Melvin Bishop v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any FILED
May 30 2012, 9:04 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MELVIN BISHOP, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1101-CR-1
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Jr., Judge
Cause No. 49G02-0912-FB-102807
MAY 30, 2012
MEMORANDUM OPINION ON REHEARING – NOT FOR PUBLICATION
BAKER, Judge
This matter comes before us on appellant-defendant Melvin Bishop’s petition for
rehearing, following our memorandum decision in Bishop v. State, No. 49A04-1101-CR-
1 (Ind. Ct. App. Sept. 9, 2011), where we affirmed Bishop’s conviction for Rape, a class
B felony, one count of Sexual Misconduct with a Minor, a class B felony, and vacated his
conviction and sentence for Sexual Misconduct with a Minor, a class C felony. Slip op.
at 2.
We grant Bishop’s petition for the limited purpose of acknowledging his
contention that the rape conviction is considered a “crime of violence” in accordance
with Indiana Code section 35-50-1-2, and that the sexual misconduct with a minor
offenses charged in this case are not such crimes within the meaning of the statute
because of the manner in which he was charged. Finally, we agree with Bishop that his
argument in support of concurrent sentences was premised on double jeopardy principles.
A detailed recitation of the underlying facts and procedural history appears in our
original opinion. Following a three-day jury trial, Bishop was convicted of one count of
raping a fourteen-year-old girl, who was a friend of his daughter’s. Bishop was also
found guilty of two counts of sexual misconduct with a minor, a class B felony, and one
count of sexual misconduct with a minor, a class C felony. The trial court sentenced
Bishop to twenty years of incarceration for rape and merged one of the class B felony
sexual misconduct convictions with that count. Slip op. at 6. The trial court also
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sentenced Bishop to ten years on the remaining class B felony sexual misconduct
conviction that was ordered to run consecutively to the rape conviction and to two years
on the class C felony sexual misconduct count that was to run concurrently with the other
sentences. Thus, Bishop was sentenced to an aggregate term of thirty years. Id.
On appeal, Bishop challenged the sufficiency of the evidence with regard to the
rape conviction, and argued that double jeopardy principles precluded convictions and
sentences on both sexual misconduct offenses. Id. at 2.1 Although the majority
concluded that the evidence was sufficient to support Bishop’s rape conviction, the
conviction and sentence for sexual misconduct with a minor, a class C felony, was
vacated on double jeopardy grounds. We also let stand the imposition of consecutive
sentences.2
Although Bishop correctly asserts on rehearing that his argument in favor of
concurrent sentences was predicated on double jeopardy principles, we stand by our
original decision and conclude that the trial court did not abuse its discretion in imposing
consecutive sentences for the multiple offenses that Bishop committed. As we noted in
our original opinion, “the individual acts of sexual misconduct with a minor that were
charged and the rape charge did not need to refer to each other to form separate charges.”
Slip op. at 15. In other words, each charge was supported by different facts and each
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In the alternative, Bishop argued that, assuming the convictions were proper, the trial court should have
ordered the sentences to run concurrently.
2
Judge Brown concurred in part and dissented in part, concluding that the “episodic nature of the crimes
against the single victim in a single confrontation warrants concurrent sentences,” in light of this court’s
opinion in Kocielko v. State, 943 N.E.2d 1282 (Ind. Ct. App. 2011).
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could be referred to without reference to any other. Moreover, we pointed out that our
Supreme Court has determined that a trial court is not necessarily precluded from
ordering consecutive sentences, even when two offenses arise from one episode of
criminal conduct. Hancock v. State, 768 N.E.2d 880 (Ind. 2002). Therefore, a different
result with regard to sentencing is not compelled in this case.
Based on the foregoing, we grant Bishop’s petition for rehearing for the limited
purpose of addressing his arguments and clarifying our analysis. We reaffirm our
original opinion in all respects.
KIRSCH, J., concurs.
BROWN, J., concurs and dissents.
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