MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Nov 03 2017, 7:39 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeffery Haupt                                           Curtis T. Hill, Jr.
Law Office of Jeffery Haupt                             Attorney General of Indiana
South Bend, Indiana
                                                        Henry A. Flores, Jr.
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Irwin McNeil Scott,                                     November 3, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A05-1706-CR-1225
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Elizabeth C.
Appellee-Plaintiff.                                     Hurley, Judge
                                                        Trial Court Cause No.
                                                        71D08-1610-F3-64



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1706-CR-1225 | November 3, 2017         Page 1 of 5
[1]   Irwin McNeil Scott appeals his sentence for two counts of failure to remain at

      the scene of an accident. Scott raises two issues, one of which we find

      dispositive and revise and restate as whether his convictions violate double

      jeopardy. We reverse and remand.


                                      Facts and Procedural History

[2]   On October 12, 2016, police stopped the vehicle in which Scott and two

      children were passengers. The driver of the vehicle exited to talk to the police

      officer, and Scott, who was intoxicated, moved into the driver’s seat and drove

      away. The police attempted to pull him over, but he kept driving for multiple

      blocks, crashed into a pole, flipped the vehicle over, and left the scene without

      checking if he could aid anyone or waiting for the police to arrive. The two

      children each sustained serious bodily injury as a result of the accident.


[3]   On October 14, 2016, the State charged Scott with two counts of failure to

      remain at the scene of an accident as level 3 felonies and one count of resisting

      law enforcement as a level 6 felony. On March 27, 2017, the court held a

      hearing, and Scott pled guilty as charged without a plea agreement. When

      asked by the court what differentiated the two counts of failure to remain at the

      scene of an accident, the prosecutor indicated that there were two separate

      victims.


[4]   On May 10, 2017, the court held a sentencing hearing. It sentenced Scott to

      consecutive terms of ten years for each count of failure to remain at the scene of




      Court of Appeals of Indiana | Memorandum Decision 71A05-1706-CR-1225 | November 3, 2017   Page 2 of 5
      an accident and two years for resisting law enforcement, for an aggregate

      sentence of twenty-two years.


                                                      Discussion

[5]   The issue is whether Scott’s convictions violate double jeopardy principles.

      Scott argues that his sentences on his convictions for failure to remain at the

      scene of an accident violate his protections against double jeopardy. The State

      concedes that Scott is correct that both convictions for leaving the scene

      constitute one offense under the 2016 version of the statute1 and that this case

      should be remanded to resolve the double jeopardy issue. The State asserts that

      “because [Scott] left the scene of only one accident one conviction should be

      vacated.” Appellee’s Brief at 11.


[6]   Article 1, Section 14 of the Indiana Constitution provides: “No person shall be

      put in jeopardy twice for the same offense.” “[T]wo or more offenses are the

      “same offense” in violation of the Indiana Double Jeopardy Clause 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.” Sistrunk v. State,

      36 N.E.3d 1051, 1053 (Ind. 2015) (quoting Richardson v. State, 717 N.E.2d 32,

      49 (Ind. 1999)). In addition to the protections afforded by the Indiana Double




      1
       The State notes that the legislature has since amended the leaving the scene statute to allow for separate
      offenses and consecutive sentences for multiple victims. See Appellee’s Brief at 10.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1706-CR-1225 | November 3, 2017             Page 3 of 5
      Jeopardy Clause, the Indiana Supreme Court “has ‘long adhered to a series of

      rules of statutory construction and common law that are often described as

      double jeopardy, but are not governed by the constitutional test set forth in

      Richardson.’” Id. (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)).

      “Among these is the rule that precludes a ‘[c]onviction and punishment for an

      enhancement of a crime where the enhancement is imposed for the very same

      behavior or harm as another crime for which the defendant has been convicted

      and punished.’” Id. at 1053-1054 (quoting Guyton v. State, 771 N.E.2d 1141,

      1143 (Ind. 2002) (emphasis added) (quoting Richardson, 717 N.E.2d at 56

      (Sullivan, J., concurring))).


[7]   Under double jeopardy analysis, Scott cannot be convicted of and sentenced for

      both charges of failure to remain at the scene. See Nield v. State, 677 N.E.2d 79,

      82 (Ind. Ct. App. 1997) (remanding with instructions to dismiss one of the

      convictions for leaving the scene of an accident where the defendant struck two

      separate motorcycles but the impacts were nearly simultaneous and were the

      result of the same improper turn); see also Wood v. State, 999 N.E.2d 1054, 1066

      (Ind. Ct. App. 2013) (holding that the defendant’s act of leaving the scene of a

      boating accident can support only one conviction under Ind. Code § 14-15-4-1

      even though two people died and another was injured), trans. denied, cert. denied,

      135 S. Ct. 250 (2014). We vacate Scott’s conviction and sentence for failure to




      Court of Appeals of Indiana | Memorandum Decision 71A05-1706-CR-1225 | November 3, 2017   Page 4 of 5
      remain at the scene of an accident under Count II and remand for

      resentencing.2


                                                    Conclusion

[8]   For the foregoing reasons, we vacate Scott’s conviction of failure to remain at

      the scene of an accident under Count II and remand for resentencing on the

      remaining convictions.


[9]   Reversed and remanded.


      Najam, J., and Kirsch, J., concur.




      2
       Because we hold Scott’s convictions constitute double jeopardy and remand for the court to resentence him,
      we need not address Scott’s argument that his sentence is inappropriate.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1706-CR-1225 | November 3, 2017         Page 5 of 5
