MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           Nov 20 2015, 8:33 am
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.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
David K. Payne                                          Gregory F. Zoeller
Rachel E. Doty                                          Attorney General of Indiana
Braje, Nelson & Janes, LLP
                                                        Lyubov Gore
Michigan City, Indiana                                  Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ryan A. Phelps,                                         November 20, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        46A03-1501-CR-23
        v.                                              Appeal from the LaPorte Superior
                                                        Court
State of Indiana,                                       The Honorable Kathleen B. Lang,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        46D01-1211-MR-548



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 1 of 12
[1]   Ryan Phelps appeals his convictions for Murder,1 a felony, Felony Murder,2 a

      felony, and Robbery,3 a class A felony. Finding that these convictions violate

      the constitutional prohibition against double jeopardy, we remand to the trial

      court with instructions that it vacate Phelps’s felony murder conviction and

      reduce his robbery conviction to a class C felony. We have adjusted Phelps’s

      sentence to accord with these convictions. In all other respects, we affirm the

      judgment of the trial court.


                                                    Facts
[2]   In 2012, Phelps met Gerald Peters, a retired teacher living in Michigan City.

      Phelps was homeless and unemployed at the time, and Peters chose to help

      Phelps by allowing him to live in Peters’s home. Peters, who operated a theater

      in town, also gave Phelps some work to do there. He gave Phelps money and

      bought him things throughout this time.


[3]   After a few months, Peters began to notice that certain items from his home and

      the theater had gone missing. He also noticed that money was missing from his

      wallet. Peters suspected Phelps of stealing and confronted Phelps about it in

      early November 2012. Peters told Phelps that Phelps could no longer live with

      him, but that he could still come by to use the shower when he needed. Phelps

      moved out and went to live with his friend Trevon Walker.



      1
          Ind. Code § 35-42-1-1(1).
      2
          I.C. § 35-42-1-1(2).
      3
          I.C. § 35-42-5-1.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 2 of 12
[4]   A few days later, on November 7, 2012, Phelps, along with Walker, Martell

      Anderson, and M. Joseph Basford, formulated a plan to rob Peters’s home.

      Phelps planned to go over to Peters’s home and tell Peters that he was going to

      use the shower. Phelps would then leave the back door open so that the others

      could come inside, “knock the old man out,” and rob the house. Tr. p. 941.


[5]   Later that day, Phelps met the others outside Peters’s home and went inside by

      himself to take a shower. As planned, he left the back door open and told the

      others to come inside. Walker, Anderson, and Basford came inside and hid in

      the basement while Phelps showered upstairs. Phelps met with them in the

      basement after he had finished showering and told them to wait while he lured

      Peters to the basement.


[6]   Phelps then asked Peters to come down to the basement to help him find his

      cigarettes. When Peters came into the basement, Basford hit him in the face

      with a glass bottle. All four men then began punching Peters in the head and

      stomach. As Peters lay on the ground, Phelps remained with him while the

      other three searched the home for valuables. When Peters started moving and

      trying to stand up, Phelps summoned the others back into the basement and all

      four of them began to beat Peters with a baseball bat. Phelps found a bottle of

      bleach and poured it over Peters’s face and chest.


[7]   Walker, Anderson, and Basford took Peters’s car keys and left the home in

      Peters’s car. They took with them what they had stolen from the house,

      including watches, wallets, credit cards, a cellphone, and a rifle. Phelps


      Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 3 of 12
       remained with Peters in the basement. Around 11:00 p.m., Phelps met with

       others and informed them that he had “finished the job.” Tr. p. 971.


[8]    The next day, after being contacted by worried family and friends, police found

       Peters deceased in his basement. It was later determined that Peters had died as

       a result of blunt force injury to the head. Peters had sustained severe brain

       injury, skull fractures, and lacerations to his head, as well as countless bruises to

       his torso and extremities and chemical burns to his chest.


[9]    Phelps and the others were later arrested. Phelps was charged with murder,

       felony murder, and class A felony robbery. In October 2014, following a week-

       long jury trial, Phelps was found guilty as charged. The trial court entered

       judgments of conviction on all of the counts, but merged the felony murder

       conviction with the murder conviction.


