Christopher Whirl v. State of Indiana

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 of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRUCE W. GRAHAM GREGORY F. ZOELLER
Lafayette, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
Mar 15 2013, 9:11 am
IN THE
COURT OF APPEALS OF INDIANA
CHRISTOPHER WHIRL, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1206-CR-516
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Thomas H. Busch, Judge
Cause No. 79D02-1106-FB-19
March 15, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Christopher Whirl (Whirl), appeals the convictions entered
and the sentence imposed after he pled guilty to Count I, conspiracy to commit robbery, a
Class B felony, Ind. Code §§ 35-41-5-2; -42-5-1; Counts II-IV, robbery, Class B felonies,
I.C. § 35-42-5-1; Count V, theft, a Class D felony, I.C. § 35-43-4-2; and Counts VI-XII,
criminal confinement, Class B felonies, I.C. § 35-42-3-3.
We affirm in part, reverse in part, and remand to the trial court with instructions to
1) vacate two of the robbery convictions and sentences and resentence Whirl on only one
count of robbery; and 2) enter judgments of conviction and sentences on Counts IX and
X.
ISSUES
Whirl raises two issues on appeal, and we address one: Whether a double
jeopardy violation occurred.1
On Cross-Appeal, the State points out a double jeopardy violation with the three
robbery convictions and argues that the trial court erred in failing to enter judgments of
conviction and sentences for Counts IX and X.
FACTS AND PROCEDURAL HISTORY
On May 24, 2011, twenty-six-year-old Whirl and Xavier Jones entered the Purdue
Employees Federal Credit Union in Lafayette brandishing guns and wearing masks and
1
Whirl also argues that the trial court erred in sentencing him. However, because we remand the case to
the trial court for a vacation of convictions and resentencing, we need not address this issue.
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hooded sweatshirts. The men went to the offices of loan officer Shelby Miller (Miller)
and credit union manager Megan Brown (Brown), pointed guns in the women’s faces,
and ordered them to the lobby area of the credit union. One of the men pointed his gun
around at people inside the credit union and ordered customers Robert Staley and
Michael Preuss to throw their wallets to the floor. The wallets were not taken. At the
same time, the other man pointed his gun at and took cash from credit union cashiers
Maribella Ortiz, Megan Shoaf, and Sarah Roussarie. The men then ran from the credit
union and fled in Whirl’s vehicle. When police stopped the vehicle, Whirl fled on foot
and was later apprehended.
On September1, 2011, the State filed an Information charging Whirl as follows:
Count 1 - Conspiracy to Commit Robbery, a Class B felony;
Count 2 - Robbery of credit union cashier Ortiz while armed with a
deadly weapon, a Class B felony;
Count 3 - Robbery of credit union cashier Shoaf while armed with a
deadly weapon, a Class B felony;
Count 4 - Robbery of credit union cashier Roussarie while armed with a
deadly weapon, a Class B Felony;
Count 5 - Theft, a Class D felony;
Count 6- Criminal confinement of credit union cashier Ortiz while
armed with a deadly weapon, a Class B felony.
Count 7 - Criminal confinement of credit union cashier Shoaf while
armed with a deadly weapon, a Class B felony;
Count 8 - Criminal confinement of credit union cashier Roussarie while
armed with a deadly weapon, a Class B felony;
Count 9 - Criminal confinement of loan officer Miller while armed with
a deadly weapon, a Class B felony;
Count 10 - Criminal confinement of credit union manager Brown while
armed with a deadly weapon, a Class B felony;
Count 11 - Criminal confinement of customer Preuss while armed with a
deadly weapon, a Class B felony;
Count 12 - Criminal confinement of customer Staley while armed with a
deadly weapon, a Class B felony.
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In May 2012, Whirl pled guilty to all Counts without a plea agreement. On May
31, 2012, the trial court sentenced Whirl as follows:
I’m not going to impose a sentence on [C]ount one because I believe that I
should impose a sentence for the robbery rather than the conspiracy so I’ll
impose sentences of fifteen years on . . . [C]ounts two through five. . . . I’m
not going to impose sentence [on Counts 6 through 10] because those
confinements of the credit union employees are part of the robbery of the
credit union. However, I think the confinements of the individuals within
the credit union are separate crimes, [and] I’m gonna impose sentences of
fifteen years on [Counts] eleven and twelve. Two through five are
concurrent to each other. Eleven and twelve are concurrent to each other
but consecutive to counts two through five for a total of thirty years to be
served in the department of correction.
