Shawn P. English v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law Jun 26 2014, 6:58 am
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STANLEY L. CAMPBELL GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SHAWN P. ENGLISH, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1311-CR-457
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D06-1306-FD-697
June 26, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Shawn English appeals his convictions for Class D felony resisting law
enforcement and Class D felony battery. We affirm and remand.
Issue
English raises one issue, which we restate as whether his convictions violate
double jeopardy principles because the same bodily injury was used to elevate both
offenses.
Facts
On June 15, 2013, a Fort Wayne police officer responded to a complaint about a
man in a parking lot yelling and screaming. The man, later identified as English, would
not calm down and continued to yell and scream. The police officer encouraged English
to walk away. Although English finally started to walk away, he stopped and began
shaking a “No Parking” sign until he broke the post. English threw the sign toward the
officer. Ex. 1.
The officer called for backup, and Officer Darrell Caudill of the Fort Wayne
Police Department arrived at the scene. English repeatedly refused to follow the officers’
instructions and physically struggled with Officer Caudill as he tried to restrain English.
After tasing English, the officers were able to get him into the back of squad car, and
Officer Caudill transported English to a hospital. As Officer Caudill was getting English
out of the squad car, English hit Officer Caudill on the head with his own head, and
Officer Caudill “saw stars.” Tr. p. 26. English was eventually restrained and taken into
the hospital.
2
On June 20, 2013, the State charged English with Class D felony resisting law
enforcement, Class D felony battery, Class B misdemeanor criminal mischief, and Class
B misdemeanor disorderly conduct. Both Class D felony charges were based on the
bodily injury caused to Officer Caudill. At the bench trial, Officer Caudill testified that
the battery and the injury during the resisting were based on the same blow to the head.
The trial court found English guilty as charged.1 English was sentenced to three years on
each of the Class D felonies and to 180 days on each of the Class B misdemeanors. The
trial court ordered the sentences to be served concurrently. English now challenges the
Class D felony convictions.
Analysis
English argues it was improper to elevate both the resisting law enforcement
charge and the battery charge to Class D felonies based on the same bodily injury to
Officer Caudill, and the State agrees. Our supreme court has acknowledged a series of
rules of statutory construction and common law that are often described as double
jeopardy but are not governed by the constitutional test set forth in Richardson v. State,
717 N.E.2d 32 (Ind. 1999). Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). This
includes the prohibition against elevating two convictions for the same bodily injury. See
id. “To remedy a double jeopardy violation, a court may reduce the sentencing
classification on one of the offending convictions.” Strong v. State, 870 N.E.2d 442, 443
1
The written judgment of conviction refers to two counts of Class D felony resisting law enforcement
instead of one count of Class D felony resisting law enforcement and one count of Class D felony battery.
3
(Ind. 2007). The State contends that to remedy the double jeopardy violation the resisting
law enforcement conviction should be reduced to a Class A misdemeanor, and we agree.2
Conclusion
Because the same bodily injury was used to elevate the resisting law enforcement
and battery charges to Class D felonies, we remand for the trial court to reduce the Class
D felony resisting law enforcement conviction to Class A misdemeanor resisting law
enforcement.
Affirmed and remanded.
BAKER, J., and CRONE, J., concur.
2
Because the three-year sentences were ordered to be served concurrently, it is unnecessary to remand
for resentencing.
4