[10]   The trial court sentenced Phelps to sixty-five years for the murder conviction

       and twenty years for the class A felony robbery conviction. The trial court

       chose to run the sentences consecutively in “consideration of the sheer

       ruthlessness and brutality of what took place, the extreme physical and mental

       anguish caused to the victim,” and because there was “no indication that the

       Defendant has taken any responsibility or expressed any remorse.” Appellant’s

       App. p. 129-30. This resulted in a total term of eighty-five years. Phelps now

       appeals.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 4 of 12
                                    Discussion and Decision
                                        I. Double Jeopardy
[11]   Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall

       be put twice in jeopardy for the same offense.” Phelps argues that the trial

       court violated this prohibition by entering judgments of conviction for murder,

       felony murder, and class A felony robbery. We apply a de novo standard of

       review when considering whether a defendant has been placed in double

       jeopardy. Sloan v. State, 947 N.E.2d 917, 920 (Ind. Ct. App. 2011).


[12]   Two offenses are the same offense for purposes of Article 1, section 14 if, “with

       respect to either the statutory elements of the challenged crimes or the actual

       evidence used to convict, the essential elements of one challenged offense also

       establish the essential elements of another challenged offense.” Richardson v.

       State, 717 N.E.2d 32, 49 (Ind. 1999) (emphases original).


[13]   Initially, Phelps and the State agree that the trial court erred in entering

       judgments of conviction for both murder and felony murder. Our Supreme

       Court has made clear that a defendant cannot be convicted of both murder and

       felony murder for a single homicide. Shields v. State, 493 N.E.2d 460, 460 (Ind.

       1986). Although the trial court merged the murder and felony murder

       convictions, “[a] trial court’s act of merging, without also vacating the

       conviction, is not sufficient to cure a double jeopardy violation.” Gregory v.

       State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008). A double jeopardy violation is



       Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 5 of 12
       not remedied by the “practical effect” of concurrent sentences or merger of

       convictions. Id.


[14]   To remedy this violation, Phelps argues that we should remand to the trial court

       with instructions that it vacate his murder conviction. We cannot agree that

       this is the proper remedy. This Court has previously held that, “when a

       defendant stands convicted of murder, felony murder, and an additional

       felony,” as is the case here, “the felony murder should be vacated and the

       murder conviction should remain.” Fuller v. State, 639 N.E.2d 344, 347 (Ind.

       Ct. App. 1994). We observed that:

               [t]o 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. When a person intentionally
               murders a human being while committing another felony,
               punishment for both the killing and the other felony does not
               violate double jeopardy principles.


       Id. at 347-48. We believe that this reasoning is sound and that it applies to the

       facts of this case. Consequently, on remand, the trial court is instructed to

       vacate Phelps’s conviction for felony murder.


[15]   Phelps next argues, and the State once again agrees, that the trial court erred in

       entering judgments of conviction for both murder and robbery as a class A felony.

       Class A felony robbery is an elevated form of robbery in which the robbery




       Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 6 of 12
       “results in serious bodily injury to a person other than the defendant.” I.C. §

       35-42-5-1.4 “A defendant may not be convicted and sentenced for both Murder

       and Robbery (Class A) where the act that is the basis for elevating Robbery to a

       Class A felony is the same act upon which the murder conviction is based.”

       Moore v. State, 652 N.E.2d 53, 60 (Ind. 1995). Here, the State charged Phelps

       with class A felony robbery for robbing Peters after “striking him with a blunt

       object which resulted in serious bodily injury, to wit; death.” Appellant’s App.

       p. 15. Thus, Phelps’s act of killing Peters serves as the basis for both his murder

       conviction and the elevation of his robbery conviction in violation of the double

       jeopardy prohibition.


[16]   The State asks that we remedy this violation by reducing Phelps’s robbery

       conviction to a class B felony. Class B felony robbery is that which “is

       committed while armed with a deadly weapon or results in bodily injury to any

       person other than the defendant.” I.C. § 35-42-5-1. Once again, the double

       jeopardy clause prohibits Phelps’s act of killing Peters from serving as the

       “bodily injury” that would elevate his robbery conviction to a class B felony.

