MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D), this
                                                                              FILED
Memorandum Decision shall not be regarded as                             Nov 21 2017, 10:59 am
precedent or cited before any court except for the
                                                                              CLERK
purpose of establishing the defense of res judicata,                      Indiana Supreme Court
                                                                             Court of Appeals
collateral estoppel, or the law of the case.                                   and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Mark K. Leeman                                         Curtis T. Hill, Jr.
Leeman Law Office and Cass County                      Attorney General of Indiana
Public Defender
                                                       Katherine Cooper
Logansport, Indiana
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Byron Snelbaker,                                           November 21, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           09A05-1704-CR-756

        v.                                                 Appeal from the Cass Superior
                                                           Court
State of Indiana,                                          The Hon. Richard Maughmer,
                                                           Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           09D02-1610-F5-59




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision on Rehearing 09A05-1704-CR-756 | November 21, 2017 Page
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[1]   In a memorandum decision issued on September 5, 2017, we affirmed the

      convictions entered and sentence imposed after Appellant-Defendant Byron

      Snelbaker pled guilty to two counts of Level 5 felony battery. Snelbaker argued

      that the trial court erred in imposing consecutive sentences for his battery

      convictions and that those convictions violated constitutional and common-law

      prohibitions against double jeopardy, arguments we found to be without merit.

      Snelbaker now seeks rehearing, arguing that we did not fully address his

      double-jeopardy claims, specifically his claim that his battery convictions

      violate the double jeopardy clause of the Unites States Constitution. We grant

      rehearing for the limited purpose of doing so now.


[2]   Snelbaker notes that, under federal law, while a knowing and voluntary guilty

      plea generally results in waiver of a double-jeopardy argument, “[s]ome courts

      have noted an exception to the waiver rule applies when a double jeopardy

      claim is so apparent either on the face of the indictment or on the record

      existing at the time of the plea that the presiding judge should have noticed it

      and rejected the defendant’s offer to plead guilty to both charges.” U.S. v. Kurti,

      427 F.3d 159, 162 (10th Cir. 2005). While Snelbaker argues that this case fits

      within the exception to the general rule, neither the charging information nor

      the record at his guilty plea hearing support his claim.


[3]   The charging information alleged that Snelbaker (1) “did knowingly or

      intentionally touch Shonn Parmeter in a rude, insolent, or angry manner, said

      touching being committed with a vehicle” and also (2) “did knowingly or

      intentionally touch Shonn Parmeter, a public safety officer, in a rude, insolent,
      Court of Appeals of Indiana | Memorandum Decision on Rehearing 09A05-1704-CR-756 | November 21, 2017 Page
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      or angry manner while said officer was engaged in the execution of his official

      duties, resulting in bodily injury, pain[.]” Appellant’s App. Vol. II p. 13. The

      charges are not, as Snelbaker claims, “essentially identical on their face[s,]”

      Appellant’s Br. p. 19, and, as such, no double jeopardy violation is apparent on

      the face of the charging information.


[4]   The record generated during the guilty plea hearing also does not help

      Snelbaker. While generating a factual basis for Snelbaker’s guilty plea, the

      prosecutor elicited testimony that Snelbaker attempted to force Officer

      Parmeter’s vehicle from the road by intentionally steering his vehicle into the

      officer’s, causing Officer Parmeter injuries, and that, after being forced into a

      field, Snelbaker again intentionally struck Officer Parmeter’s occupied police

      vehicle with his. As we noted in our original memorandum decision, “[t]he

      factual basis included separate facts supporting each of these convictions.”

      Snelbaker v. State, 2017 WL 3865748, at *3 (Ind. Ct. App. Sept. 5, 2017). As

      with the charging information, then, no double jeopardy violation is apparent

      from the record. In summary, Snelbaker has failed to establish that his two

      battery convictions violate the United States Constitution’s prohibition against

      double jeopardy. While we grant Snelbaker’s petition for the limited purpose of

      addressing his claim, we find it to be without merit, and once again affirm the

      trial court’s judgment in all respects.


      May, J., and Barnes, J., concur.




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