Fili Moala v. State of Indiana ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES H. VOYLES, JR. GREGORY F. ZOELLER
TYLER D. HELMOND Attorney General of Indiana
Voyles Zahn & Paul
Indianapolis, Indiana MONIKA PREKOPA TALBOT
Deputy Attorney General
FILED
Indianapolis, Indiana
Jun 27 2012, 8:54 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
FILI MOALA, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1109-CR-870
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Shatrese Flowers, Commissioner
Cause No. 49F19-1009-CM-68937
June 27, 2012
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Following a bench trial, Fili Moala was found guilty as charged of operating a vehicle
with an alcohol concentration between .08 and .15, a Class C misdemeanor, and public
intoxication, a Class B misdemeanor. He was also found guilty of operating a vehicle while
intoxicated as a Class C misdemeanor rather than the Class A misdemeanor charged by the
State. All charges stemmed from a single incident of Moala operating his vehicle on a public
road. The trial court merged the two operating convictions, entered a judgment of conviction
on operating while intoxicated as a Class C misdemeanor, and sentenced him to sixty days.
The trial court also entered a judgment of conviction on the public intoxication conviction
and sentenced him to 180 days, with the sentences to be concurrent.
Moala appeals, raising one issue for our review: whether the trial court violated
double jeopardy in entering convictions for both operating a vehicle while intoxicated and
public intoxication when the same evidentiary facts establish both offenses. Moala requests
that the Class C misdemeanor operating a vehicle while intoxicated conviction be vacated.
The State concedes that the two convictions violate double jeopardy; however, the State
requests that the public intoxication conviction be vacated. Concluding the appropriate
remedy for the double jeopardy violation is to vacate the operating while intoxicated
conviction, we reverse and remand.
Facts and Procedural History
Moala was stopped on Illinois Street in Indianapolis, Indiana on September 3, 2010,
for speeding. When the officer approached the vehicle, he smelled the odor of alcohol and
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noticed that Moala had bloodshot eyes. When the officer asked for identification, Moala first
handed him a credit card. Moala admitted that he had consumed five or six drinks. When
the officer asked Moala to exit the vehicle, Moala was barefoot and kept encroaching on the
officer’s personal space despite the officer’s requests that Moala not approach him. Moala
failed two of three field sobriety tests and a chemical test indicated he had a .10 blood
alcohol content.
The State charged Moala with operating while intoxicated causing endangerment, a
Class A misdemeanor; operating with a blood alcohol content between .08 and .15, a Class C
misdemeanor; and public intoxication, a Class B misdemeanor. Moala was tried to the
bench, and the trial court found:
. . . As to Count II, Operating a Vehicle With a Blood Alcohol Concentration,
[sic] Court finds the Defendant guilty, a Class B Misdemeanor. And as to
Count III, Public Intoxication, Court finds the defendant guilty of a Class B
Misdemeanor . . . . As to Count I, operating a Vehicle While Intoxicated,
Court finds the defendant guilty of a Class C without the endangerment,
Operating a Vehicle While Intoxicated as a C Misdemeanor.
Transcript of Sentencing Hearing at 7-8. The trial court originally announced that “Count I
and II will merge. As far as sentencing. And Count III, Public Intoxication merges with
Counts I and II.” Id. at 11. Despite stating that all counts would merge into one, the trial
court announced a sentence for both public intoxication and operating while intoxicated.
Moala filed a motion to correct error alleging the trial court erred in merging any of the
counts and that double jeopardy requires the trial court enter a conviction only of public
intoxication, the highest class crime of which Moala was found guilty. The State responded
to the motion to correct error by moving to dismiss the public intoxication count. At a
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hearing on the motion to correct error, the trial court amended its previous statement by
noting that “Count III should not merge with Count I and II and that the sentence should
remain as set . . . .” Id. at 25. Therefore, the trial court ultimately sentenced Moala as
follows: Count II, operating a vehicle with a blood alcohol concentration between .08 and
.15, was merged with Count I, operating a vehicle while intoxicated as a Class C
misdemeanor lesser-included offense of the Class A misdemeanor charged, and Moala was
sentenced to sixty days for the conviction on Count I. Moala was also sentenced to 180 days
for the conviction on Count III, public intoxication. The sentences were ordered to be served
concurrently, and all but two days of each was suspended. The State withdrew its motion to
dismiss. Moala now appeals.