       Id. Here, the State argues that, because the evidence shows that Phelps

       committed multiple acts which inflicted bodily injury upon Peters over a period

       of time, the jury could have found that he committed class B felony robbery and

       then murdered Peters.



       4
        We refer to provisions of the Indiana Criminal Code as they existed when Phelps committed the offense.
       Following amendments that became effective on July 1, 2014, this form of robbery is now a Level 2 felony.
       Similarly, class B felony robbery is now a Level 3 felony.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015         Page 7 of 12
[17]   But while the State may be correct that the jury could have found this, we must

       inquire as to what the jury actually found. Once again, in this case, the State

       charged Phelps with class A felony robbery for robbing Peters after “striking

       him with a blunt object which resulted in serious bodily injury, to wit; death.”

       Appellant’s App. p. 15. The jury found him guilty of this charge. It is therefore

       clear that the jury found Phelps guilty of robbing Peters and causing the injury

       that led to his death.


[18]   However, the jury was not asked to find that Phelps caused any injury to Peters

       that did not result in his death, as would be required to show that Phelps

       committed class B felony robbery prior to murdering Peters. Therefore, having

       not been asked to do so, the jury could not have convicted Phelps in the way

       that the State proposes. And “[a] person cannot be sentenced for a crime for

       which that person has not been convicted.” Kingery v. State, 659 N.E.2d 490,

       496 (Ind. 1995).


[19]   Because a defendant can also commit class B felony robbery if he commits

       robbery “while armed with a deadly weapon,” had the jury found that Phelps

       was armed with a deadly weapon, he could be convicted of murder and class B

       felony robbery without being placed in double jeopardy. Gross v. State, 769

       N.E.2d 1136, 1139-40 (Ind. 2002). But once again, the jury was not asked to

       make this finding. While the trial court instructed the jury on class B felony

       robbery, it made no mention of use of a deadly weapon, saying only that “[t]he

       offense is a class B felony if it results in bodily injury to any person other than a

       defendant.” Tr. p. 1023. Furthermore, unlike other cases in which courts have

       Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 8 of 12
       determined that the jury found a defendant guilty of both class A and class B

       felony robbery, the charging information in this case made no mention of use of

       a deadly weapon, and instead, relied solely on Phelps’s act of killing Peters to

       elevate the charge. See Gross, 769 N.E.2d at 1139.


[20]   In sum, while the jury could conceivably have convicted Phelps of murder and

       class B felony robbery, it was not asked to, and it did not do so. Instead, the

       jury convicted Phelps of class A felony robbery for having killed Peters while

       robbing his home, as was specified in the charge. Appellant’s App. p. 15. The

       double jeopardy clause prohibits us from using Phelps’s act of killing Peters as

       the basis for both the murder charge and the “bodily injury” that would be

       necessary to elevate his robbery offense to a class B felony. I.C. § 35-42-5-1.

       The jury was not asked to find that Phelps had acted to cause any bodily injury

       that was not also the cause of Peters’s death, nor was it asked to find that

       Phelps used a deadly weapon.


[21]   The jury did find, however, that Phelps committed all the elements of class C

       felony robbery, which occurs when a person knowingly or intentionally takes

       property from another person by using, or threatening to use, force, or by

       putting that person in fear. Id. Because a conviction for this class of robbery

       can stand beside a murder conviction without violating the double jeopardy

       clause in this case, on remand, the trial court is instructed to vacate Phelps’s

       conviction for robbery as a class A felony and enter judgment of conviction for

       robbery as a class C felony.



       Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 9 of 12
                                       II. Phelps’s Sentence
[22]   Phelps next argues that his sentence is inappropriate. Indiana Appellate Rule

       7(B) provides that “[t]he Court may revise a sentence authorized by statute if,

       after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” It is the defendant’s burden to persuade us that his sentence is

       inappropriate. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011).


