FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JAMES H. VOYLES, JR.                          GREGORY F. ZOELLER
TYLER D. HELMOND                              Attorney General of Indiana
Voyles Zahn & Paul
Indianapolis, Indiana                         MONIKA PREKOPA TALBOT
                                              Deputy Attorney General

                                                                            FILED
                                              Indianapolis, Indiana


                                                                        Jun 27 2012, 8:54 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




FILI MOALA,                                   )
                                              )
      Appellant-Defendant,                    )
                                              )
              vs.                             )     No. 49A02-1109-CR-870
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Shatrese Flowers, Commissioner
                           Cause No. 49F19-1009-CM-68937




                                    June 27, 2012



                             OPINION - FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issue

       Following a bench trial, Fili Moala was found guilty as charged of operating a vehicle

with an alcohol concentration between .08 and .15, a Class C misdemeanor, and public

intoxication, a Class B misdemeanor. He was also found guilty of operating a vehicle while

intoxicated as a Class C misdemeanor rather than the Class A misdemeanor charged by the

State. All charges stemmed from a single incident of Moala operating his vehicle on a public

road. The trial court merged the two operating convictions, entered a judgment of conviction

on operating while intoxicated as a Class C misdemeanor, and sentenced him to sixty days.

The trial court also entered a judgment of conviction on the public intoxication conviction

and sentenced him to 180 days, with the sentences to be concurrent.

       Moala appeals, raising one issue for our review: whether the trial court violated

double jeopardy in entering convictions for both operating a vehicle while intoxicated and

public intoxication when the same evidentiary facts establish both offenses. Moala requests

that the Class C misdemeanor operating a vehicle while intoxicated conviction be vacated.

The State concedes that the two convictions violate double jeopardy; however, the State

requests that the public intoxication conviction be vacated. Concluding the appropriate

remedy for the double jeopardy violation is to vacate the operating while intoxicated

conviction, we reverse and remand.

                               Facts and Procedural History

       Moala was stopped on Illinois Street in Indianapolis, Indiana on September 3, 2010,

for speeding. When the officer approached the vehicle, he smelled the odor of alcohol and


                                             2
noticed that Moala had bloodshot eyes. When the officer asked for identification, Moala first

handed him a credit card. Moala admitted that he had consumed five or six drinks. When

the officer asked Moala to exit the vehicle, Moala was barefoot and kept encroaching on the

officer’s personal space despite the officer’s requests that Moala not approach him. Moala

failed two of three field sobriety tests and a chemical test indicated he had a .10 blood

alcohol content.

       The State charged Moala with operating while intoxicated causing endangerment, a

Class A misdemeanor; operating with a blood alcohol content between .08 and .15, a Class C

misdemeanor; and public intoxication, a Class B misdemeanor. Moala was tried to the

bench, and the trial court found:

       . . . As to Count II, Operating a Vehicle With a Blood Alcohol Concentration,
       [sic] Court finds the Defendant guilty, a Class B Misdemeanor. And as to
       Count III, Public Intoxication, Court finds the defendant guilty of a Class B
       Misdemeanor . . . . As to Count I, operating a Vehicle While Intoxicated,
       Court finds the defendant guilty of a Class C without the endangerment,
       Operating a Vehicle While Intoxicated as a C Misdemeanor.

Transcript of Sentencing Hearing at 7-8. The trial court originally announced that “Count I

and II will merge. As far as sentencing. And Count III, Public Intoxication merges with

Counts I and II.” Id. at 11. Despite stating that all counts would merge into one, the trial

court announced a sentence for both public intoxication and operating while intoxicated.