Discussion and Decision
I. Double Jeopardy Violation
Moala’s opening brief contends the trial court erred in entering a conviction for both
operating a vehicle while intoxicated and public intoxication under the actual evidence test
announced in Richardson v. State, 717 N.E.2d 32 (Ind. 1999).
Article 1, section 14 of the Indiana Constitution states, “No person shall be put in
jeopardy twice for the same offense.” In Richardson, our supreme court 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.” 717 N.E.2d at 49 (emphasis
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in original). Two challenged offenses constitute the same offense under the actual evidence
test when a defendant demonstrates based on the actual evidence presented at trial “a
reasonable possibility that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish the essential elements
of a second challenged offense.” Id. at 53.
The evidence presented at Moala’s trial establishes the following facts: on September
3, 2010, Moala was operating his vehicle on a public road in an impaired manner. Moala
argues, and the State concedes, that this evidence established both the operating a vehicle
while intoxicated and public intoxication convictions. See Brief of Appellee at 6
(“Defendant’s convictions for operating while intoxicated and public intoxication violate his
double jeopardy protections under the Indiana Constitution.”). We agree that the convictions
violate our state constitutional double jeopardy principles. See Smith v. State, 725 N.E.2d
160, 162 (Ind. Ct. App. 2000) (holding double jeopardy violated when trial court necessarily
used evidence that defendant operated his vehicle on a public road while intoxicated to
establish convictions for both operating a vehicle while intoxicated and public intoxication).
Therefore, one of Moala’s two convictions must be vacated.
II. Remedy for Violation
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.
If it will not, one of the convictions must be vacated. In the interest of
efficient judicial administration, 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.
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Richardson, 717 N.E.2d at 54 (citation omitted). In the Richardson case, the defendant was
convicted of robbery as a Class C felony and battery as a Class A misdemeanor, which our
supreme court found to be a violation of the Indiana Double Jeopardy Clause under the actual
evidence test. “Because both convictions therefore cannot stand, we vacate the conviction
with the less severe penal consequences and leave standing the robbery conviction.” Id. at
55.
Moala was convicted of public intoxication as a Class B misdemeanor and operating
while intoxicated as a Class C misdemeanor. There is not a less serious form of either
offense, and even if there were, given the facts of this case, reducing either offense would not
remedy the double jeopardy violation. Moala asserts that the lower class offense, operating
while intoxicated, should therefore be vacated. The State, referring to language from our
caselaw about vacating the conviction with the “least severe penal consequences,”
acknowledges that “it would appear that vacat[ing] the class C misdemeanor driving while
intoxicated conviction and keeping the class B misdemeanor public intoxication conviction
would be proper.” Br. of Appellee at 7. However, the State asserts that “this should not be
the end of the analysis” and requests that the public intoxication conviction be vacated. Id.
The State makes two arguments in support of its request. First, the State asserts that the
operating while intoxicated conviction, though a lower class of crime, may have more severe
penal consequences when the suspension of driving privileges attendant to such a conviction
is considered. Second, the State notes that at the motion to correct error hearing, it “made it
clear that if one count were vacated, the State would like that to be the public intoxication
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count . . .,” id. at 7, and asserts that prosecutorial discretion should exist “with respect to
choosing which conviction to keep in a double jeopardy situation,” id. at 8.
