                                                                      FILED
                                                                 Jul 26 2016, 9:07 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Peter D. Todd                                              Gregory F. Zoeller
      Elkhart, Indiana                                           Attorney General of Indiana
                                                                 James B. Martin
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jerry W. Young,                                            July 26, 2016
      Appellant/Defendant,                                       Court of Appeals Case No.
                                                                 20A04-1512-CR-2142
              v.                                                 Appeal from the Elkhart Superior
                                                                 Court
      State of Indiana,                                          The Honorable Evan S. Roberts,
      Appellee/Plaintiff/Cross-Appellant.                        Judge
                                                                 Trial Court Cause No.
                                                                 20D01-1504-FA-18



      Bradford, Judge.



                                            Case Summary
[1]   In 2012, Appellant-Defendant Jerry Young raped A.B. In 2015, Young was

      convicted of Class A felony rape, Class A felony criminal deviate conduct, and

      Class D felony intimidation. Young was also found to be a repeat sexual

      Court of Appeals of Indiana | Opinion 20A04-1512-CR-2142 | July 26, 2016                 Page 1 of 8
      offender and a habitual criminal offender. The trial court merged the

      convictions for rape and criminal deviate conduct and sentenced Young to an

      aggregate ninety-year term. On appeal, Young argues that the trial court erred

      by enhancing his rape conviction twice. The State concedes the trial court erred

      in this regard but argues that the trial court should have reduced the criminal

      deviate conduct charge to a lesser-included offense and applied one of the

      enhancements to that conviction. We reverse and remand with instructions.



                             Facts and Procedural History
[2]   On October 16, 2012 at around 1:00 a.m., A.B. arrived home and went to sleep

      on her couch. At around 3:00 a.m., A.B. was awaken by someone knocking on

      her door. Assuming it was one of her friends, A.B. opened the door. Instead, it

      was Young, who pushed his way into her apartment. A.B. did not know

      Young but had seen him before walking near her apartment. Young, who was

      intoxicated, sat down on A.B.’s couch, and A.B. tried to convince him to leave

      to no avail. Young told A.B. he wanted to “play a sexual game.” Tr. p. 144.

      Despite A.B.’s refusal, Young said “We’re going to do this,” and forced A.B. to

      have sexual intercourse with him and to fellate him.


[3]   On April 29, 2015, the State charged Young with Class A felony rape, Class A

      felony criminal deviate conduct, and Class D felony intimidation. The State

      also alleged that Young was a repeat sexual offender and a habitual criminal

      offender. After a jury trial, Young was found guilty as charged and admitted to

      being a repeat sexual offender and a habitual offender. At sentencing, the trial

      Court of Appeals of Indiana | Opinion 20A04-1512-CR-2142 | July 26, 2016   Page 2 of 8
      court merged the convictions for rape and criminal deviate conduct and

      sentenced Young to fifty years for rape and three years for intimidation to be

      served concurrently. The trial court also enhanced Young’s sentence by thirty

      years due to his status as a habitual offender and an additional ten years based

      on his repeat sexual offender status, for an aggregate ninety-year sentence.



                                  Discussion and Decision
[4]   Young argues that the trial court erred by applying two sentence enhancements

      to his rape conviction. The State concedes that the trial court erred in this

      regard. “[A] conviction under a specialized habitual offender statute cannot be

      further enhanced under the general habitual offender statute in the absence of

      explicit legislative direction.” Dye v. State, 972 N.E.2d 853, 857 (Ind. 2012),

      aff’d on reh’g, 984 N.E.2d 625 (Ind. 2013). The Court in Dye also noted that the

      repeat sexual offender statute is a “specialized habitual offender statute.” Id. at

      864.


[5]   The State, however, argues that the trial court erred by merging Young’s

      convictions for rape and criminal deviate conduct. Young did not file a

      response to the State’s argument on this issue. “The failure to respond to an

      issue raised by the appellant is akin to the failure to file a brief. Under such

      circumstances, we may reverse upon a showing of prima facie error on the issue

      which was not addressed.” Nat’l Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 496

      (Ind. Ct. App. 1999) (citations omitted). “‘Although this failure does not

      relieve us of our obligation to correctly apply the law to the facts in the record

      Court of Appeals of Indiana | Opinion 20A04-1512-CR-2142 | July 26, 2016    Page 3 of 8
      in order to determine whether reversal is required, counsel for the appellee

      remains responsible for controverting arguments raised by the appellant.’”

      Elliott v. Rush Mem’l Hosp., 928 N.E.2d 634, 639 (Ind. Ct. App. 2010) (quoting

      Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 837 (Ind. Ct. App. 2005),

      trans. denied).


[6]   The trial court ordered that Young’s convictions be merged based on Ramon v.

      State, 888 N.E.2d 244 (Ind. Ct. App. 2008). “‘Under the rules of statutory

      construction and common law that constitute one aspect of Indiana’s double

      jeopardy jurisprudence, where one conviction is elevated to a class A felony

      based on the same bodily injury that forms the basis of another conviction, the

      two cannot stand.’” Id. (quoting Strong v. State, 870 N.E.2d 442, 443 (Ind.

      2007)). The trial court merged the convictions because both were enhanced to

      A felonies based on the same threatened use of deadly force.


              [T]here are times when a Court has to do a few things that the
              Court does not agree with and, in part, this is one of those times.
              In light of the case of [Ramon] versus the State of Indiana, 888
              NE 2d 244, the Court believes that counts 1 and Count 2 must be
              merged in light of the charging information, file stamped April
              30, 2015. The basis for that is the element of deadly force or the
              imminent threat of deadly force. It appears to the Court that it is
              the same deadly force or imminent threat used in both charges.
              That’s what the law indicates, counts 1 and Count 2 [sic] must be
              merged, otherwise it is considered to be a double jeopardy
              violation.


