Alvin Coleman Carter v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 27 2020, 8:53 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
– Appellate Division
John R. Millikan
Indianapolis, Indiana Angela Sanchez
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alvin Coleman Carter, February 27, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1685
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Therese A.
Appellee-Plaintiff. Hannah, Magistrate
Trial Court Cause No.
49G08-1811-CM-39436
Mathias, Judge.
[1] Following a bench trial, Alvin Coleman Carter (“Carter”) was found guilty of
Class A misdemeanor carrying a handgun without a license, Class B
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misdemeanor disorderly conduct, and Class B misdemeanor public
intoxication, for which the trial court entered judgments of conviction. Carter
argues that his Class B misdemeanor convictions violate double jeopardy and
that resentencing is warranted to correct discrepancies between the trial court’s
oral and written sentencing orders.
[2] We affirm in part and remand with instructions to vacate in part and
resentence.
Facts and Procedural History
[3] Around 7:00 p.m. on November 11, 2018, the Indianapolis Metropolitan Police
Department (“IMPD”) received several 911 reports of shots fired on the
southeast side of Indianapolis. The callers described the sound of multiple
weapons being fired from a white sedan in the parking lot of an apartment
complex. Officer Eric Snowden responded; he located the white sedan and
illuminated it and the three men inside with his spotlight. The front seat
passenger—later identified as Carter—and the back seat passenger appeared to
be making furtive “shoving” movements toward the driver. Tr. p. 7. When
backup arrived, officers ordered the three men to exit the vehicle; as the driver
stepped out of the car, a handgun fell from his lap. Two more handguns were
discovered in the driver’s waistband when he was patted down. No weapons
were discovered on Carter or the other passenger. The driver was licensed to
carry a handgun in public; Carter and the other passenger were not.
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[4] The search and seizure in the parking lot and the attendant yelling drew the
neighbors’ attentions. Carter and the other passenger shouted profanities at the
officers and refused repeated requests to quiet down. The men were belligerent
and visibly intoxicated, smelling of alcohol and using slurred speech. Because a
“hostile” crowd had gathered around the scene, officers arrested the men and
left the scene without searching for shell casings. Tr. p. 13.
[5] On November 12, Carter was charged with Count I, Class A misdemeanor
carrying a handgun without a license; Count II, Class B misdemeanor
disorderly conduct; and Count III, Class B misdemeanor public intoxication. A
bench trial was held on June 19, 2019, at which time the trial court heard
testimony from Officer Snowden and from a gun liaison officer responsible for
processing the weapons recovered at the scene. Carter was found guilty as
charged, and a sentencing hearing was set for one week later. On June 26, the
trial court pronounced Carter’s sentence as follows: for Count I, 365 days of
incarceration with 357 suspended to probation; for Counts II and III, “time
served.” Tr. p. 38.
[6] A conflicting written sentencing order was issued the same day, imposing 180-
day sentences for Counts II and III, with 172 days suspended. Appellant’s App.
p. 12. Whether the 180-day sentences were concurrent or consecutive to the
365-day sentence was not specified. A second written sentencing order was
issued on August 22, imposing consecutive 90-day sentences for Counts II and
III, with 82 and 80 days suspended, respectively. Appealed Order, p. 1. This
appeal followed.
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Double Jeopardy
[7] Carter argues that his convictions for disorderly conduct 1 and for public
intoxication2 violate principles of double jeopardy. He asserts that the evidence
presented to prove he was guilty of public intoxication was the same evidence
presented to prove he was guilty of disorderly conduct, in violation of the
Indiana Constitution. The State disputes that Carter’s convictions were not
proven by unique evidentiary facts. Whether multiple convictions violate
double jeopardy is a question of law that we review de novo. Hines v. State, 30
N.E.3d 1216, 1219 (Ind. 2015). And on appeal, it is the defendant’s burden to
show that his convictions violate his constitutional right to be free from double
jeopardy. Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002).
I. ‘Actual Evidence’ Constitutional Test
[8] The double jeopardy clause of the Indiana Constitution provides that “[n]o
person shall be put in jeopardy twice for the same offense.” Ind. Const. Art. 1, §
14. Multiple convictions are violative of this constitutional protection against
double jeopardy if there is “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
1
As a Class B misdemeanor, defined by statute as “[a] person who recklessly, knowingly, or intentionally . . .
makes unreasonable noise and continues to do so after being asked to stop[.]” Ind. Code § 35-45-1-3(a)(2).
2
Defined by statute as a Class B misdemeanor when “a person [is] in a public place or a place of public resort
in a state of intoxication caused by the person’s use of alcohol [], if the person . . . breaches the peace or is in
imminent danger of breaching the peace[.]” I.C. § 7.1-5-1-3(a)(3).
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offense.” Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999); see also Alexander v.
