G.K. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be May 30 2018, 6:33 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General
Appellate Division
Indianapolis, Indiana Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
G.K., May 30, 2018
Appellant-Respondent, Court of Appeals Case No.
49A02-1711-JV-2540
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn A. Moores,
Appellee-Petitioner Judge
The Honorable Geoffrey A. Gaither,
Magistrate
Trial Court Cause No.
49D09-1706-JD-795
Crone, Judge.
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Case Summary
[1] G.K. appeals true findings for conduct constituting level 6 felony receiving
stolen auto parts and level 6 felony theft if committed by an adult. He argues
that these true findings violate his federal and state constitutional protections
against double jeopardy because he had been previously acquitted of these
counts. We agree, and therefore we vacate the true findings and remand for
resentencing.
Facts and Procedural History
[2] On June 9, 2017, the State filed, and the trial court subsequently approved, a
delinquency petition, alleging that on or about June 8, 2017, G.K. committed
acts that would constitute the following offenses if committed by an adult:
Count 1, level 6 felony receiving stolen auto parts by knowingly or intentionally
receiving John Schott’s motor vehicle, which had been the subject of theft;
Count 2, level 6 felony theft by knowingly or intentionally exerting
unauthorized control over Schott’s vehicle safety seats; and Count 3, class A
misdemeanor criminal trespass by knowingly or intentionally interfering with
the possession or use of Schott’s property without his consent.
[3] On the morning of August 17, 2017, Magistrate Gaither presided over a denial
hearing for G.K. and two other juveniles, D.W. and N.M., who faced the same
three delinquency allegations. After the presentation of evidence, Magistrate
Gaither ruled as follows:
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[A]s to [G.K.], I’m gonna enter a true finding as to the sole count
of criminal trespass. [A]s to [D.W.], I’m going to enter a true
finding as to receiving stolen auto parts, theft, and criminal
trespass. [A]s to [N.M.] true finding as to receiving stolen auto
parts, theft, and criminal trespass.
Tr. Vol. 2 at 33. When the trial court asked the State whether there was
anything else, the deputy prosecutor answered, “No, Your Honor.” Id. at 34.
[4] That afternoon, the trial court issued two orders. One order, the “Order on
Fact Finding Hearing,” designated “Not True” findings for Counts 1 and 2 and
a “True” finding for Count 3. Appellant’s App. Vol. 2 at 61. Consistent with
this order, an entry in the chronological case summary (“CCS”) provides, “3 –
Criminal Trespass (I.C. 35-43-2-2(b)(4)), a Class A Misdemeanor, Petition
170608040 Found True by Trial.” Id. at 11. The other order issued by the trial
court was the “Clarification Order on Fact Finding” (“Clarification Order”),
which provided, “The Court orders this matter scheduled for ruling hearing as
to fact finding to clarify the court’s order on true findings of Counts 1 and 2.”
Id. at 59. Both orders were recommended and signed by Magistrate Gaither
and approved, ordered, and signed by the judge pro tem who was sitting for the
presiding trial court judge. Id. at 59, 61. Also, both orders were recorded in the
CCS. Id. at 11. While the record is not clear as to the sequence of the
execution of the two orders, the only logical conclusion is that the Order on
Fact Finding Hearing was entered before the Clarification Order. This is
because it is logically inconceivable to set a hearing to clarify an order that has
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not been entered. In other words, if the acquittals had never been entered, a
clarification hearing would not have been necessary.
[5] On August 24, 2017, Magistrate Gaither held the ruling hearing, which he
began by announcing, “Ruling on a hearing. Oh yeah. [T]his was my error.”
Supp. Tr. Vol. 2 at 4. He then made the following statement:
We were here on that fact-finding, and at the conclusion, I found
[G.K.] true of a trespass only. I did not have the entirety of the
petition, of all the charges in the petition, and I misread the
petition that I had in front of me. [I]t was my intent to show true
of all the charges that had been filed–I’m trying to find that now.
