      MEMORANDUM DECISION
                                                                          FILED
      Pursuant to Ind. Appellate Rule 65(D), this                    Jun 29 2017, 10:20 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                  CLERK
                                                                      Indiana Supreme Court
      purpose of establishing the defense of res judicata,               Court of Appeals
                                                                           and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Steven Knecht                                             Curtis T. Hill, Jr.
      Vonderheide & Knecht, P.C.                                Attorney General
      Lafayette, Indiana
                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Austin D. Warren,                                        June 29, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               91A04-1611-CR-2607
              v.                                               Appeal from the White Superior
                                                               Court.
                                                               The Honorable Robert B. Mrzlack,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               91D01-1512-F5-142




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Austin D. Warren pleaded guilty to two charges of failure to remain at the

      scene of an accident resulting in death, both Level 5 felonies. Ind. Code § 9-26-



      Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017    Page 1 of 12
      1-1.1 (2015). Warren appeals his convictions and sentence, and we affirm in

      part, reverse in part, and remand.


                                                    Issues
[2]   Warren raises two issues, which we restate as:

              I.       Whether his convictions violate his federal and state
                       constitutional protections against double jeopardy.
              II.      Whether the trial court abused its discretion in imposing
                       consecutive sentences.

[3]   The State raises a separate issue, which we restate as: whether Warren waived

      appellate review of his double jeopardy claims by pleading guilty.


                               Facts and Procedural History
[4]   On the evening of October 11, 2015, Austin Warren and his brother were seen

      drinking alcohol at a bar. Later that evening, as Warren drove his truck in

      White County, he struck a car driven by Deborah Barkas. Barkas’ thirteen-

      year-old daughter, H.O., was in the car. Warren’s truck struck the driver’s side

      of Barkas’ car with sufficient force to push the car off the road and into a ditch,

      where it rolled onto its passenger side and struck a telephone pole before the

      truck collided with it a second time. Warren’s truck was also heavily damaged,

      and an airbag deployed.


[5]   Warren got out of his truck and approached Barkas’ car. He saw a large

      amount of blood. Warren briefly tried to open a car door and then fled on foot,

      pausing only to remove his license plate from his truck.


      Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 2 of 12
[6]   Emergency responders arrived on the scene and extracted Barkas and H.O.

      from the car. Barkas was pronounced dead at the scene. H.O. was airlifted to a

      hospital but later died due to her injuries.


[7]   A police officer found a receipt bearing Warren’s name in the truck. Several

      officers went to Warren’s home. He told the officers he had been drinking at

      home for most of the evening and, when informed that his truck had been

      involved in an accident, claimed it had been stolen. An officer smelled an odor

      of alcoholic beverages on Warren during their conversation. Meanwhile, back

      at the scene of the collision, officers collected DNA material from the truck’s air

      bag. DNA testing of the material revealed a match with Warren’s DNA.


[8]   On December 18, 2015, the State charged Warren with two counts of failure to

      remain at the scene of an accident resulting in death, both Level 5 felonies. On

      June 21, 2016, Warren pleaded guilty to both charges without a plea agreement.

      The court determined that Warren’s criminal history, his high risk to reoffend,

      and the nature and circumstances of the offense were aggravating factors.

      Warren’s remorse and guilty plea were mitigating factors. The court sentenced

      Warren to three years on each count, to be served consecutively, for a total

      sentence of six years. This appeal followed.


                                   Discussion and Decision
                          I. Waiver of Double Jeopardy Claims
[9]   The State argues Warren waived the right to present his double jeopardy claims

      on appeal because he pleaded guilty. Warren responds that when a defendant

      Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 3 of 12
       pleads guilty without a plea agreement, the defendant may raise double

       jeopardy claims on direct appeal.


[10]   In general, a defendant who pleads guilty pursuant to an agreement with the

       State waives the right to raise a double jeopardy claim on appeal. Mapp v. State,

       770 N.E.2d 332, 334 (Ind. 2001). By contrast, this Court has repeatedly held

       that when a defendant pleads guilty without a plea agreement, the defendant

       may raise a double jeopardy claim because he or she did not receive the benefit

       of a bargain with the State. See Kunberger v. State, 46 N.E.3d 966 (Ind. Ct. App.