State, 768 N.E.2d 971 (Ind. Ct. App. 2002), aff’d on reh’g, 772 N.E.2d 476, trans.
denied. Thus, the “actual evidence presented at trial is examined to determine
whether each challenged offense was established by separate and distinct facts.”
Richardson, 717 N.E.2d at 53.
[9] The charging information alleged as to Count II, disorderly conduct, that Carter
“recklessly, knowingly or intentionally [made] an unreasonable noise; and
continued to do so after being asked to stop.” Appellant’s App. p. 51. The State
presented evidence in the form of Officer Snowden’s testimony that Carter
unreasonably yelled profanities and ignored the police officers’ repeated
directions to quiet down. For Count III, public intoxication, the charging
information alleged that Carter was “found at a public place or a place of public
resort, in a state of intoxication caused by the person’s use of alcohol or a
controlled substance [as defined by statute]; and further, [that he] either
breached the peace or was in imminent danger of breaching the peace[.]” Id.
The State presented evidence that Carter smelled of alcohol, had bloodshot
eyes, and slurred his speech while yelling profanities. Officer Snowden testified
that the unreasonable noise Carter made in a public, residential area drew the
attention of neighbors and caused a hostile crowd to gather, in breach of the
peace.
[10] The trial court determined from this evidence that Carter committed disorderly
conduct when he made unreasonable noise and refused directions to stop; and,
he committed public intoxication by being intoxicated in a public area and
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causing a breach or an imminent breach of the peace. The disorderly conduct
offense did not require evidence that Carter was intoxicated, nor did it require
evidence that Carter’s actions breached the peace. Compare Ind. Code § 35-45-1-
3(a)(2), with I.C. § 7.1-5-1-3(a)(3). Thus, these crimes included evidence or facts
not essential to the other, that is to say, each offense required proof of at least
one unique evidentiary fact. Because Carter failed to demonstrate a reasonable
probability that the trial court used the same evidentiary facts to establish both
offenses, we hold that his convictions did not, under the ‘actual evidence’ test,
violate the constitutional prohibition against double jeopardy.
II. Common Law Double Jeopardy
[11] Nevertheless, we adhere to a series of rules of statutory construction and
common law often described as double jeopardy but not governed by the ‘actual
evidence’ constitutional test. Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002).
One of these common law rules prohibits “[c]onviction and punishment for a
crime which consists of the very same act as an element of another crime for
which the defendant has been convicted and punished.” Richardson, 717 N.E.2d
at 55 (Sullivan, J., concurring) (giving the example of a confinement conviction
vacated because it was coextensive with the behavior necessary to establish an
element of a robbery conviction). Carter asserts that his convictions for
disorderly conduct and public intoxication run afoul of this common law rule
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because the act underlying his conviction for the former is the same as the act
that constitutes an element of his conviction for the latter. 3
[12] The act underlying Carter’s conviction for disorderly conduct was his refusal to
stop shouting profanities at police officers. An element of the other crime—
public intoxication—is that the intoxicated individual breaches the peace by his
actions. The act underlying Carter’s conviction for public intoxication was the
very same act as the act underlying his conviction for disorderly conduct: Carter
shouted belligerently at police officers. As a result of his shouting, the State’s
evidence was that a “hostile” crowd of neighbors gathered to see the
commotion, constituting a breach of the peace. Tr. p. 13. The State summarized
the evidence supporting Counts II and III during closing argument:
As to Count Two, Disorderly Conduct; Officer Snowden testified
that while the defendant Mr. Carter was detained he began
yelling profanities. Officers testified that he was very loud, loud
enough for people to empty out into the street and come outside.
It was around 8pm when Officers asked him to quiet down
multiple times, therefore the State has proven that Mr. Carter
knowingly, intentionally, recklessly made an unreasonable noise
and refused to quit after being asked by Officers including Officer
Snowden.
3
We note that in its Appellee’s Brief, the State presented no argument as to the merits of Carter’s common
law double jeopardy argument. We need not develop an argument for the appellee and will apply a less
stringent standard of review to the appellant’s argument. Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 725
(Ind. Ct. App. 2009). The appellee’s failure to provide an argument, however, does not relieve us of our
obligation to correctly apply the law to the facts in order to determine whether vacation due to double
jeopardy is required. Id.
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Count Three, as to Public Intoxication, they were on a public
road when this occurred. [] Officer Snowden noticed signs of
intoxication. He could tell [the other passenger] and Mr. Carter
were both acting belligerent, slurring their speech, eyes were red,
smelled of alcohol, Officer Snowden is an officer that has
received training in detecting intoxication, he has come into
contact with hundreds of intoxicated individuals. He formed an
opinion that [] Mr. Carter was intoxicated. Again, he was on a
public street, based on his refusal to quiet down and disruption
of the neighborhood by creat[ing] the loud scene, he was found
in a public place, was in the state of intoxication and was
breeching [sic] the peace by his unruly behavior.