Here it is. Yeah, I found him true of the misdemeanor of criminal
trespass, and I omitted findings for count 1, receiving stolen auto
parts, a level six felony, and count 2, theft, as a level six felony as
well. [A]t this time, I’m entering true findings as to count[s] one
and two, which I omitted the finding[s] at the conclusion of the
hearing. So, we have a disposition date set already, and I know
that there’s a meeting date set for [G.K.’s mother] to meet with
his probation officer. Now I just really wanted to correct the
record cause I discovered my error after you left, and I apologize
for the inconvenience it has cause[d] you to come back and take
more time off, but I just wanted to make sure that I was in order
in this. [C]ounsel, do you have anything else?
Id.1 G.K.’s counsel objected to the true findings, arguing that the court was
reversing “not true” findings. Id. at 5. Magistrate Gaither responded, “[I] did
not have the charging information in front of me, and I had one that was on a
different date, and I just misread the date. And so, it appears that it was
1
When quoting from the transcript, we have omitted all vocal hesitations.
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another charging information for [G.K.] on a sole count of trespass.” Id.
G.K.’s counsel noted that a not true finding on that count had been entered a
few weeks prior. Magistrate Gaither then continued,
I had the old one in front of me, except for the one that would
relate it to [this] matter, so I–it wasn’t that I found him not true
of the other charges, I didn’t have them in front of me. That’s
probably the downside of not having files, everything on the
chronology, so that’s not entirely accurate that I’m reversing. I
made no finding to the other two charges. I didn’t have ’em
physically in front of me, so I mean, that was an omission, I
think, but not an error. [S]urely–I guess, having–given it to do all
over again, I would have done it differently, I’m sure.
Id. at 5-6.
[6] On October 5, 2017, the trial court issued a dispositional order designating true
findings for all three counts, imposing a suspended commitment to the
Department of Correction, placing G.K. on probation with forty hours of
community service. This appeal ensued.
Discussion and Decision
[7] G.K. argues that the true findings on Counts 1 and 2 violate the protections
against double jeopardy in the Fifth Amendment to the United States
Constitution and Article 1, Section 14 of the Indiana Constitution. “Both the
United States and Indiana constitutions prohibit a second prosecution for the
same offense after an acquittal, a second prosecution for the same offense after
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a conviction, and multiple punishments for the same offense.” Wilcox v. State,
748 N.E.2d 906, 909 (Ind. Ct. App. 2001), trans. denied. “[T]he Double
Jeopardy Clause bars retrial following a court-decreed acquittal, even if the
acquittal is ‘based upon an egregiously erroneous foundation.’” Evans v.
Michigan, 568 U.S. 313, 318 (2013) (quoting Fong Foo v. United States, 369 U.S.
141, 143 (1962)). Whether the true findings on Counts 1 and 2 violate double
jeopardy principles is a question of law, which we review de novo. Grabarczyk
v. State, 772 N.E.2d 428, 432 (Ind. Ct. App. 2002).
[8] According to G.K., he was acquitted of Counts 1 and 2 at the denial hearing as
reflected in the Order on Fact Finding Hearing, and it is of no moment that the
acquittal was erroneous. The State “does not disagree that if an accused has
been acquitted, that verdict is final and he cannot thereafter be convicted of that
offense, even if the acquittal is legally erroneous.” Appellee’s Br. at 8.
However, the State asserts that the trial court did not acquit G.K. of Counts 1
and 2 because it was silent as to those counts when it pronounced its ruling on
criminal trespass. The State further contends that the entry of “Not True”
findings on the Order on Fact Finding Hearing does not reflect what happened
at the denial hearing; the State argues that this constitutes “a clear clerical
error,” which is not what “the caselaw means by an ‘erroneous’ acquittal,” and
that the order should have no preclusive effect. Id. at 10-11.
[9] The threshold question is whether G.K. was acquitted of Counts 1 and 2. After
the evidence was presented at the denial hearing, the court ruled that it would
enter a “true finding as to the sole count of criminal trespass.” Tr. Vol. 2 at 33.