       2015); Wharton v. State, 42 N.E.3d 539 (Ind. Ct. App. 2015); Graham v. State,

       903 N.E.2d 538 (Ind. Ct. App. 2009); McElroy v. State, 864 N.E.2d 392 (Ind. Ct.

       App. 2007), trans. denied.


[11]   Warren pleaded guilty without a plea agreement and did not receive any

       tangible benefit. The State argues that Warren benefitted because the State

       truncated its investigation, which could have uncovered grounds for additional

       charges. This argument is too speculative to credit. The State further argues

       Warren received a benefit because he received advisory sentences for his

       offenses. Although the trial court determined Warren’s guilty plea was a

       mitigating factor, the court did not single out that factor as justifying the

       advisory sentences. We conclude Warren has not waived his right to present

       his double jeopardy claims on appeal.




       Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 4 of 12
                                         II. Double Jeopardy

[12]   Warren argues one of his convictions should be vacated because he is being

       punished twice for committing only one wrong. The State contends two

       convictions are appropriate because two lives were lost.


[13]   Warren raises claims under the federal and state constitutions, but we address

       only the Indiana constitutional claim because it is dispositive. We review de

       novo whether a defendant’s convictions subject him or her to double jeopardy.

       Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005). Article one,

       section fourteen of the Indiana Constitution provides, in relevant part, “No

       person shall be put in jeopardy twice for the same offense.” The Indiana double

       jeopardy clause guards “against multiple punishments for the same offense in a

       single trial.” Wood v. State, 999 N.E.2d 1054, 1065 (Ind. Ct. App. 2013), trans.

       denied. Two or more offenses are the same offense in violation of article one,

       section fourteen 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. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).


[14]   At the time Warren committed his offenses, the governing statute provided, in

       relevant part:

               (a) The operator of a motor vehicle involved in an accident shall
               do the following:
               (1) immediately stop the operator’s motor vehicle:
               (A) at the scene of the accident; or

       Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 5 of 12
        (B) as close to the accident as possible in a manner that does not
        obstruct traffic more than is necessary.
        (2) Remain at the scene of the accident until the operator does
        the following:
        (A) Gives the operator’s name and address and the registration
        number of the motor vehicle the operator was driving to any
        person involved in the accident.
        (B) Exhibits the operator’s driver’s license to any person involved
        in the accident or occupant of or any person attending to any
        vehicle involved in the accident.
        (3) If the accident results in the injury or death of another person,
        the operator shall, in addition to the requirements of subdivisions
        (1) and (2):
        (A) provide reasonable assistance to each person injured in or
        entrapped by the accident, as directed by a law enforcement
        officer, medical personnel, or a 911 telephone operator; and
        (B) as soon as possible after the accident, immediately give notice
        of the accident, or ensure that another person gives notice of the
        accident, by the quickest means of communication to one (1) of
        the following:
        (i) The local police department, if the accident occurs within a
        municipality.
        (ii) The office of the county sheriff or the nearest state police post,
        if the accident occurs outside a municipality.
        (iii) A 911 telephone operator.
        *****
        (b) An operator of a motor vehicle who knowingly or
        intentionally fails to comply with subsection (a) commits leaving
        the scene of an accident, a Class B misdemeanor. However, the
        offense is:
        *****



Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 6 of 12
               (3) a Level 5 felony if the accident results in the death of another
               person . . . .

       Ind. Code § 9-26-1-1.1.


[15]   In Wood v. State, Wood challenged his three convictions for failure to remain at

       the scene of a boating accident resulting in death or injury, claiming he was

       punished multiple times for one offense. Wood’s boat had collided with

       another boat, killing two occupants and injuring one. A panel of this Court

       reviewed the governing statute in comparison with Indiana Code section 9-26-

       1-1.1 and concluded the wrongful act targeted by both statutes was leaving the

       scene of the accident, rather than “injury to a person or damage to a vehicle.”