Our courts have not considered in any detail the phrase “penal consequences.” In
most cases in which a double jeopardy violation is found, the reviewing court simply orders
the conviction that is the lower class of crime to be vacated. See, e.g., Jenkins v. State, 726
N.E.2d 268, 271 (Ind. 2000) (finding felony murder and robbery convictions to violate
double jeopardy and declining defendant’s request to vacate felony murder in favor of
vacating robbery “because it has less severe penal consequences”); Newgent v. State, 897
N.E.2d 520, 529 (Ind. Ct. App. 2008) (ordering Class B criminal confinement conviction to
be vacated where convictions of both criminal confinement and murder, a felony, constituted
double jeopardy, citing Richardson’s “less severe penal consequences” language); Williams
v. State, 892 N.E.2d 666, 669 (Ind. Ct. App. 2008) (ordering Class D felony attempted theft
conviction to be vacated where convictions of both attempted theft and forgery, a Class C
felony, constituted double jeopardy, citing Richardson), trans. denied; Owens v. State, 742
N.E.2d 538, 542 (Ind. Ct. App. 2001) (finding convictions of Class B felony attempted
robbery and Class D felony battery resulting in injury to a law enforcement officer violated
double jeopardy and declining defendant’s request to vacate the attempted robbery conviction
because the battery conviction has less severe penal consequences), trans. denied. In Noble
v. State, 734 N.E.2d 1119 (Ind. Ct. App. 2000), trans. denied, the two convictions found to be
double jeopardy were both Class C felonies and therefore “of equal severity.” Id. at 1125.
The sentences the trial court imposed for the two convictions were of equal length and
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ordered to run concurrently; therefore, “there are no more or less severe penal consequences
for vacating one instead of the other.” Id. at 1126. The court therefore ordered that the
second count be vacated. Id. Thus, the severity of the penal consequences has largely been
determined by the class of crime or by the length of the sentence imposed.1
As the State notes, however, an operating while intoxicated conviction has
consequences in addition to the length of a possible sentence in the form of a license
suspension. However, whether a sanction constitutes a criminal punishment depends on the
purpose served by the sanction: punitive or remedial. Hunter v. State, 802 N.E.2d 480, 483
(Ind. Ct. App. 2004), trans. denied; see Hudson v. U.S., 522 U.S. 93, 98-99 (1997) (“We
have long recognized that the Double Jeopardy Clause does not prohibit the imposition of all
additional sanctions that could, ‘in common parlance,’ be described as punishment. The
Clause protects only against the imposition of multiple criminal punishments for the same
offense[.]”) (citation omitted) (emphasis in original). In Schrefler v. State, 660 N.E.2d 585(Ind. Ct. App. 1996), we examined a defendant’s claim that both having his driver’s license
1
It appears the Richardson court’s exhortation to be “mindful of the penal consequences that the trial
court found appropriate,” 717 N.E.2d at 54, comes into play when a double jeopardy violation can be remedied
by reducing one crime to a less serious form of the same offense. In Smith v. State, 881 N.E.2d 1040 (Ind. Ct.
App. 2008), for instance, the court found the defendant’s convictions for Class B felony robbery and Class B
felony aggravated battery violated double jeopardy because the same evidence was used to establish the
essential injury elements for the elevated robbery charge and the aggravated battery charge. The remedy was to
reverse the Class B felony robbery conviction and remand to the trial court with instructions to enter a
conviction for Class C felony robbery. Noting the trial court originally sentenced the defendant to a maximum
sentence for the Class B felony robbery, we also ordered that the maximum sentence be imposed upon the
Class C felony robbery conviction. Id. at 1048; see also D.B. v. State, 842 N.E.2d 399, 404 (Ind. Ct. App.
2006) (holding true findings for rape and child molesting arising from single incident violated double jeopardy;
in considering which true finding to vacate, the court considered that the juvenile court found it appropriate to
commit the juvenile to the Department of Correction, and vacating the child molesting true finding allowed the
court’s commitment to stand, pursuant to Indiana Code section 31-37-19-9, which allows commitment to the
DOC under conditions satisfied by the true finding of rape).