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When the court addressed G.K.’s co-respondents, it found true findings for
“receiving stolen auto parts, theft, and criminal trespass.” Id. The clear
implication of the court’s ruling as to G.K. was that it was entering not true
findings for receiving stolen auto parts and theft. Even if there was any
ambiguity in the court’s ruling, it was resolved by the issuance of the Order on
Fact Finding Hearing, which designated “Not True” findings for Counts 1 and
2. Appellant’s App. Vol. 2 at 61. That order was recommended and signed by
Magistrate Gaither, and it was approved, ordered, and signed by the judge pro
tem. Thus, contrary to the State’s assertion, the “Not True” findings for Counts
1 and 2 entered in the Order on Fact Finding Hearing cannot reasonably be
described as scrivener’s or clerical errors.
[10] An error did indeed occur here, but it was not a clerical error. At the August
24, 2017 ruling hearing, Magistrate Gaither explained that he made an error by
looking at the wrong delinquency petition. The United States Supreme Court
opinion in Evans indicates that an erroneous acquittal is precisely what occurred
here.
[11] There, the State of Michigan charged Evans with arson. At his trial, the trial
court granted his motion for directed verdict based on its conclusion that the
State failed to prove an element of arson which was not actually an element of
arson. The State of Michigan argued that the acquittal should not be an
acquittal for double jeopardy purposes because the trial court found Evans
innocent solely based on the lack of evidence on something that was not an
element on the offense and failed to consider the adequacy of evidence on even
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one actual element of arson. In considering whether the erroneous acquittal
was an acquittal for double jeopardy purposes, the Supreme Court explained:
[A]n acquittal precludes retrial even if it is premised upon an
erroneous decision to exclude evidence, a mistaken
understanding of what evidence would suffice to sustain a
conviction, or a misconstruction of the statute defining the
requirements to convict. In all these circumstances, the fact that
the acquittal may result from erroneous evidentiary rulings or
erroneous interpretations of governing legal principles affects the
accuracy of that determination, but it does not alter its essential
character.
Most relevant here, our cases have defined an acquittal to
encompass any ruling that the prosecution’s proof is insufficient to
establish criminal liability for an offense. Thus an “acquittal”
includes a ruling by the court that the evidence is insufficient to
convict, a factual finding [that] necessarily establishes the
criminal defendant’s lack of criminal culpability, and any other
ruling which relates to the ultimate question of guilt or innocence. These
sorts of substantive rulings stand apart from procedural rulings
that may also terminate a case midtrial, which we generally refer
to as dismissals or mistrials. Procedural dismissals include
rulings on questions that are unrelated to factual guilt or
innocence, but which serve other purposes, including a legal
judgment that a defendant, although criminally culpable, may
not be punished because of some problem like an error with the
indictment.
568 U.S. 313 at 318-20 (citations, quotation marks, and brackets omitted)
(emphases added). Turning to the circumstances in Evans’s case, the Supreme
Court held that “[t]he trial court’s judgment of acquittal resolved the question of
Evans’ guilt or innocence as a matter of the sufficiency of the evidence, not on
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unrelated procedural grounds. That judgment, ‘however erroneous’ it was,
precludes reprosecution on this charge.” Id. at 324.
[12] Here, the effect of the trial court’s ruling at the denial hearing and the Order on
Fact Finding Hearing was to establish that G.K. was not culpable of Counts 1
and 2. We conclude that G.K. was acquitted of Counts 1 and 2, and therefore
the subsequent entry of true findings for those counts violates double jeopardy
principles. See id.; see also State v. Lewis, 543 N.E.2d 1116, 1118 (Ind. 1989) (trial
court’s erroneous grant of Lewis’s motion for judgment on the evidence after
declaring mistrial upon deadlock and dismissal of the jury was nevertheless an
acquittal which terminated Lewis’s jeopardy on the charge); State v. Taylor, 863
N.E.2d 917, 920-21 (Ind. Ct. App. 2007) (although trial court erroneously acted
as thirteenth juror in granting Taylor’s motion for a judgment on the evidence,
“the erroneous entry of acquittal by the trial court acts as an acquittal for double
jeopardy purposes”); State v. Casada, 825 N.E.2d 936, 940 (Ind. Ct. App. 2005)
(“Despite the erroneous judgment on the evidence for Casada, he cannot be
retried because an erroneous entry of acquittal by the trial court acts as an
acquittal for double jeopardy purposes”). Accordingly, we vacate the true
findings for those counts and remand for resentencing.
[13] Vacated and remanded.
Bailey, J., and Brown, J., concur.
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