Moala filed a motion to correct error alleging the trial court erred in merging any of the

counts and that double jeopardy requires the trial court enter a conviction only of public

intoxication, the highest class crime of which Moala was found guilty. The State responded

to the motion to correct error by moving to dismiss the public intoxication count. At a

                                             3
hearing on the motion to correct error, the trial court amended its previous statement by

noting that “Count III should not merge with Count I and II and that the sentence should

remain as set . . . .” Id. at 25. Therefore, the trial court ultimately sentenced Moala as

follows: Count II, operating a vehicle with a blood alcohol concentration between .08 and

.15, was merged with Count I, operating a vehicle while intoxicated as a Class C

misdemeanor lesser-included offense of the Class A misdemeanor charged, and Moala was

sentenced to sixty days for the conviction on Count I. Moala was also sentenced to 180 days

for the conviction on Count III, public intoxication. The sentences were ordered to be served

concurrently, and all but two days of each was suspended. The State withdrew its motion to

dismiss. Moala now appeals.

                                  Discussion and Decision

                               I. Double Jeopardy Violation

       Moala’s opening brief contends the trial court erred in entering a conviction for both

operating a vehicle while intoxicated and public intoxication under the actual evidence test

announced in Richardson v. State, 717 N.E.2d 32 (Ind. 1999).

       Article 1, section 14 of the Indiana Constitution states, “No person shall be put in

jeopardy twice for the same offense.” In Richardson, our supreme court held that “two or

more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana

Constitution, 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.” 717 N.E.2d at 49 (emphasis


                                              4
in original). Two challenged offenses constitute the same offense under the actual evidence

test when a defendant demonstrates based on the actual evidence presented at trial “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 offense.” Id. at 53.

       The evidence presented at Moala’s trial establishes the following facts: on September

3, 2010, Moala was operating his vehicle on a public road in an impaired manner. Moala

argues, and the State concedes, that this evidence established both the operating a vehicle

while intoxicated and public intoxication convictions.        See Brief of Appellee at 6

(“Defendant’s convictions for operating while intoxicated and public intoxication violate his

double jeopardy protections under the Indiana Constitution.”). We agree that the convictions

violate our state constitutional double jeopardy principles. See Smith v. State, 725 N.E.2d

160, 162 (Ind. Ct. App. 2000) (holding double jeopardy violated when trial court necessarily

used evidence that defendant operated his vehicle on a public road while intoxicated to

establish convictions for both operating a vehicle while intoxicated and public intoxication).

Therefore, one of Moala’s two convictions must be vacated.

                                 II. Remedy for Violation

       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.
       If it will not, one of the convictions must be vacated. In the interest of
       efficient judicial administration, 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.

                                              5
Richardson, 717 N.E.2d at 54 (citation omitted). In the Richardson case, the defendant was

convicted of robbery as a Class C felony and battery as a Class A misdemeanor, which our

supreme court found to be a violation of the Indiana Double Jeopardy Clause under the actual

evidence test. “Because both convictions therefore cannot stand, we vacate the conviction

with the less severe penal consequences and leave standing the robbery conviction.” Id. at

55.

       Moala was convicted of public intoxication as a Class B misdemeanor and operating

while intoxicated as a Class C misdemeanor. There is not a less serious form of either

offense, and even if there were, given the facts of this case, reducing either offense would not

remedy the double jeopardy violation. Moala asserts that the lower class offense, operating

while intoxicated, should therefore be vacated. The State, referring to language from our

caselaw about vacating the conviction with the “least severe penal consequences,”

acknowledges that “it would appear that vacat[ing] the class C misdemeanor driving while

intoxicated conviction and keeping the class B misdemeanor public intoxication conviction

would be proper.” Br. of Appellee at 7. However, the State asserts that “this should not be

the end of the analysis” and requests that the public intoxication conviction be vacated. Id.

The State makes two arguments in support of its request. First, the State asserts that the

operating while intoxicated conviction, though a lower class of crime, may have more severe

penal consequences when the suspension of driving privileges attendant to such a conviction

is considered. Second, the State notes that at the motion to correct error hearing, it “made it

clear that if one count were vacated, the State would like that to be the public intoxication

                                               6
count . . .,” id. at 7, and asserts that prosecutorial discretion should exist “with respect to

choosing which conviction to keep in a double jeopardy situation,” id. at 8.