       999 N.E.2d at 1065. The Court concluded Wood’s act of leaving the scene

       could support only one conviction and remanded with instructions to the trial

       court to dismiss two of the three convictions.


[16]   The holding in Wood relied heavily on the Court’s holding in Nield v. State, 677

       N.E.2d 79 (Ind. Ct. App. 2005). In that case, Nield was convicted of two

       counts of failure to stop after an accident involving injury or death. Nield

       struck two motorcyclists with her car, and she claimed the two convictions

       violated her rights against double jeopardy because there was only one accident.

       A panel of this Court considered a predecessor statute of Indiana Code section

       9-26-1-1.1, determining the statute did not frame a motorist’s duty “in terms of

       the number of vehicles involved or the number of persons injured.” 677 N.E.2d

       at 82. The Court noted, “Had the legislature chosen to impose separate duties

       for each vehicle or person injured in such an accident, it could have done so.

       Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 7 of 12
       However, we discern no such intent in the language of the statute.” Id. Both

       convictions could not stand because Nield was involved in only one accident.


[17]   In the current case, the version of Indiana Code section 9-26-1-1.1 that is

       applicable to Warren’s offenses requires a defendant to perform certain duties

       upon the occurrence of an accident. Like the statutes at issue in Wood and

       Nield, Indiana Code section 9-26-1-1.1 imposes a duty to remain at the scene of

       “an accident,” regardless of the number of persons injured or killed. Warren

       was involved in only one “accident” for purposes of the statute, and he could

       not be convicted twice for leaving the scene of a single accident.


[18]   The General Assembly recently amended Indiana Code section 9-26-1-1.1 to

       reframe a motorist’s duties and liabilities under the statute. The new

       paragraphs of Indiana Code section 9-26-1-1.1 take effect on July 1, 2017:

               (c) An operator of a motor vehicle who commits an offense under
               subsection (b)(1), (b)(2), (b)(3), or (b)(4) commits a separate
               offense for each person whose bodily injury or death is caused by
               the failure of the operator of the motor vehicle to comply with
               subsection (a).
               (d) A court may order terms of imprisonment imposed on a
               person convicted of more than one (1) offense described in
               subsection (b)(1), (b)(2), (b)(3), or (b)(4) to run consecutively.
               Consecutive terms of imprisonment imposed under this
               subsection are not subject to the sentencing restrictions set forth
               in IC 35-50-1-2(c) through IC 35-50-1-2(d).

       2107 Ind. Acts 1000. It appears the General Assembly is attempting through

       this amendment to resolve the double jeopardy issues raised by the prior

       versions of Indiana Code section 9-26-1-1.1. However, we must apply the

       Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 8 of 12
       version of the statute that was in effect when Warren committed his offenses

       and, per the holdings in Wood and Nield, Warren’s convictions violate his

       Indiana constitutional protection against double jeopardy.


[19]   The State argues it is well-established that a criminal act that results in multiple

       victims does not implicate double jeopardy. Yet, it is also well-established that

       “legislative intent in enacting a statute is the key consideration when

       determining whether the Double Jeopardy Clause protects against multiple

       punishments for the same offense under a particular statute.” Nield, 677 N.E.2d

       at 81. We have applied the plain language of Indiana Code section 9-26-1-1.1,

       viewing it as a whole, and the offense set forth in that statute focuses on leaving

       the scene of “an accident,” not causing injuries or death to multiple victims.

       We remand with instructions to vacate one of Warren’s convictions and

       resentence him accordingly.


                                              III. Sentencing

[20]   Warren argues the trial court cited an improper aggravating circumstance and

       made inappropriate statements while imposing consecutive sentences. The

       State responds that the court acted well within its discretion. We choose to

       address these issues even though we are reversing one of Warren’s convictions

       and remanding for resentencing because these issues may arise again during

       resentencing.


