                                                                           FILED
                                                                      Jun 21 2017, 8:39 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark A. Bates                                              Curtis T. Hill, Jr.
Schererville, Indiana                                      Attorney General of Indiana

Thomas W. Vanes                                            Tyler G. Banks
Merrillville, Indiana                                      Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Brian L. Paquette,                                         June 21, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           63A04-1612-CR-2891
        v.                                                 Appeal from the Pike Circuit Court
                                                           The Honorable Jeffrey L.
State of Indiana,                                          Biesterveld, Judge
Appellee-Plaintiff                                         Trial Court Cause No.
                                                           63C01-1602-F3-373



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 63A04-1612-CR-2891 | June 21, 2017                       Page 1 of 10
                                           Case Summary
[1]   While high on methamphetamine and fleeing from police, Brian Paquette

      collided with two other vehicles, killing three people and seriously injuring

      another. The State filed nine charges against Paquette with regard to the

      deceased victims: three counts each of resisting law enforcement by fleeing in a

      vehicle causing death, operating a vehicle with methamphetamine in his blood

      causing death, and reckless homicide. Paquette agreed to plead guilty to all

      nine charges but reserved the right to argue that only one conviction and

      sentence for resisting (the most serious charge, a Level 3 felony) should be

      entered because all three deaths resulted from a single act of resisting. The trial

      court rejected that argument and entered three convictions and three

      consecutive sentences on the resisting counts (and merged the remaining, lower-

      level counts). Paquette appeals, renewing his argument. Because only one

      conviction is permissible under this Court’s longstanding interpretation of the

      resisting-law-enforcement statute, we remand this matter to the trial court with

      instructions to enter convictions for operating a vehicle with methamphetamine

      in his blood causing death (a Level 4 felony) as to two of the three deceased

      victims and to resentence Paquette accordingly.



                             Facts and Procedural History
[2]   On the night of February 12, 2016, Paquette was high on methamphetamine

      and driving northbound in the southbound lanes of I-69 near Petersburg. When

      Indiana State Trooper James Manning tried to stop him, Paquette crossed the

      Court of Appeals of Indiana | Opinion 63A04-1612-CR-2891 | June 21, 2017   Page 2 of 10
      median and began driving southbound in the northbound lanes. He collided

      with a car occupied by Stephanie Molinet and Autumn Kapperman and then

      with an SUV occupied by Jason and Samantha Lowe. Molinet, Kapperman,

      and Jason Lowe died, and Samantha Lowe was seriously injured.

[3]   The State charged Paquette with three crimes relating to each of the deceased

      victims: resisting law enforcement by fleeing in a vehicle causing death, a Level

      3 felony; operating a vehicle with methamphetamine in his blood causing

      death, a Level 4 felony; and reckless homicide, a Level 5 felony. He was also

      charged with operating a vehicle with methamphetamine in his body causing

      serious bodily injury, a Level 6 felony, with regard to Samantha Lowe, and

      possession of methamphetamine, a Level 6 felony.1 Paquette agreed to plead

      guilty on all of these charges but reserved the right to ask the court to enter only

      one conviction and sentence for the most serious charge, resisting law

      enforcement, because he engaged in only one act of resisting. The parties

      briefed the issue, and the trial court ruled that three separate convictions and

      sentences are permissible. However, the court also ruled that Paquette would

      have the right to appeal the issue.

[4]   The court entered convictions on all three counts of resisting law enforcement

      and on the charge of operating a vehicle with methamphetamine in his body




      1
       The State also charged Paquette with involuntary manslaughter based on the fact that Kapperman was
      pregnant at the time of the collision and her fetus did not survive, but that charge was dismissed after
      Kapperman’s doctor opined that the fetus had not “attained viability,” as required under the involuntary-
      manslaughter statute. See Ind. Code § 35-42-1-4.

      Court of Appeals of Indiana | Opinion 63A04-1612-CR-2891 | June 21, 2017                         Page 3 of 10
      causing serious bodily injury. The court merged the remaining counts (three

      counts of operating a vehicle with methamphetamine in his blood causing

      death, three counts of reckless homicide, and possession of methamphetamine)

      into those four counts. The court imposed the maximum sentence of sixteen

      years for each count of resisting law enforcement and the maximum sentence of

      two-and-a-half years for operating a vehicle with methamphetamine in his body

      causing serious bodily injury, all consecutive, for a total of fifty-and-a-half

      years.

[5]   Paquette now appeals.



