                                                                   Aug 26 2015, 9:52 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Valerie Boots                                              Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           Monika Prekopa Talbot
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jesse Wharton,                                            August 26, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1502-CR-85
        v.                                                Appeal from the Marion County
                                                          Superior Court;
                                                          The Honorable Annie Christ-Garcia,
State of Indiana,                                         Judge;
Appellee-Plaintiff.                                       49G24-1407-F6-36995




May, Judge.




Court of Appeals of Indiana | Opinion 49A02-1502-CR-85 | August 26, 2015                  Page 1 of 5
[1]   Jesse Wharton appeals his convictions of level 6 felony operating a vehicle

      while intoxicated with a prior conviction 1 and level 6 felony operating a vehicle

      with an alcohol concentration equivalent (ACE) of .08 or more with a prior

      conviction. 2 Wharton asserts his convictions subjected him to double jeopardy

      because the same act was the basis for both offenses.


[2]   We affirm in part, vacate in part, and remand with instructions.


                                      Facts and Procedural History
[3]   On July 25, 2014, police stopped the car Wharton was driving because the

      license plate was registered to a different car. As he approached the driver, the

      officer noted Wharton “had an odor of an alcohol beverage on his breath, his

      speech was slurred, his eyes were red and watery, he had pure [sic] manual

      dexterity.” (Tr. at 10.) Wharton subsequently failed the Horizontal Gaze

      Nystagmus test, “refused the walk and turn and one leg stand,” (id.), and tested

      .110 grams of alcohol per 210 liters of his breath.


[4]   The State charged Wharton with class A misdemeanor operating a vehicle

      while intoxicated, 3 class C misdemeanor operating a vehicle with an ACE of

      .08 or more, 4 level 6 felony operating a vehicle while intoxicated with a prior




      1
          Ind. Code § 9-30-5-2(a) (2001); Ind. Code § 9-30-5-3(a)(1) (2014).
      2
          Ind. Code § 9-30-5-1(a) (2001); Ind. Code § 9-30-5-3(a)(1) (2014).
      3
          Ind. Code § 9-30-5-2(a) (2001).
      4
          Ind. Code § 9-30-5-1(a) (2001).


      Court of Appeals of Indiana | Opinion 49A02-1502-CR-85 | August 26, 2015   Page 2 of 5
      conviction, and level 6 felony operating a vehicle with an ACE of .08 or more

      with a prior conviction. Wharton pleaded guilty in open court to the felony

      charges, without benefit of a plea agreement. He confirmed the State’s version

      of the facts and agreed he had prior convictions of operating a vehicle while

      intoxicated. The court entered convictions on the two felonies and sentenced

      Wharton to two and a half years for each count, to be served concurrently.


                                      Discussion and Decision
[5]   Wharton was subjected to double jeopardy by the imposition of two sentences

      because the same act was the basis for both offenses. We must therefore vacate

      his conviction of operating a vehicle with an ACE of .08 or more with a prior

      conviction.


[6]   The State’s only argument is that Wharton waived his right to challenge his

      convictions because he entered into a “plea agreement.” (Br. of Appellee at 3.)

      In support, the State cites Mapp v. State, which held “Mapp waived his right to

      challenge his convictions on double jeopardy grounds when he entered his plea

      agreement.” 770 N.E.2d 332, 334 (Ind. 2002). However, in this case Wharton

      did not have a “plea agreement.” Wharton pleaded guilty in open court

      without an agreement that might have brought him some benefit in return. In

      that circumstance, there is no waiver. See McElroy v. State, 864 N.E.2d 392, 396

      (Ind. Ct. App. 2007) (when guilty plea was entered without the benefit of a plea

      agreement, defendant “may raise a double jeopardy argument”).




      Court of Appeals of Indiana | Opinion 49A02-1502-CR-85 | August 26, 2015   Page 3 of 5
[7]   As the State presents no argument as to the merits of Wharton’s double

      jeopardy argument, we will treat this issue as one where no appellee’s brief was

      filed. In such cases, we need not develop an argument for the appellee and we

      apply a less stringent standard of review. Vandenburgh v. Vandenburgh, 916

      N.E.2d 723, 725 (Ind. Ct. App. 2009). We may reverse if the appellant is able

      to establish prima facie error, which is error at first sight, on first appearance, or

      on the face of it. Id. The appellee’s failure to provide argument does not relieve

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

      to determine whether reversal is required. Id.


[8]   Art. 1, sec. 14 of the Indiana Constitution states, in relevant part, “[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.” 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.


[9]   Wharton’s convictions violate the actual evidence test. 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.”

      Richardson, 717 N.E.2d at 53. Police saw Wharton operating a vehicle while he

      was intoxicated. Wharton agreed to a chemical test that revealed he had .110

      grams of alcohol per 210 liters of his breath. As such, both offenses arose from

      the same actions, on the “same date, [at] the same location.” (Tr. at 10) (State’s

      Court of Appeals of Indiana | Opinion 49A02-1502-CR-85 | August 26, 2015      Page 4 of 5
       recitation in open court of the facts).) Under double jeopardy analysis,

       Wharton cannot be convicted of and sentenced for both offenses. See West v.

       State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014) (double jeopardy violation from

       conviction of operating while intoxicated and operating with a blood alcohol

       content of .15 or more remanded for trial court to vacate the latter conviction),

       trans. denied.


[10]   The trial court should have entered only one of the convictions. “When two

       convictions are found to contravene Indiana double jeopardy principles, . . . one

       of the convictions must be vacated.” Owens v. State, 742 N.E.2d 538, 544-45

       (Ind. Ct. App. 2001) (internal citation omitted), trans. denied. “In the interest of

       efficient judicial administration, . . . the reviewing court will make this

       determination[.]” Id. at 545. Therefore, we vacate Wharton’s conviction of

       level 6 operating a vehicle with an ACE of .08 or more with a prior conviction.


                                                  Conclusion
[11]   Wharton’s protection from double jeopardy was violated by two convictions

       based on the same act. Therefore, we affirm his conviction and sentence for

       operating a vehicle while intoxicated, we vacate the conviction of and sentence

       for operating a vehicle with an ACE of .08 or more with a prior conviction, and

       we remand to the trial court to amend its order.


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


       Crone, J., and Bradford, J., concur.

       Court of Appeals of Indiana | Opinion 49A02-1502-CR-85 | August 26, 2015      Page 5 of 5
