      MEMORANDUM DECISION                                                                 Nov 25 2015, 6:38 am


      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                          ATTORNEYS FOR APPELLEE
      Corey L. Scott                                                  Gregory F. Zoeller
      Indianapolis, Indiana                                           Attorney General of Indiana
                                                                      Michael Gene Worden
                                                                      Deputy Attorney General
                                                                      Indianapolis, Indiana


                                                      IN THE
             COURT OF APPEALS OF INDIANA

      Derrick Hicks,                                                  November 25, 2015

      Appellant-Defendant,                                            Court of Appeals Case No.
                                                                      49A02-1504-CR-195
                 v.                                                   Appeal from the Marion Superior
                                                                      Court.
      State of Indiana,                                               The Honorable Christina Klineman,
                                                                      Judge Pro Tempore.
      Appellee-Plaintiff.                                             Cause No. 49G05-1208-FA-55873




      Garrard, Senior Judge

                                                                                                             1
[1]   Derrick Hicks pleaded guilty to attempted child molesting, a Class A felony;

      three counts of child molesting, two as Class A felonies and one as a Class C




      1
          Ind. Code §§ 35-42-4-3 (1998) (child molesting), 35-41-5-1 (1977) (attempt).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-195 | November 25, 2015         Page 1 of 6
                  2                             3                         4
      felony; Rape, a Class B felony; two counts of Incest, both Class B felonies,
                                            5
      and Battery, a Class D felony. He appeals his convictions, alleging double

      jeopardy violations. Hicks also appeals his sentence. We affirm in part, reverse

      in part, and remand.


[2]   In 2006, Hicks gained custody of his eight-year-old daughter, M.W., and

      moved her into his Marion County home. Shortly after M.W. moved in, Hicks

      touched M.W.’s genitals, over and under her clothes. He touched her genitals

      repeatedly over the next two years. When she turned ten or eleven, Hicks

      forced her to submit to sexual intercourse. This occurred at least twenty times

      while they lived in Marion County. On one occasion, M.W. resisted sexual

      intercourse, and Hicks struck her in the face with a closed fist to compel her to

      submit.


[3]   In September 2010, Hicks and M.W. moved to Lake County, Indiana, where

      Hicks continued to require M.W. to submit to sexual intercourse. M.W.

      discovered she was pregnant, and she gave birth to a child at the age of twelve.

      Hicks consented to DNA testing, which revealed that he was the father of

      M.W.’s child.




      2
          Ind. Code § 35-42-4-3.
      3
          Ind. Code § 35-42-4-1 (1998).
      4
          Ind. Code § 35-46-1-3 (1994).
      5
          Ind. Code § 35-42-2-1 (1998).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-195 | November 25, 2015   Page 2 of 6
[4]   The State charged Hicks with several crimes arising from his molestations of

      M.W. in Lake County. He pleaded guilty and was sentenced to seventy years.

      Hicks appealed, and a panel of this Court affirmed his sentence. Hicks v. State,

      No. 45A03-1307-CR-265 (Ind. Ct. App. Apr. 29, 2014), trans. denied.


[5]   Meanwhile, this case began when the State charged Hicks with attempted child

      molesting, three counts of child molesting, rape, two counts of incest, and

      battery for his crimes against M.W. while they lived in Marion County. He

      waived his right to a jury trial. Later, Hicks stated that he wanted to plead

      guilty to all charges without a plea agreement.


[6]   At the guilty plea hearing, Hicks agreed that he had read the charging

      information, that the charging information was accurate, and that he was guilty

      of the charges. The State set forth a factual basis for each of the charges,

      including a statement that Hicks had molested M.W. on a weekly basis. Hicks

      agreed that the State’s factual basis was true. He then pleaded guilty to each of

      the charges. The trial court entered a judgment of conviction on the first three

      counts (attempted child molesting and two counts of child molesting, all Class

      A felonies) and took the rest of the counts under advisement pending

      sentencing.


[7]   At the sentencing hearing, the court entered a judgment of conviction on the

      remaining five counts and sentenced Hicks to an aggregate sentence of eighty-

      four years, to be served consecutively to the sentence that was imposed in Lake

      County. This appeal followed.


