                                                             FILED
                                                        Jun 10 2019, 1:40 pm

                                                             CLERK
                                                         Indiana Supreme Court
                                                            Court of Appeals
                                                              and Tax Court

                         IN THE

  Indiana Supreme Court
            Supreme Court Case No. 19S-CR-348

               Dwayne A. Springfield,
                          Appellant,

                             –v–

                    State of Indiana,
                           Appellee.


                    Decided: June 10, 2019

Appeal from the Marion Superior Court, No. 49G21-1612-F2-47464
             The Honorable Alicia Gooden, Judge

   On Petition to Transfer from the Indiana Court of Appeals,
                       No. 18A-CR-1317



                     Per Curiam Opinion
                      All Justices concur.
Per curiam.

  Following a traffic stop that ended in a police chase, Dwayne
Springfield was charged with the following offenses, as relevant to this
appeal:

       •    Count II: Possession of Cocaine under Indiana Code section 35-
            48-4-6(a), enhanced to a Level 4 felony under Indiana Code
            section 35-48-4-6(c)(2);
       •    Count IV: Possession of a Narcotic Drug under Indiana Code
            section 35-48-4-6(a), enhanced to a Level 5 felony under Indiana
            Code section 35-48-4-6(b)(2); and
       •    Count V: Unlawful Possession of a Firearm by a Serious Violent
            Felon, a Level 4 felony under Indiana Code section 35-47-4-5(c).

  The State later added another count to charge Springfield with being a
habitual offender under Indiana Code section 35-50-2-8.

   A trifurcated trial was held in April 2018. The first phase of the trial
involved Counts II and IV, and the jury found Springfield guilty of both.
During the second phase, the jury determined that Springfield was guilty
of Count V, the unlawful possession of a firearm by a serious violent
felon. During the third phase, a bench trial, Springfield was adjudicated a
habitual offender.

   At the sentencing hearing, the trial court sentenced Springfield to 10
years for Count II, enhanced by 20 years for being a habitual offender; six
years for Count IV; and 12 years for Count V. These sentences were
ordered to be served concurrently, for an aggregate sentence of 30 years in
the Indiana Department of Correction.

  Springfield appealed, arguing that his conviction for Count V and the
enhancements applied to Counts II and IV violated Indiana double
jeopardy principles because they were based on the same evidence—his
possession of a single firearm. This Court has held that “two or more
offenses are the ‘same offense’ in violation of Article I, Section 14 of the
Indiana Constitution, 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


Indiana Supreme Court | Case No. 19S-CR-348 | June 10, 2019           Page 2 of 4
another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.
1999) (emphases in original).

   Citing Richardson, the Court of Appeals affirmed Springfield’s
convictions and sentences for Counts II and IV but reversed the conviction
and sentence for Count V, the unlawful possession of a firearm by a
serious violent felon. It remanded the matter to the trial court with
instructions to vacate the Count V conviction and sentence Springfield
accordingly. Springfield v. State, 116 N.E.3d 1160 (Ind. Ct. App. 2018), reh’g
denied.

   We grant transfer solely to eliminate the residual double jeopardy
violation—Springfield’s two drug-related convictions, both of which were
enhanced based on the same evidence of his possession of a single firearm.
Although the use of the same weapon during the commission of two or
more distinct offenses may be used to enhance the level of each offense
without offending double jeopardy protections, enhancing the level of two
separate offenses for the continuous possession of a firearm would violate
these principles. Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003) (Sullivan, J.,
concurring). The appropriate remedy to address such violations is to
reduce one of the offending convictions to a lesser included offense, if
doing so will eliminate the violation. Richardson, 717 N.E.2d at 54.

   Therefore, we remand this matter to the trial court for the entry of
judgment on the jury verdicts of guilt for

       •    Count II: Possession of Cocaine as a Level 4 felony under
            Indiana Code section 35-48-4-6(c)(2); and
       •    Count IV: Possession of a Narcotic Drug as a Level 6 felony
            under Indiana Code section 35-48-4-6(a);

and for a determination of the appropriate sentence for each conviction.

   We summarily affirm the opinion of the Court of Appeals in all other
respects. See App. R. 58(A)(2).


All Justices concur.




Indiana Supreme Court | Case No. 19S-CR-348 | June 10, 2019             Page 3 of 4
ATTORNEY FOR APPELLANT
Valerie K. Boots
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 19S-CR-348 | June 10, 2019   Page 4 of 4