[21]   When a trial court sentences a defendant for a felony, the court must provide “a

       statement of the court’s reasons for selecting the sentence that it imposes” if the

       Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 9 of 12
       court finds aggravating or mitigating circumstances. Ind. Code § 35-38-1-3

       (1983). Sentencing decisions rest within the sound discretion of the trial court

       and, if a sentence is within the statutory range, it is subject to review only for an

       abuse of discretion. Barker v. State, 994 N.E.2d 306, 311 (Ind. Ct. App. 2013),

       trans. denied. In the context of sentencing, a trial court may abuse its discretion

       by: (1) failing to enter a sentencing statement at all; (2) entering a sentencing

       statement that explains reasons for the sentence, but the record does not support

       the reasons; (3) omitting sentencing factors that are clearly supported by the

       record and advanced for consideration; or (4) stating reasons that are improper

       as a matter of law. See Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007),

       clarified on reh’g, 875 N.E.2d 218 (2007).


[22]   The trial court determined that the nature and circumstances of the offenses

       were an aggravating circumstance. Tr. Vol. 2, pp. 52-56. The nature and

       circumstances of an offense may appropriately be considered as an aggravating

       circumstance if the trial court takes into consideration facts not needed to prove

       the elements of the offense. Hall v. State, 870 N.E.2d 449, 464 (Ind. Ct. App.

       2007), trans. denied.


[23]   During a discussion of the circumstances of the offenses, the trial court noted

       “the loss of life, the failure to render any treatment or help, the failure to report

       the crime.” Tr. Vol. 2, p. 56. These factors appear to be elements of the

       offenses. Ind. Code § 9-26-1-1.1. The court also noted the loss of two lives was

       “reflected in the level of the offense.” Id. at 54. The court further stated H.O.

       was still alive when emergency responders arrived at the scene, and a prompt

       Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 10 of 12
       report of the collision might have saved her life. In addition, the court noted

       Warren was drinking prior to the accident and took steps to conceal his

       involvement after the fact by claiming his truck was stolen. Viewing the court’s

       statement as a whole, the court properly considered facts not needed to prove

       the elements of the offenses and did not abuse its discretion by citing the nature

       and circumstances of the offenses as an aggravating factor. See Gomillia v. State,

       13 N.E.3d 846, 853 (Ind. 2014) (nature and circumstances of offense was a

       valid aggravating factor even if a component of the factor was improper).


[24]   Next, Warren claims the court, in imposing the sentence, stated reasons that are

       improper as a matter of law. He argues the court was using the hearing to

       “send a personal philosophical message.” Appellant’s Br. p. 30. We disagree.

       During the hearing, the court opined that the sentence for the offense at issue

       here is far too low, claiming “the legislature has greatly devalued human life.”

       Tr. Vol. 2, p. 53. The court nonetheless further stated it is bound by the

       maximum penalty and that the legislature determines the range of penalties for

       criminal offenses. Further, the court did not impose the maximum sentence on

       Warren, choosing instead to impose consecutive advisory sentences. See Ind.

       Code § 35-50-2-6 (2014) (three years is the advisory sentence for Level 5 felony).


[25]   Warren also argues the trial court punished him for the offense of driving while

       intoxicated, even though he was not charged with that offense, because the

       court stated if Warren had “tested .05 or greater” at the scene, that could have

       resulted in him being charged with level 4 felonies. Tr. Vol. 2, p. 54. The court

       concluded that Warren benefitted from “fleeing the scene and not reporting the

       Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 11 of 12
       accident.” Id. at 54. We construe the court’s comments as part of the

       discussion on the nature and circumstances of the offense rather than an

       attempt to punish Warren for an offense with which he was not charged. In

       any event, the trial court imposed advisory sentences for Warren’s offenses

       rather than the maximum sentences, which indicates the court was not seeking

       to improperly punish him.


                                                Conclusion
[26]   For the reasons stated above, we affirm the judgment of the trial court, reverse

       in part, and remand for further proceedings consistent with this decision.


[27]   Affirmed in part, reversed in part, and remanded.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 91A04-1611-CR-2607 | June 29, 2017   Page 12 of 12