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suspended and being criminally charged with operating while intoxicated constituted double
jeopardy. We determined the administrative suspension scheme was “designed to promote
the State’s interest in keeping its highways safe from intoxicated drivers” and although “the
suspension of driving privileges has some punitive impact on the offender . . . [it] is merely
incidental to the overriding remedial purpose of the statute.” Id. at 588. Thus, double
jeopardy was not implicated. Id. at 589 (citing cases from numerous other jurisdictions also
concluding that suspension of driving privileges served a legitimate, non-punitive
governmental purpose and did not implicate double jeopardy). As made clear in Schrefler, a
license suspension is not punitive and we do not consider any such suspension in determining
the “penal consequences” of each of Moala’s convictions.
In a similar vein, we note that the State presumably wishes to preserve the operating
while intoxicated conviction because it could serve as a predicate for a Class D felony charge
if Moala is ever again charged with operating while intoxicated. As we do not believe non-
punitive sanctions should be considered as part of the penal consequences of a conviction, we
also do not believe potential future consequences should be considered in determining the
penal consequences of a conviction. Considering future consequences would be speculative
and raises the possibility of disparate treatment in sentencing.2
2
We do note that in H.M. v. State, 892 N.E.2d 679 (Ind. Ct. App. 2008), trans. denied, the court
rejected the State’s argument that regardless of the number of true findings in a juvenile delinquency
proceeding, there is but one finding of delinquency and one disposition and therefore a juvenile cannot face
double jeopardy by noting that although there is only one delinquency disposition, “there may be penal
consequences for an offender later in life relating to these multiple true findings” because a history of juvenile
adjudications may properly be used by a trial court to enhance an adult defendant’s sentence. Id. at 682.
These consequences, however, were considered in the context of determining whether double jeopardy applied
at all; not in determining which true finding should be vacated.
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The State also contends it should have the discretion to determine which conviction
should be vacated upon a finding of double jeopardy. It is true that whether to prosecute at
all and what charges to bring are generally decisions within the prosecutor’s discretion.
Kibbey v. State, 733 N.E.2d 991, 996 (Ind. Ct. App. 2000). And it is also true that when the
prosecuting attorney files a motion to dismiss an information pursuant to Indiana Code
section 35-34-1-13, the trial court has no discretion to deny such motion. Malone v. State,
702 N.E.2d 1102, 1103 (Ind. Ct. App. 1998), trans. denied. Accompanying its response to
Moala’s motion to correct error, the prosecuting attorney made a motion to dismiss the public
intoxication charge. However, Indiana Code section 35-34-1-13 requires the prosecuting
attorney to file its motion to dismiss “at any time before sentencing.” Ind. Code § 35-34-1-
13(a). Moala had already been sentenced when the State made its motion to dismiss and the
trial court was not therefore obligated to grant the motion. Moreover, although the
prosecuting attorney has discretion in charging a defendant, and the trial court has discretion
in sentencing, see Anderson v. State, 961 N.E.2d 19, 32 (Ind. Ct. App. 2012), trans. denied,
our supreme court has made it clear that it is the reviewing court that will determine what is
the appropriate remedy for a double jeopardy violation. See Richardson, 717 N.E.2d at 54.
We therefore do not agree with the State that prosecutorial discretion extends to the
determination of which conviction should be vacated upon a finding of double jeopardy.
Moala was convicted in violation of Article 1, section 14 of public intoxication, a
Class B misdemeanor, and operating a vehicle while intoxicated, a Class C misdemeanor.
The Class C misdemeanor has the less severe penal consequences and we accordingly vacate
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the operating while intoxicated conviction and leave the public intoxication conviction
standing.
Conclusion
Moala’s convictions of both public intoxication and operating a vehicle while
intoxicated based upon a single incident of driving his vehicle on a public street violate the
state constitutional prohibition against double jeopardy. Accordingly, we reverse and remand
with instructions for the trial court to vacate the operating while intoxicated conviction.
Reversed and remanded.
BAILEY, J., and MATHIAS, J., concur.
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