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[8]    Hicks argues that his convictions violate Indiana’s constitutional prohibition of

       double jeopardy because he says the State cited the same evidence multiple

       times to support multiple convictions. Ind. Const. art. I, sec. 14. The State

       argues that Hicks waived this claim by pleading guilty. We agree with the

       State.


[9]    It is well-established that when a party pleads guilty pursuant to a plea

       agreement, he or she waives the right to raise a double jeopardy claim on direct

       appeal. See Mapp v. State, 770 N.E.2d 332, 334-35 (Ind. 2002) (“Defendants

       waive a whole panoply of rights by voluntarily pleading guilty”). Here, Hicks

       pleaded guilty without the benefit of a plea agreement. A panel of this Court

       concluded that a defendant who pleads guilty without a plea agreement may

       challenge a facially duplicative double enhancement on direct appeal. See

       Graham v. State, 903 N.E.2d 538, 541 (Ind. Ct. App. 2009).


[10]   We distinguish Hicks’s case from the facts in Graham. In general, a defendant

       who pleads guilty is entitled to raise a double jeopardy claim on direct appeal if

       the charges against the defendant are facially duplicative. Griffin v. State, 540

       N.E.2d 1187, 1188 (Ind. 1989) (citing Menna v. New York, 423 U.S. 61, 96 S. Ct.

       241, 46 L. Ed. 2d 195 (1975)).


[11]   Hicks presents a double jeopardy claim under the Indiana Constitution,

       asserting that many of his convictions violate the “actual evidence test” because

       the same evidentiary facts were used to support multiple convictions.

       Appellant’s Brief p. 3. Application of the actual evidence test requires a


       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-195 | November 25, 2015   Page 4 of 6
       reviewing court to look at the evidence presented and decide whether each

       challenged offense was established by separate, distinct facts. Sloan v. State, 947

       N.E.2d 917, 924 (Ind. 2011).


[12]   Hicks’s double jeopardy claim goes beyond the face of the charging information

       and would require an examination of the record. The record is much less

       developed than it would have been if the case had gone to trial because Hicks’s

       guilty plea relieved the State of the burden of presenting its full case. We

       conclude that Hicks has waived his double jeopardy claim for direct appellate

       review. See Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996) (defendant

       waived right to challenge voluntariness of guilty plea on direct appeal).


[13]   Next, Hicks claims that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender. We are unable to address this claim

       due to errors in the sentencing order and must remand for correction.


[14]   When oral and written sentencing statements conflict, we examine them

       together to attempt to discern the intent of the sentencing court. See Vaughn v.

       State, 13 N.E.3d 873, 890 (Ind. Ct. App. 2014), trans. denied. The record

       demonstrates substantial disparities between the trial court’s oral statement at

       the sentencing hearing and the sentencing order. For example, at the

       sentencing hearing, the court imposed a sentence of fifty years on Count III

       (child molesting) and seventeen years each for Count IV (rape) and Count V

       (incest). In the sentencing order, the court imposed seventeen years on Count

       III, seventeen years on Count IV, and fifty years on Count V. The State


       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-195 | November 25, 2015   Page 5 of 6
       correctly points out that a fifty-year sentence on Count V would have exceeded

       the maximum sentence allowed by statute for incest as a Class B felony.

       Furthermore, during the sentencing hearing the trial court identified which

       sentences would be served concurrently or consecutively, but in the sentencing

       order the court did not state for Counts III, IV, V, and VI whether the sentences

       would be served concurrently or consecutively as to each other or any other

       conviction.


[15]   Given these disparities, it is necessary to remand to the trial court with

       instructions to issue an amended sentencing order that sets forth the sentence

       for each conviction and states whether the sentences are to be served

       consecutively or concurrently.


[16]   For the foregoing reasons, we conclude Hicks has waived his double jeopardy

       claim, but we reverse the trial court’s sentencing order and remand for issuance

       of a corrected order.


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


       Barnes, J., and Bradford, J., concur.




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