concur.
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