[23]   Because we have found that Phelps’s class A felony robbery conviction must be

       reduced to a class C felony, his sentence will need to be revised. When

       reviewing a sentence under Rule 7(B), we look to the “totality of the penal

       consequences found in a trial court’s sentence.” Davidson v. State, 926 N.E.2d

       1023, 1024 (Ind. 2010). Therefore, in revising Phelps’s sentence, we remain

       mindful of the fact that the trial court found the nature of the offense and his

       character to warrant a total executed term of eighty-five years imprisonment.


[24]   “A person who commits murder shall be imprisoned for a fixed term of

       between forty-five (45) and sixty-five (65) years, with the advisory sentence

       being fifty-five (55) years.” Ind. Code § 35-50-2-3. As to Phelps’s murder

       conviction, the trial court imposed the maximum sentence of sixty-five years.

       The trial court also sentenced Phelps to twenty years for his class A felony

       robbery conviction, but we have determined that this conviction must be

       reduced to a class C felony. “A person who commits a Class C felony . . . shall




       Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 10 of 12
       be imprisoned for a fixed term of between two (2) and eight (8) years, with the

       advisory sentence being four (4) years.” I.C. § 35-50-2-6.


[25]   As to the nature of his offense, Phelps argues that his actions were not

       substantially different from those of the codefendants in this case, who received

       more lenient sentences through plea agreements. However, this argument

       misses the point, as we are concerned here only with the nature of Phelps’s

       offenses, and we need not compare them with those of his codefendants. See

       Dennis v. State, 908 N.E.2d 209, 214 (Ind. 2009). In its sentencing order, the

       trial court found Phelps’s crime to be particularly heinous, noting that:

               Phelps developed a plan to rob the man who had taken him in
               when he had nowhere to stay, and given him a job when he had
               no work or source of income. This was not a senseless act of
               violence, it was a senseless and cruel death by what can only be
               termed torture. The testimony at trial was that it was Phelps who
               lured the victim to the basement. He was there during the initial
               beating with the baseball bat. When Gerald Peters tried to get up
               and get away, Phelps called his co-defendants back to the
               basement so they could beat him again. Phelps stayed in the
               basement the entire time, watching Peters’ suffering and eventual
               death. Photographs of the scene show blood spatters and smears
               of blood throughout the basement, evidence that Gerald Peters
               attempted to get away. Perhaps the most hideous part of this
               terrible death was when the Defendant, Ryan Phelps, poured
               bleach in the face of Mr. Peters.


       Appellant’s App. p. 128-29.


[26]   As to his character, Phelps argues that he had a difficult upbringing and that he

       has struggled with mental illness. The trial court took these circumstances into

       Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 11 of 12
       account. Id. at 128. However, the fact remains that Phelps murdered the very

       person who was trying to help him with his problems. The trial court also

       noted that Phelps refused to accept responsibility for what he had done and had

       not expressed any remorse. Id.


[27]   We cannot say that the trial court erred in imposing elevated, consecutive

       sentences under these circumstances. We find the nature of Phelps’s offense

       particularly deplorable given his relationship with Peters and we agree with the

       trial court that his refusal to accept responsibility or express remorse for his

       crimes portrays a deep lack of character.


[28]   Because Phelps’s robbery conviction must be reduced to a class C felony, his

       sentence must be adjusted accordingly. In light of the fact that the trial court

       saw fit to impose a total sentence of eighty-five years under these circumstances,

       we believe it proper to sentence Phelps to a term of eight years for his class C

       felony robbery conviction, to run consecutively to the term of sixty-five years

       for his murder conviction. This results in a seventy-three-year aggregate term.


[29]   The judgment of the trial court is affirmed in part and reversed in part. The

       cause is remanded to the trial court with instructions to vacate Phelps’s

       conviction for felony murder and class A felony robbery. The trial court is to

       enter judgment of conviction for murder and class C felony robbery and to

       amend the sentence for robbery in accordance with this opinion.


       Bailey, J., and Mathias, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 46A03-1501-CR-23 | November 20, 2015   Page 12 of 12