Tr. pp. 27–28, (emphasis added).
[13] At trial, the State made no further argument nor presented evidence of other
actions taken by Carter to breach the peace. That is, given how this case was
charged and proven, Carter’s conviction for disorderly conduct was based on
the very same act—him shouting profanities—which formed an essential
element of public intoxication: a disturbance resulting in breach of the peace.
Because Carter’s conviction for disorderly conduct is coextensive with the
behavior necessary to establish an element of his conviction for public
intoxication, the common law rule against double jeopardy was violated when
the trial court entered judgments of conviction for both offenses. See Richardson,
717 N.E.2d at 56 (Sullivan, J., concurring) (defendant should not be punished
for the crime of conspiracy where one element of conspiracy “is the very same
act as another crime for which the defendant has been convicted and
punished.”); see also Simmons v. State, 793 N.E.2d 321 (Ind. Ct. App. 2003)
(finding common law double jeopardy violation where act of striking victim
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with a bat was the very same act alleged in support of convictions for battery as
a Class C felony and battery as a Class A misdemeanor).
III. Remedy
[14] The trial court should have entered judgment of conviction for only one of
Carter’s Class B misdemeanor offenses. “When two convictions are found to
contravene Indiana double jeopardy principles . . . one of the convictions must
be vacated.” Owens v. State, 742 N.E.2d 538, 544–45 (Ind. Ct. App. 2001)
(internal citation omitted), trans. denied. 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 Gregory v. State, 885 N.E.2d
697, 703 (Ind. Ct. App. 2008) (remanding to vacate conviction where a double
jeopardy violation occurred and “cannot be remedied by the practical effect of
concurrent sentences or by merger after conviction has been entered.”) (citation
omitted), trans. denied. Here, however, both offenses are Class B misdemeanors
and therefore “of equal severity.” Noble v. State, 734 N.E.2d 1119, 1125 (Ind. Ct.
App. 2000), trans. denied. And, as is discussed supra, due to discrepancies in the
trial court’s sentencing orders, we cannot say with certainty that there are “no
more or less severe penal consequences for vacating one [offense] instead of the
other.” Id. at 1126. Accordingly, we remand this case to the trial court with
instructions to vacate one of Carter’s Class B misdemeanor convictions. If, in
resentencing Carter for Counts II and III, the sentences vary in severity, the
conviction with the less severe consequence should be vacated. See Moala v.
State, 969 N.E.2d 1061 (Ind. Ct. App. 2012) (discussing why Class C
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misdemeanor conviction with more severe penal consequences than Class B
misdemeanor conviction must be vacated in double jeopardy context).
IV. Sentencing Error
[15] Carter argues and the State concedes that remand for resentencing is
appropriate to allow the trial court to correct discrepancies between its
statements at the sentencing hearing and its subsequent written orders. Our
approach to reviewing sentences in non-capital cases is to examine both the
written and oral sentencing statements to discern the findings of the trial court.
Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002). We do not presume the
superior accuracy of an oral sentencing statement; rather, we examine it
alongside the written sentencing statement “to assess the conclusions of the trial
court.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We may credit the
statement that accurately pronounces the sentence or remand for resentencing.
Willey v. State, 712 N.E.2d 434, 446 n.8 (Ind. 1999).
[16] Here, only the sentence imposed for Count I, carrying a handgun without a
license as a Class A misdemeanor, was consistent throughout the sentencing
orders: one year with 357 days suspended to probation. The sentences for
Counts II and III, however, were initially expressed during the sentencing
hearing as consisting of “time served,” and nothing further. Tr. p. 38. Then, in a
sentencing order issued the day of the sentencing hearing, on June 26, 2019, the
trial court imposed for each of Count II and Count III a 180-day sentence with
172 days suspended, but did not specify whether those sentences were to be
served concurrent or consecutive. Appellant’s App. pp. 12–13. Yet a third
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sentencing order, dated August 22, 2019, imposed consecutive 90-day sentences
with 82 and 80 days suspended to probation for Counts II and III, respectively.
[17] This case is an example of an oral sentencing statement of inferior accuracy as
compared to the subsequent written orders. Accordingly, we do not attempt to
credit any one of the three sentencing pronouncements and instead remand for
resentencing. Remand is also warranted to correct the double jeopardy error
that arose from Carter’s convictions for disorderly conduct and public
intoxication, as explained supra.
Conclusion
[18] Carter’s protection from double jeopardy was violated by his convictions for
disorderly conduct and public intoxication, the underlying bases for which
constituted the same act. Therefore, we affirm his conviction for Class A
misdemeanor carrying a handgun without a license and affirm one Class B
misdemeanor conviction. We remand with instructions to vacate the other
Class B misdemeanor conviction and resentence Carter accordingly.
[19] Affirmed in part, vacated in part, and remanded with instructions.
Kirsch, J., and Bailey, J., concur.
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