MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                  May 22 2019, 9:45 am
court except for the purpose of establishing
                                                                                   CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark A. Bates                                           Curtis T. Hill, Jr.
Schererville, Indiana                                   Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian L. Paquette,                                      May 22, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-3072
        v.                                              Appeal from the
                                                        Pike Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff                                      Jeffrey L. Biesterveld, Judge
                                                        Trial Court Cause No.
                                                        63C01-1602-F3-73



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3072 | May 22, 2019                           Page 1 of 9
                                          Case Summary
[1]   Brian Paquette appeals the trial court’s judgment on remand following our

      Supreme Court’s decision in Paquette v. State, 101 N.E.3d 234 (Ind. 2018). We

      agree with Paquette that some of the convictions entered on remand cannot

      stand, so we return this matter to the trial court for the entry of a revised

      sentencing order and abstract of judgment.



                            Facts and Procedural History
[2]   The facts of this case are detailed in our Supreme Court’s opinion. Paquette, 101

      N.E.3d at 235-36. We summarize them as follows. On the night of February

      12, 2016, Paquette was hallucinating after using methamphetamine and was

      driving northbound in the southbound lanes of I-69 near Petersburg. When

      Indiana State Trooper James Manning tried to stop him, Paquette crossed the

      median and began driving southbound in the northbound lanes. He collided

      with a car occupied by Stephanie Molinet and Autumn Kapperman and then

      with an SUV occupied by Jason and Samantha Lowe. Molinet, Kapperman

      (who was pregnant), and Jason Lowe were killed, and Samantha Lowe was

      seriously injured.


[3]   The State filed twelve criminal charges against Paquette. As to the three

      deceased victims, the State charged Paquette with three counts of resisting law

      enforcement by fleeing in a vehicle causing death (“resisting causing death”), a

      Level 3 felony (Counts I-III); three counts of operating a vehicle with


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3072 | May 22, 2019   Page 2 of 9
      methamphetamine in his blood causing death (“operating causing death”), a

      Level 4 felony (Counts IV-VI); and three counts of reckless homicide, a Level 5

      felony (Counts VII-IX). Counts I, IV, and VII concerned Jason Lowe, Counts

      II, V, and VIII concerned Molinet, and Counts III, VI, and IX concerned

      Kapperman. Paquette was also charged with operating a vehicle with

      methamphetamine in his blood causing serious bodily injury (“operating

      causing serious bodily injury”), a Level 6 felony, with regard to Samantha

      Lowe (Count XI) and possession of methamphetamine, a Level 6 felony (Count

      XII).1 Paquette agreed to plead guilty on all of these charges but reserved the

      right to ask the court to enter a resisting-causing-death conviction as to only one

      of the deceased victims, with lesser convictions for the other two, on the theory

      that he engaged in only one act of resisting for purposes of Indiana’s resisting-

      law-enforcement statute, Indiana Code section 35-44.1-3-1. The parties briefed

      the issue, and the trial court ruled that three separate convictions and sentences

      are permissible. However, the court also ruled that Paquette would have the

      right to appeal the issue.


[4]   The court entered convictions on all three counts of resisting causing death

      (Counts I-III) and on the charge of operating causing serious bodily injury

      (Count XI). The court merged the seven remaining counts (three counts of




      1
       In Count X, the State charged Paquette with involuntary manslaughter based on the fact that Kapperman
      was pregnant at the time of the collision and her fetus did not survive. That charge was dismissed after
      Kapperman’s doctor opined that the fetus had not “attained viability,” as required under the involuntary-
      manslaughter statute in effect in February 2016. See Ind. Code § 35-42-1-4 (2014).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3072 | May 22, 2019                    Page 3 of 9
      operating causing death, three counts of reckless homicide, and possession of

      methamphetamine) into those four counts. The court imposed the maximum

      sentence of sixteen years for each count of resisting causing death and the

      maximum sentence of two-and-a-half years for operating causing serious bodily

      injury, all consecutive, for a total of fifty-and-a-half years.


[5]   On appeal, this Court agreed with Paquette that his single act of resisting could

      give rise to only one conviction for resisting causing death under Section 35-

      44.1-3-1, even though he caused multiple deaths. Paquette v. State, 79 N.E.3d

      932 (Ind. Ct. App. 2017). As such, we directed the trial court to enter

      convictions and sentences for the lesser offense of operating causing death (a

      Level 4 felony) as to “two of the three deceased victims” (since the statute for

      that offense, Indiana Code section 9-30-5-5, specifically allows for multiple

      convictions when multiple deaths are caused), which would have left in place

      one conviction and sentence for the more serious offense of resisting causing

      death (a Level 3 felony). Id. at 936. Our Supreme Court granted the State’s

      petition to transfer on the resisting-law-enforcement issue but reached the same

      conclusion we had: that a single act of resisting can support only one conviction

      for resisting law enforcement. Paquette, 101 N.E.3d at 241. However, the

      Court’s remand instructions differed slightly from ours. It directed the trial




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3072 | May 22, 2019   Page 4 of 9
      court to enter convictions under the operating-causing-death statute for “all” of

      the deceased victims, not just two of the three. Id. at 242.2


[6]   On remand, the trial court read our Supreme Court’s opinion to mean that

      Paquette could be convicted of one count of resisting causing death and all

      three counts of operating causing death. In an attempt to get to one conviction

      and sentence for resisting causing death, the trial court initially entered separate

      convictions and sentences—this time twelve years—on all three counts of

      resisting-causing-death but stated that the second and third counts “shall

      merge” into the first count. Appellant’s App. Vol. II p. 10. And as directed by

      the Supreme Court, the trial court entered convictions on all three operating-

      causing-death counts (Counts IV-VI). It imposed a sentence of twelve years for

      each of those three counts. The court ordered the four twelve-year sentences

      (one for resisting causing death, three for operating causing death) to run

      consecutive to one another and to the two-and-a-half-year sentence for

      operating causing serious bodily injury (Count XI), resulting in the same

      aggregate sentence as before: fifty-and-a-half years. The court also entered a

      conviction and a two-and-a-half-year sentence for possession of




      2
       During its 2019 session, the General Assembly responded to the Supreme Court’s decision by amending
      Indiana Code section 35-44.1-3-1 to allow for multiple resisting convictions based on a single act of resisting
      when the defendant injures or kills multiple victims. See P.L. 184-2019 § 12.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3072 | May 22, 2019                         Page 5 of 9
      methamphetamine (Count XII) but ordered that sentence to run concurrent

      with the other sentences.3


[7]   Paquette now appeals.