Transcript, p. 15.
Whirl now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
APPEAL
Whirl argues that his convictions for robbery and criminal confinement violate the
constitutional ban against double jeopardy. Specifically, he claims that a double jeopardy
violation occurred when the trial court convicted him of robbing the bank cashiers and
confining the customers. However, a double jeopardy violation occurs when the State
proceeds against a person twice for the same criminal transgression. Johnson v. State,
749 N.E.2d 1103, 1108 (Ind. 2001).
Our review of the evidence reveals that Whirl was convicted of robbing three
credit union cashiers and confining two credit union customers. These were not the same
offenses or criminal transgressions because each offense had a separate victim. See
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Vanzandt v. State, 731 N.E.2d 450, 456 (Ind. Ct. App. 2000), trans. denied. Therefore,
we conclude that Whirl’s convictions for robbery and criminal confinement do not violate
the prohibition against double jeopardy.2
CROSS-APPEAL
On cross-appeal, the State points out that there is a double jeopardy violation with
the three robbery convictions and argues that the trial court erred in failing to enter
judgments of conviction and sentences on Counts IX and X. We address the double
jeopardy violation because it implicates fundamental rights. See Scott v. State, 855
N.E.2d 1068, 1074 (Ind. Ct. App. 2006). Whirl was convicted of three counts of robbery
as Class B felonies for robbing three different bank cashiers. However, under the “single
larceny rule,” there was only one offense. See Taylor v. State, 879 N.E.2d 1198, 1204
(Ind. Ct. App. 2008). Specifically, under the single larceny rule, when several articles of
property are taken at the same time, from the same place, belonging to several persons or
the same person, there is but a single larceny or offense. Id. The rationale behind this
rule is that the taking of several articles at the same time from the same place is pursuant
to a single intent and design. Id. Therefore, if only one offense has been committed,
there may be only one judgment and one sentence. Benberry v. State, 742 N.E.2d 532,
2
Whirl also appears to argue that a double jeopardy violation occurred when the trial court ordered
consecutive sentencing for the confinement convictions of the credit union customers in Counts 11 and
12. However, our review of the sentencing order reveals that the trial court did not order consecutive
sentences for Counts 11 and 12. Rather, the trial court ordered those two sentences to run concurrently to
each other and consecutively to the fifteen-year concurrent sentence imposed for Counts two through five.
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536 (Ind. Ct. App. 2001). Accordingly, we remand this case to the trial court with
instructions to vacate two of Whirl’s robbery convictions and sentences and resentence
Whirl on only one count of robbery.
The State also argues the trial court erred in failing to enter judgments of
conviction and sentences on Counts IX and X, which were the confinement charges
involving loan officer Miller and manager Brown. The trial court correctly observed at
the sentencing hearing that the “confinements of the individuals within the credit union
are separate crimes,” (Tr. p. 15), and should have entered judgments of conviction and
sentences on both Counts. The State is generally precluded from raising such issues on
cross-appeal in accordance with the restrictions that are set forth in Indiana code section
35-38-4-2. However, because we are vacating the two robbery convictions and sentences
and remanding the case for resentencing on the remaining robbery Count, in the interest
of judicial economy, we also instruct the trial court to enter judgments of conviction and
sentences on Counts IX and X.
CONCLUSION
Based on the foregoing, we conclude that a double jeopardy violation occurred
when Whirl was convicted of and sentenced for all three robbery counts. We therefore
remand the case to the trial court with instructions to vacate two of Whirl’s robbery
convictions and sentences and resentence Whirl on one count of robbery. We also
instruct the trial court to enter judgments of conviction and sentences on Counts IX and
X.
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Affirmed in part, reversed in part, and remanded with instructions.
BAKER, J. and BARNES, J. concur
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