       Our courts have not considered in any detail the phrase “penal consequences.” 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, e.g., Jenkins v. State, 726

N.E.2d 268, 271 (Ind. 2000) (finding felony murder and robbery convictions to violate

double jeopardy and declining defendant’s request to vacate felony murder in favor of

vacating robbery “because it has less severe penal consequences”); Newgent v. State, 897

N.E.2d 520, 529 (Ind. Ct. App. 2008) (ordering Class B criminal confinement conviction to

be vacated where convictions of both criminal confinement and murder, a felony, constituted

double jeopardy, citing Richardson’s “less severe penal consequences” language); Williams

v. State, 892 N.E.2d 666, 669 (Ind. Ct. App. 2008) (ordering Class D felony attempted theft

conviction to be vacated where convictions of both attempted theft and forgery, a Class C

felony, constituted double jeopardy, citing Richardson), trans. denied; Owens v. State, 742

N.E.2d 538, 542 (Ind. Ct. App. 2001) (finding convictions of Class B felony attempted

robbery and Class D felony battery resulting in injury to a law enforcement officer violated

double jeopardy and declining defendant’s request to vacate the attempted robbery conviction

because the battery conviction has less severe penal consequences), trans. denied. In Noble

v. State, 734 N.E.2d 1119 (Ind. Ct. App. 2000), trans. denied, the two convictions found to be

double jeopardy were both Class C felonies and therefore “of equal severity.” Id. at 1125.

The sentences the trial court imposed for the two convictions were of equal length and


                                              7
ordered to run concurrently; therefore, “there are no more or less severe penal consequences

for vacating one instead of the other.” Id. at 1126. The court therefore ordered that the

second count be vacated. Id. Thus, the severity of the penal consequences has largely been

determined by the class of crime or by the length of the sentence imposed.1

        As the State notes, however, an operating while intoxicated conviction has

consequences in addition to the length of a possible sentence in the form of a license

suspension. However, whether a sanction constitutes a criminal punishment depends on the

purpose served by the sanction: punitive or remedial. Hunter v. State, 802 N.E.2d 480, 483

(Ind. Ct. App. 2004), trans. denied; see Hudson v. U.S., 522 U.S. 93, 98-99 (1997) (“We

have long recognized that the Double Jeopardy Clause does not prohibit the imposition of all

additional sanctions that could, ‘in common parlance,’ be described as punishment. The

Clause protects only against the imposition of multiple criminal punishments for the same

offense[.]”) (citation omitted) (emphasis in original). In Schrefler v. State, 660 N.E.2d 585

(Ind. Ct. App. 1996), we examined a defendant’s claim that both having his driver’s license


        1
           It appears the Richardson court’s exhortation to be “mindful of the penal consequences that the trial
court found appropriate,” 717 N.E.2d at 54, comes into play when a double jeopardy violation can be remedied
by reducing one crime to a less serious form of the same offense. In Smith v. State, 881 N.E.2d 1040 (Ind. Ct.
App. 2008), for instance, the court found the defendant’s convictions for Class B felony robbery and Class B
felony aggravated battery violated double jeopardy because the same evidence was used to establish the
essential injury elements for the elevated robbery charge and the aggravated battery charge. The remedy was to
reverse the Class B felony robbery conviction and remand to the trial court with instructions to enter a
conviction for Class C felony robbery. Noting the trial court originally sentenced the defendant to a maximum
sentence for the Class B felony robbery, we also ordered that the maximum sentence be imposed upon the
Class C felony robbery conviction. Id. at 1048; see also D.B. v. State, 842 N.E.2d 399, 404 (Ind. Ct. App.
2006) (holding true findings for rape and child molesting arising from single incident violated double jeopardy;
in considering which true finding to vacate, the court considered that the juvenile court found it appropriate to
commit the juvenile to the Department of Correction, and vacating the child molesting true finding allowed the
court’s commitment to stand, pursuant to Indiana Code section 31-37-19-9, which allows commitment to the
DOC under conditions satisfied by the true finding of rape).

