                                                                                        FILED
                                                                                   Oct 04 2016, 11:01 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
ATTORNEY FOR APPELLANT                               ATTORNEYS FOR APPELLEE            Court of Appeals
Marce Gonzalez, Jr.                                  Gregory F. Zoeller                  and Tax Court

Dyer, Indiana                                        Attorney General of Indiana

                                                     Kelly A. Loy
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana




                                           In the
                         Indiana Supreme Court
                                    No. 45S00-1601-LW-32

ROBERT LEWIS, III,
                                                             Appellant (Defendant below),

                                                v.

STATE OF INDIANA,
                                                             Appellee (Plaintiff below).


             Appeal from the Lake County Superior Court, No. 45G03-1104-MR-3
                          The Honorable Diane Ross Boswell, Judge



                                        October 4, 2016

Massa, Justice.


       Robert Lewis, III was convicted by a unanimous jury of murder, murder in the perpetration
of criminal deviate conduct, criminal deviate conduct, and resisting law enforcement. The State
sought a sentence of life without parole pursuant to Indiana Code section 35-50-2-9 (2008). In the
penalty phase, the same jury was subsequently unable to reach a unanimous verdict as to whether
the State had proven its charged aggravating circumstance. The trial court nonetheless sentenced
Lewis to life imprisonment without the possibility of parole on the count of murder in the
perpetration of criminal deviate conduct, an additional three years’ imprisonment for resisting law
enforcement, and vacated the remaining counts. In a previous appeal, we affirmed the convictions
in all respects, but remanded to the trial court for a revised sentencing order as to the judge’s
personal conclusion that life imprisonment was the appropriate sentence. Lewis v. State, 34
N.E.3d 240 (Ind. 2015). The trial court affirmed the sentence on remand, and Lewis again appeals,
on grounds not previously raised, that imposition of a life sentence violated the Sixth Amendment
because the sole aggravating factor supporting the sentence was not determined by the trier of fact
beyond a reasonable doubt during the penalty phase. The State does not contest this previously-
overlooked argument, and agrees that this Court should “reverse the sentence and, as it has done
in the past, remand to the trial court to hold a new sentencing hearing and sentence Lewis to a term
of years.” State’s Br. at 11.


        We agree that our precedent requires that imposition of a sentence of life without parole
was reversible error by the trial court under these circumstances. “When a jury is unable to reach
a unanimous decision as to the existence of an aggravating circumstance and the Sixth Amendment
prohibits the trial judge from imposing a sentence of life without possibility of parole under
subsection 9(f) of the sentencing statute, a new penalty phase trial is required.” Kiplinger v. State,
922 N.E.2d 1261, 1265–66 (Ind. 2010) (footnotes and internal citations omitted). In Kiplinger, it
remained an open question whether the State would seek a new penalty phase trial in order to
maintain its request for a life sentence, and thus remand to the trial court was the appropriate result.
Id. Here, however, the State concedes it will no longer seek a sentence of life without the
possibility of parole against Lewis, though it still requests remand for resentencing to a term of
years. Lewis initially requested that this Court exercise its appellate authority to resentence him
directly to a term of years, but withdrew that request in favor of remand in light of the State’s
concession. But given the length of the prison terms at issue in the absence of a life sentence, and
that Lewis is already 43 years of age, we concur with Lewis’s initial request, and in the interests
of judicial economy exercise our appellate prerogative to resentence him to a term of years. See




                                                   2
Dennis v. State, 908 N.E.2d 209, 213 (Ind. 2009) (converting sentence of life without parole to a
term of 65 years, resulting in total aggregate sentence of 190 years).1


        Lewis was convicted of murder, murder in the perpetration of criminal deviate conduct,
criminal deviate conduct as a Class A felony (since it resulted in serious bodily injury), and
resisting law enforcement as a Class D felony. But we may not give sentences on all four of these
counts without running afoul of the double jeopardy restrictions in the Indiana Constitution, as
there is a reasonable possibility that the jury may have used the same evidentiary facts to convict
Lewis of the essential elements of multiple of these charges. See Gross v. State, 769 N.E.2d 1136,
1139 (Ind. 2002), Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Accordingly, we revise
Lewis’s sentences to 65 years for murder, Indiana Code sections 35-42-1-1(1) (2008) and
35-50-2-3(a) (2008), 20 years for criminal deviate conduct as a Class B felony, Indiana Code
sections 35-42-4-2(a) and 35-50-2-5, sustain his prior sentence of 3 years for resisting law
enforcement, Indiana Code sections 35-44-3-3(b) and 35-50-2-7(a) and vacate his conviction for
felony murder in the perpetration of criminal deviate conduct.2 Moreover, given the depravity of
these crimes (as detailed in our previous opinion, see Lewis, 34 N.E.3d at 242–45), we further
order each of these terms to run consecutively, pursuant to Indiana Code section 35-50-1-2(c)




1
 The Court is fully aware that it rejected an identical argument in Lewis’s first appeal, see Lewis v. State,
34 N.E.3d 240, 249 n.9 (Ind. 2015). But since this matter has already been remanded once, the trial judge
expressed her personal belief on remand that a life sentence would be appropriate (Appellant’s Br. at 15),
and the sentence is being converted to a term of years, we believe the facts in the present appeal are now
much more closely aligned with those in Dennis, warranting direct appellate resentencing.
2
 See Hulfachor v. State, 735 N.E.2d 214, 218 (Ind. 2000) (“[W]hen a defendant stands convicted of murder,
felony murder, and an additional [underlying] felony, the felony murder should be vacated and the murder
conviction should remain. To hold otherwise would permit a person who commits an intentional murder
while committing another felony to use the felony murder rule to escape punishment for the underlying
felony. This simply cannot be.”) (quoting Fuller v. State, 639 N.E.2d 344, 347–48 (Ind. Ct. App. 1994)).



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(2008), for a total term of 88 years. We remand this matter to the trial court with instructions to
impose these sentences, and for all other proceedings consistent with this opinion.

Rush, C.J., and Rucker, David, and Slaughter, JJ., concur.




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