                                 Discussion and Decision
[8]   Paquette raises three issues on appeal. First, he contends that the trial court

      erred by “merging” the second and third resisting-causing-death convictions

      and sentences with the first instead of vacating them. Second, he argues that

      the trial court erred by entering convictions on both Count I (resisting causing

      death) and Count IV (operating causing death) because both charges were based

      on the death of a single victim, Jason Lowe. Third, he asserts that his sentence

      of fifty-and-a-half years is inappropriate in light of the nature of his offenses and

      his character.


[9]   The State concedes error on the first issue. “Merger” does not avoid a double-

      jeopardy problem when convictions and sentences are entered on all the counts

      in question, as occurred here with the three resisting-causing-death counts. See

      Green v. State, 856 N.E.2d 703, 704 (Ind. 2006); Carter v. State, 750 N.E.2d 778,

      781 (Ind. 2001). We therefore remand this matter to the trial court for the entry

      of a revised sentencing order and abstract of judgment indicating that no




      3
        It is unclear why the trial court entered a separate conviction and sentence for possession of
      methamphetamine on remand when it did not do so originally, but Paquette does not challenge that aspect of
      the trial court’s revised judgment.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3072 | May 22, 2019                   Page 6 of 9
       separate convictions or sentences have been entered on the second and third

       counts of resisting causing death (Counts and III).


[10]   The State also concedes error on the second issue. When a defendant’s

       conviction for one crime is enhanced for causing particular additional harm,

       that harm cannot also be used as an enhancement of a separate crime. See, e.g.,

       Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002); Deloney v. State, 938 N.E.2d 724,

       731 (Ind. Ct. App. 2010), reh’g denied, trans. denied. Here, Count I (resisting

       causing death) and Count IV (operating causing death) were both elevated

       based on the death of Jason Lowe, so Paquette cannot be convicted on both

       counts.


[11]   The parties tell us that the way to remedy this problem is to vacate the

       operating-causing-death conviction relating to Jason Lowe, leaving the more

       serious resisting-causing-death conviction in place. In its opinion, the Supreme

       Court did say, “Accordingly, we reverse the trial court as to two of the three

       convictions for felony resisting law enforcement.” Paquette, 101 N.E.3d at 242

       (emphasis added). That sentence implies that convictions for the lesser offense

       of operating causing death should be entered as to only two of the three

       deceased victims, as this Court said in its original opinion. See Paquette, 79

       N.E.3d at 936. However, in the very next sentence of its opinion, the Supreme

       Court specifically directed the trial court to enter convictions under the

       operating-causing-death statute “for all victims.” Paquette, 101 N.E.3d at 242

       (emphasis added). Consistent with that direction, we will not instruct the trial

       court to vacate any of the operating-causing-death convictions.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3072 | May 22, 2019   Page 7 of 9
[12]   Therefore, to avoid a double-jeopardy problem, Paquette’s conviction for

       resisting causing the death of Jason Lowe must be vacated. However, there is

       no reason Paquette cannot be convicted of a count of resisting law enforcement

       that is not enhanced for causing a death. As such, we instruct the trial court to

       enter a conviction under Count I for the reduced offense of resisting law

       enforcement by fleeing in a vehicle (a Level 6 felony, Ind. Code § 35-44.1-3-

       1(b)(1)(A)) with a sentence of two-and-a-half years, to run consecutive to his

       other sentences. The sentencing order and abstract of judgment must be revised

       accordingly. This change will result in a total sentence of forty-one years: two-

       and-a-half years on Count I, twelve years each on Counts IV-VI, and two-and-

       a-half years on Count XI, all consecutive, along with a concurrent sentence of

       two-and-a-half years on Count XII (possession of meth).


[13]   To the extent Paquette would contend that a forty-one-year sentence is

       inappropriate in this case, we disagree. We acknowledge that Paquette had no

       criminal history, that he accepted responsibility by pleading guilty, and that this

       incident occurred shortly after the death of his father. However, the trial court,

       after watching and listening to Paquette at the sentencing hearing, concluded

       that Paquette “lacks remorse for his actions.” Appellant’s App. Vol. II p. 8.

       There was also evidence presented that after the crash Paquette talked with his

       mother about depleting his assets “so that the families wouldn’t take it[.]” Tr.

       Vol. II p. 191. Finally, on at least two occasions in the weeks leading up to this

       incident Paquette drove while hallucinating on meth. Exs. 2, 20. He went to

       the hospital both times but rejected offers for long-term treatment. Exs. 2, 16.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3072 | May 22, 2019   Page 8 of 9
       In short, Paquette was a ticking time bomb, and he knew it. Given this

       evidence and the sheer carnage Paquette caused, we cannot say that a sentence

       of forty-one years is an “outlier” in need of revision under Appellate Rule 7(B).

       See Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008) (“The principal role of

       appellate review should be to attempt to leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each

       case.”).


[14]   Reversed in part and remanded.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3072 | May 22, 2019   Page 9 of 9