                                                       8
suspended and being criminally charged with operating while intoxicated constituted double

jeopardy. We determined the administrative suspension scheme was “designed to promote

the State’s interest in keeping its highways safe from intoxicated drivers” and although “the

suspension of driving privileges has some punitive impact on the offender . . . [it] is merely

incidental to the overriding remedial purpose of the statute.” Id. at 588. Thus, double

jeopardy was not implicated. Id. at 589 (citing cases from numerous other jurisdictions also

concluding that suspension of driving privileges served a legitimate, non-punitive

governmental purpose and did not implicate double jeopardy). As made clear in Schrefler, a

license suspension is not punitive and we do not consider any such suspension in determining

the “penal consequences” of each of Moala’s convictions.

        In a similar vein, we note that the State presumably wishes to preserve the operating

while intoxicated conviction because it could serve as a predicate for a Class D felony charge

if Moala is ever again charged with operating while intoxicated. As we do not believe non-

punitive sanctions should be considered as part of the penal consequences of a conviction, we

also do not believe potential future consequences should be considered in determining the

penal consequences of a conviction. Considering future consequences would be speculative

and raises the possibility of disparate treatment in sentencing.2


        2
             We do note that in H.M. v. State, 892 N.E.2d 679 (Ind. Ct. App. 2008), trans. denied, the court
rejected the State’s argument that regardless of the number of true findings in a juvenile delinquency
proceeding, there is but one finding of delinquency and one disposition and therefore a juvenile cannot face
double jeopardy by noting that although there is only one delinquency disposition, “there may be penal
consequences for an offender later in life relating to these multiple true findings” because a history of juvenile
adjudications may properly be used by a trial court to enhance an adult defendant’s sentence. Id. at 682.
These consequences, however, were considered in the context of determining whether double jeopardy applied
at all; not in determining which true finding should be vacated.

                                                        9
       The State also contends it should have the discretion to determine which conviction

should be vacated upon a finding of double jeopardy. It is true that whether to prosecute at

all and what charges to bring are generally decisions within the prosecutor’s discretion.

Kibbey v. State, 733 N.E.2d 991, 996 (Ind. Ct. App. 2000). And it is also true that when the

prosecuting attorney files a motion to dismiss an information pursuant to Indiana Code

section 35-34-1-13, the trial court has no discretion to deny such motion. Malone v. State,

702 N.E.2d 1102, 1103 (Ind. Ct. App. 1998), trans. denied. Accompanying its response to

Moala’s motion to correct error, the prosecuting attorney made a motion to dismiss the public

intoxication charge. However, Indiana Code section 35-34-1-13 requires the prosecuting

attorney to file its motion to dismiss “at any time before sentencing.” Ind. Code § 35-34-1-

13(a). Moala had already been sentenced when the State made its motion to dismiss and the

trial court was not therefore obligated to grant the motion. Moreover, although the

prosecuting attorney has discretion in charging a defendant, and the trial court has discretion

in sentencing, see Anderson v. State, 961 N.E.2d 19, 32 (Ind. Ct. App. 2012), trans. denied,

our supreme court has made it clear that it is the reviewing court that will determine what is

the appropriate remedy for a double jeopardy violation. See Richardson, 717 N.E.2d at 54.

We therefore do not agree with the State that prosecutorial discretion extends to the

determination of which conviction should be vacated upon a finding of double jeopardy.

       Moala was convicted in violation of Article 1, section 14 of public intoxication, a

Class B misdemeanor, and operating a vehicle while intoxicated, a Class C misdemeanor.

The Class C misdemeanor has the less severe penal consequences and we accordingly vacate


                                              10
the operating while intoxicated conviction and leave the public intoxication conviction

standing.

                                         Conclusion

       Moala’s convictions of both public intoxication and operating a vehicle while

intoxicated based upon a single incident of driving his vehicle on a public street violate the

state constitutional prohibition against double jeopardy. Accordingly, we reverse and remand

with instructions for the trial court to vacate the operating while intoxicated conviction.

       Reversed and remanded.

BAILEY, J., and MATHIAS, J., concur.




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