MEMORANDUM DECISION                                                             FILED
Pursuant to Ind. Appellate Rule 65(D), this                                Mar 07 2017, 9:54 am

Memorandum Decision shall not be                                                CLERK
                                                                            Indiana Supreme Court
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ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Susan D. Rayl                                            Curtis T. Hill, Jr.
Smith Rayl Law Office, LLC                               Attorney General of Indiana
Indianapolis, Indiana                                    Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ivan Jones,                                              March 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1609-CR-2082
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,
                                                         The Honorable Peter Nugent,
Appellee-Plaintiff.                                      Judge Pro-Tempore

                                                         Trial Court Cause No.
                                                         49G06-1510-F6-36148



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017                Page 1 of 5
[1]   Ivan Jones appeals his convictions for operating a vehicle while intoxicated

      with an ACE of .15 or more with a prior conviction and operating a vehicle

      while intoxicated. Jones raises one issue which we restate as whether the

      convictions violate double jeopardy principles. We affirm in part, vacate in

      part, and remand with instructions.


                                      Facts and Procedural History

[2]   On October 12, 2015, Indianapolis Metropolitan Police Officer Tiffany Lamle

      responded to a call from Jones who was concerned about his neighbors

      harassing him. When she arrived at Jones’s residence, Officer Lamle observed

      that Jones smelled of alcohol and had bloodshot eyes, slurred speech, and

      almost an unsteady balance, and she believed Jones was intoxicated and told

      him not to exit his home and not to drive his moped. Officer Lamle went back

      to her vehicle, heard Jones’s moped start a couple of minutes later, and

      observed in her rearview mirror Jones drive the moped around his house and

      down the street. Officer Lamle turned her vehicle around, traveled in the

      direction Jones had been driving, noticed Jones’s moped parked in front of a

      liquor store, and parked her vehicle alongside his moped and waited. A couple

      of minutes later, Jones exited the store and went to mount his moped, Officer

      Lamle observed he was “extremely wobbly while doing so,” and when Jones

      turned toward Officer Lamle’s vehicle and saw her, he said “Oh f---.”

      Transcript at 28. Officer Lamle transported Jones to Indianapolis Metropolitan

      Police Officer Adam Jones for a DUI investigation, and Officer Jones observed

      that Jones had glassy, bloodshot eyes and the smell of alcohol on his breath.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017   Page 2 of 5
      Jones failed the horizontal gaze nystagmus test and the nine-step walk and turn

      test. Jones consented to a certified chemical test, and the result of the test was

      0.172 grams of alcohol per 210 liters of breath.


[3]   The State charged Jones with Count I, operating a vehicle with an ACE of .15

      or more with a prior conviction as a level 6 felony; and Count II, operating a

      vehicle while intoxicated with a prior conviction as a level 6 felony. 1 A jury

      found Jones guilty of operating a vehicle with an ACE of .15 or more as a class

      A misdemeanor in Count I and operating a vehicle while intoxicated as a class

      C misdemeanor in Count II. Jones stipulated that he had a prior conviction for

      driving a vehicle while intoxicated. The court sentenced Jones to two years for

      each of the convictions to be served concurrently. 2


                                                      Discussion

[4]   The issue is whether Jones’s convictions violate double jeopardy principles.

      Jones argues that his convictions violate the double jeopardy clause of the

      Indiana Constitution under the actual evidence test, the same set of evidentiary

      facts proved the essential elements of both crimes, and therefore one of his




      1
        The State’s original information charged Count I as a class A misdemeanor and Count II as a class C
      misdemeanor, and its amended information included an allegation under a second part for each count that
      the offense was a level 6 felony and alleging that Jones had a prior conviction for operating a vehicle while
      intoxicated.
      2
        The court asked Jones if he understood that, “by stipulating to the prior that the enhanced penalty is it
      would make each of them a level 6 felony,” and Jones responded affirmatively. Transcript at 150. Although
      the court’s sentencing order shows Jones was sentenced to two years under both Counts I and II, the
      sentencing order and the chronological case summary appear to indicate that Count II was entered as a class
      C misdemeanor. Because we vacate Count II, we need not address this discrepancy.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017                Page 3 of 5
      convictions must be vacated. The State concedes that Jones’s convictions

      violate double jeopardy, notes that both incidents are based on the exact same

      incident of operating a vehicle, and states that, to remedy the error, this court

      should remand with instructions for the trial court to vacate one of Jones’s

      convictions.


[5]   Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

      shall be put in jeopardy twice for the same offense.” Indiana’s double jeopardy

      clause was intended to prevent the State from being able to proceed against a

      person twice for the same criminal transgression. Wharton v. State, 42 N.E.3d

      539, 541 (Ind. Ct. App. 2015) (citing Richardson v. State, 717 N.E.2d 32, 49 (Ind.

      1999)). A two-part test was developed for determining if multiple convictions

      are permissible—the statutory elements test and the actual evidence test. Id.

      Under the actual evidence test, the “actual evidence presented at trial is

      examined to determine whether each challenged offense was established by

      separate and distinct facts.” Id. (citing Richardson, 717 N.E.2d at 53).


[6]   Jones’s convictions violate the actual evidence test. Officer Lamle observed

      Jones operate a vehicle after noticing that he appeared intoxicated, Jones failed

      the horizontal gaze nystagmus and the nine-step walk and turn tests, and he

      agreed to a certified chemical test which revealed he had .172 grams of alcohol

      per 210 liters of breath. Both offenses arose from the same actions, on the same

      date, and at the same location. Under double jeopardy analysis, Jones cannot

      be convicted of and sentenced for both offenses. See Wharton, 42 N.E.3d at 541

      (holding that the defendant’s convictions for operating a vehicle while

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017   Page 4 of 5
      intoxicated with a prior conviction and operating a vehicle with an ACE of .08

      or more with a prior conviction as level 6 felonies violated the actual evidence

      test); West v. State, 22 N.E.3d 872, 874-875 (Ind. Ct. App. 2014) (holding that

      the defendant’s convictions for operating while intoxicated and operating with a

      blood alcohol content of .15 or more as class D felonies constituted a double

      jeopardy violation), trans. denied. When two convictions are found to

      contravene Indiana double jeopardy principles, one of the convictions must be

      vacated, and in the interest of efficient judicial administration, the reviewing

      court will make this determination. Wharton, 42 N.E.3d at 541 (citation

      omitted). We vacate Jones’s conviction and sentence for operating a vehicle

      while intoxicated under Count II. See id. (vacating one of the defendant’s

      convictions and remanding to the trial court to amend its order); West, 22

      N.E.3d at 875 (remanding with instructions to vacate one of the defendant’s

      convictions).


                                                  Conclusion

[7]   For the foregoing reasons, we affirm Jones’s conviction for operating a vehicle

      with an ACE of .15 or more with a prior conviction as a level 6 felony under

      Count I, vacate his conviction and sentence for operating a vehicle while

      intoxicated under Count II, and remand to the trial court to amend its order.


[8]   Affirmed in part, vacated in part, and remanded with instructions.


      Vaidik, C.J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2082 | March 7, 2017   Page 5 of 5