      Tr. p. 800.



      Court of Appeals of Indiana | Opinion 20A04-1512-CR-2142 | July 26, 2016      Page 4 of 8
[7]   The State argues that the proper remedy to this double jeopardy problem was

      not to merge the convictions but to reduce one of the offending convictions to a

      lesser-included offense. “When two convictions are found to contravene double

      jeopardy principles, a reviewing court may remedy the violation by reducing

      either conviction to a less serious form of the same offense if doing so will

      eliminate the violation.” Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999).

      Specifically, the State contends that the trial court should have reduced Young’s

      conviction for Class A felony criminal deviate conduct to Class B felony

      criminal deviate conduct, which requires only the use or threatened use of force

      rather than the threatened use of deadly force as an element.1 The State further

      argues that there was ample evidence of physical force used by Young in

      forcing A.B. to fellate him distinct from the threatened use of deadly force

      supporting the rape conviction. We agree and remand with instructions that

      the trial court enter judgement of conviction for Class B felony criminal deviate

      conduct. See Kovats v. State, 982 N.E.2d 409, 414 (Ind. Ct. App. 2013)

      (Defendant was convicted of Class D felony OWI causing serious bodily injury

      and Class B felony neglect of a dependent causing serious bodily injury, with

      the same bodily injury used to support both convictions. This court found that




      1
       “(a) A person who knowingly or intentionally causes another person to perform or submit to deviate sexual
      conduct when: (1) the other person is compelled by force or imminent threat of force;…commits criminal
      deviate conduct, a Class B felony.
      (b) An offense described in subsection (a) is a Class A felony if: (1) it is committed by using or threatening the
      use of deadly force.”
      Ind. Code § 35-42-4-2 (2012).

      Court of Appeals of Indiana | Opinion 20A04-1512-CR-2142 | July 26, 2016                              Page 5 of 8
      the trial court’s merger of convictions was insufficient to cure double jeopardy

      violations and the appropriate remedy for such a violation was to vacate the

      judgment for Class D felony OWI and enter a judgment for the lesser-included

      offense of Class A misdemeanor OWI.).


[8]   Upon remedying a double jeopardy issue, “the trial court need not undertake a

      full sentencing reevaluation, but rather the reviewing court will make this

      determination itself, being mindful of the penal consequences that the trial court

      found appropriate.” Richardson, 717 N.E.2d at 54. On remand for

      resentencing, we instruct the trial court to run any sentence imposed on the

      criminal deviate conduct conviction concurrent to Young’s fifty-year sentence

      for rape.


[9]   Additionally, the State argues that the trial court should have enhanced the rape

      conviction under the habitual offender statute and enhanced the criminal

      deviate conduct conviction under the repeat sexual offender statute. Again,

      Young did not reply to the arguments raised by the State. While it is

      permissible to impose multiple habitual offender enhancements on separate

      convictions, generally those enhancements must be run concurrently. In

      Breaston v. State, the Indiana Supreme Court held that “a trial court cannot order

      consecutive habitual offender sentences” even where the second enhanced

      sentence is imposed in an entirely separate proceeding. 907 N.E.2d 992, 994

      (Ind. 2009) (citing Starks v. State, 523 N.E.2d 735, 737 (Ind. 1988)). The Court

      reasoned as follows:



      Court of Appeals of Indiana | Opinion 20A04-1512-CR-2142 | July 26, 2016   Page 6 of 8
               “[T]he power to order consecutive sentences is subject to the rule
               of rationality and limitations in the constitution…. it is apparent,
               from a study of the present statutes, that such statutes are silent
               on the question of whether courts have the authority to require
               habitual offender sentences to run consecutively, when engaged
               in the process of meting out several sentences. In the absence of
               express statutory authorization for such a tacking of habitual
               offender sentences, there is none.”


       Id. (quoting Starks, 523 N.E.2d 736-37).


[10]   We acknowledge a factual distinction between the instant case and those

       situations addressed in Breaston and Starks. In those cases, the Court addressed

       whether two general habitual offender enhancements could be run

       consecutively. Here, we address whether a general habitual offender

       enhancement and a specialized habitual offender enhancement––the repeat

       sexual offender enhancement––can be run consecutively. Despite the

       difference, we see no reason why the rationale of Breaston and Starks should not

       be similarly applied to this case. Just as there is no express statutory

       authorization for stacking general habitual offender enhancements, there is

       likewise no authorization for stacking general and specialized habitual offender

       enhancements. Accordingly, on remand, the trial court should apply the

       habitual offender enhancement to Young’s rape conviction and apply the repeat

       sexual offender enhancement to the criminal deviate conduct conviction, to be

       run concurrently.



                                                 Conclusion
       Court of Appeals of Indiana | Opinion 20A04-1512-CR-2142 | July 26, 2016       Page 7 of 8
[11]   The trial court erred by merging Young’s convictions for rape and criminal

       deviate conduct and by applying two enhancements to a single conviction. On

       remand, we order the trial court to enter judgment of conviction for Class B

       criminal deviate conduct. With regards to sentencing, Young’s fifty-year

       sentence for rape, and thirty-year habitual offender enhancement, remain

       unchanged. Young’s repeat sexual offender enhancement will be attached to

       his criminal deviate conduct conviction with both sentences running concurrent

       to the rape conviction for an aggregate sentence of eighty years.


[12]   The judgment of the trial court is reversed and remanded with instructions.


       Bailey, J., and Altice, J., concur.




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