                                  Discussion and Decision
[6]   Paquette contends that Indiana’s resisting-law-enforcement statute, Indiana

      Code section 35-44.1-3-1, allows only a single resisting conviction under the

      facts of this case and that the trial court therefore erred by entering three

      convictions and sentences against him. The interpretation of a statute is a

      question of law that we review de novo. State v. Smith, 71 N.E.3d 368, 370

      (Ind. 2017). We agree with Paquette’s reading of the statute and remand this

      matter for the entry of a revised judgment and sentence.2




      2
        Paquette also argues that the sentence imposed by the trial court is inappropriate. Because Paquette’s
      sentence is going to change on remand, we will not address this argument.

      Court of Appeals of Indiana | Opinion 63A04-1612-CR-2891 | June 21, 2017                          Page 4 of 10
[7]   Subsection (a) of section 35-44.1-3-1 sets out the acts that constitute the crime of

      resisting law enforcement:

              A person who knowingly or intentionally:


              (1) forcibly resists, obstructs, or interferes with a law enforcement
              officer or a person assisting the officer while the officer is lawfully
              engaged in the execution of the officer’s duties;


              (2) forcibly resists, obstructs, or interferes with the authorized
              service or execution of a civil or criminal process or order of a
              court; or


              (3) flees from a law enforcement officer after the officer has, by
              visible or audible means, including operation of the law
              enforcement officer’s siren or emergency lights, identified himself
              or herself and ordered the person to stop;


      Ind. Code § 35-44.1-3-1(a). The last sentence of subsection (a) states that

      resisting law enforcement is a Class A misdemeanor “except as provided in

      subsection (b).” Id.


[8]   Subsection (b) then identifies a variety of circumstances that enhance the

      seriousness of the crime, and therefore the sentencing range:

              The offense under subsection (a) is a:


              (1) Level 6 felony if:


                       (A) the offense is described in subsection (a)(3) and the
                       person uses a vehicle to commit the offense; or

      Court of Appeals of Indiana | Opinion 63A04-1612-CR-2891 | June 21, 2017     Page 5 of 10
                           (B) while committing any offense described in subsection
                           (a), the person draws or uses a deadly weapon, inflicts
                           bodily injury on or otherwise causes bodily injury to
                           another person, or operates a vehicle in a manner that
                           creates a substantial risk of bodily injury to another
                           person;


                 (2) Level 5 felony if, while committing any offense described in
                 subsection (a), the person operates a vehicle in a manner that
                 causes serious bodily injury to another person;


                 (3) Level 3 felony if, while committing any offense described in
                 subsection (a), the person operates a vehicle in a manner that
                 causes the death of another person; and


                 (4) Level 2 felony if, while committing any offense described in
                 subsection (a), the person operates a vehicle in a manner that
                 causes the death of a law enforcement officer while the law
                 enforcement officer is engaged in the officer’s official duties.


      Id. at (b).3


[9]   The structure of subsections (a) and (b) is essentially the same as it was in 1990,

      when the statute was codified at Indiana Code section 35-44-3-3 and this Court

      decided Armstead v. State, 549 N.E.2d 400 (Ind. Ct. App. 1990).4 Armstead




      3
          Subsections (c) through (f) are irrelevant to the issue before us.
      4
          In 1990, subsections (a) and (b) of the statute provided:

                 (a) A person who knowingly or intentionally:
                           (1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person
                           assisting the officer while the officer is lawfully engaged in the execution of his duties as an
                           officer;

      Court of Appeals of Indiana | Opinion 63A04-1612-CR-2891 | June 21, 2017                                Page 6 of 10
resisted and injured three officers during one incident and was convicted of

three counts of resisting law enforcement. He appealed, arguing that he could

not “be held liable for more than one count of resisting law enforcement when

the charges stem from a single event.” Id. at 401. We agreed, explaining as

follows:

        The offense of resisting law enforcement is codified at Ind. Code
        35-44-3-3. The offenses set forth in title 35, art. 44, ch. 3 do not
        constitute crimes against the person. Rather, they are
        interferences with governmental operations constituting offenses
        against public administration. A person who violates Ind. Code
        35-44-3-3 harms the peace and dignity of the State of Indiana and
        its law enforcement authority. The harm caused by one incident
        is the same regardless of the number of police officers resisted. It
        is the act of resisting duly constituted authority which the statute
        prohibits, not resisting individual representatives of that
        authority.




                 (2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil
                 or criminal process or order of a court; or
                 (3) flees from a law enforcement officer after the officer has, by visible or audible means,
                 identified himself and ordered the person to stop;
        commits resisting law enforcement, a Class A misdemeanor, except as provided in subsection (b).
        (b) The offense under subsection (a) is a:
                 (1) Class D felony if, while committing it, the person draws or uses a deadly weapon,
                 inflicts bodily injury on another person, or operates a vehicle in a manner that creates a
                 substantial risk of bodily injury to another person; and
                 (2) Class C felony if, while committing it, the person operates a vehicle in a manner that
                 causes serious bodily injury to another person.
Ind. Code § 35-44-3-3 (1988). The “operates a vehicle in a manner that causes the death of another person”
enhancement was added, as subparagraph (b)(3), in 1993. See P.L. 248-1993, § 1.

Court of Appeals of Indiana | Opinion 63A04-1612-CR-2891 | June 21, 2017                              Page 7 of 10
       Id. We added that “unless more than one incident occurs, there may be only

       one charge.” Id. at 402. We have reached the same conclusion numerous times

       since. See, e.g., Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015); Arthur v.

       State, 824 N.E.2d 383, 387 (Ind. Ct. App. 2005), trans. denied, disapproved on

       other grounds by Brock v. State, 955 N.E.2d 195 (Ind. 2011); Nevel v. State, 818

       N.E.2d 1, 5 (Ind. Ct. App. 2004); Miller v. State, 726 N.E.2d 349, 352 (Ind. Ct.

       App. 2000), reh’g denied, summ. aff’d, 753 N.E.2d 1284 (Ind. 2001), reh’g denied;

       Touchstone v. State, 618 N.E.2d 48, 49 (Ind. Ct. App. 1993).


[10]   Notwithstanding this longstanding interpretation of the resisting-law-

       enforcement statute, the State contends that we should read the statute to allow

       for multiple resisting convictions where a single act of resistance leads to the

       injury or death of multiple people. We decline to do so. Compare the resisting

       statute to the operating-while-intoxicated-causing-death statute, Indiana Code

       section 9-30-5-5. Subsection (d) of that statute provides that a person who

       violates it “commits a separate offense for each [victim] whose death is caused

       by the violation[.]” The General Assembly added that provision to the statute

       after this Court held, and our Supreme Court agreed, that without such a

       provision, the operating-while-intoxicated statutes did not permit multiple

       convictions even where the defendant caused multiple injuries or deaths. P.L.

       53-1994, § 6; see also Kelly v. State, 527 N.E.2d 1148 (Ind. Ct. App. 1988), aff’d,

       539 N.E.2d 25 (Ind. 1989). The legislature added a similar provision to the

       arson statute, Indiana Code section 35-43-1-1, after our Supreme Court held

       that the former version allowed only one arson conviction regardless of the

       Court of Appeals of Indiana | Opinion 63A04-1612-CR-2891 | June 21, 2017   Page 8 of 10
       number of people injured. See Ind. Code § 35-43-1-1(e) (“A person who

       commits an offense under subsection (a), (b), (c), or (d) commits a separate

       offense for each person who suffers a bodily injury or serious bodily injury that

       is caused by the violation of subsection (a), (b), (c), or (d).”) (added by P.L. 158-

       2013, § 452); see also Mathews v. State, 849 N.E.2d 578 (Ind. 2006). The

       legislature has thus far decided not to add such a provision to the resisting

       statute, and we will not read one into it.

[11]   The State also cites Whaley v. State, 843 N.E.2d 1 (Ind. Ct. App. 2006), trans.

       denied, which the trial court relied upon in ruling against Paquette. In that case,

       a panel of this Court affirmed two resisting convictions where two officers were

       injured by a single act of resisting. Id. at 14-15. The panel framed the issue as

       one of double jeopardy under the Indiana Constitution, and it is not entirely

       clear whether the defendant made the same statutory-interpretation argument

       that Paquette makes in this case. In any event, to the extent that the Court held

       that the language of the resisting statute permits multiple convictions based on a

       single act of resisting, we disagree.

[12]   Because Paquette engaged in only one act of resisting, he can be convicted and

       sentenced on only one count of resisting law enforcement. We therefore reverse

       the judgment of the trial court and remand this matter for the entry of a revised

       judgment. Paquette acknowledges that two of the three convictions and

       sentences for resisting can be replaced by two convictions and sentences for

       operating a vehicle with methamphetamine in his blood causing death. As

       already discussed, the statute establishing that crime, unlike the resisting statute,

       Court of Appeals of Indiana | Opinion 63A04-1612-CR-2891 | June 21, 2017   Page 9 of 10
       specifically allows for multiple convictions based on a single act of operating a

       vehicle. See Ind. Code § 9-30-5-5(d). On remand, then, the trial court should

       enter convictions under that statute for two of the three deceased victims and

       resentence Paquette accordingly.

[13]   Reversed and remanded.

       Robb, J., concurs.

       Bailey, J., concurs in result without separate opinion.




       Court of Appeals of Indiana | Opinion 63A04-1612-CR-2891 | June 21, 2017   Page 10 of 10
