                                                                              FILED
                                                                          Jun 10 2016, 8:37 am
      MEMORANDUM DECISION
      ON REHEARING                                                            CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Yvette M. LaPlante                                      Gregory F. Zoeller
      Keating & LaPlante, LLP                                 Attorney General of Indiana
      Evansville, Indiana                                     Eric P. Babbs
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Myles K. Martin, Jr,                                    June 10, 2016
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              82A01-1507-CR-966
              v.                                              Appeal from the Vanderburgh
                                                              Superior Court
      State of Indiana,                                       The Honorable Robert J. Pigman,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              82D02-1404-FB-418



      Najam, Judge.


                                       Statement of the Case
[1]   Myles K. Martin, Jr. petitions for rehearing following our memorandum

      decision in which we affirmed his convictions. See Martin v. State, No. 82A01-


      Court of Appeals of Indiana|Memorandum Decision on Rehearing 82A01-1507-CR-966| June 10, 2016

                                                                                                  Page 1 of 3
      1507-CR-966 (Ind. Ct. App. Mar. 17, 2016). We grant Martin’s petition to

      address the following issue: whether the trial court violated the prohibition

      against double jeopardy under the Fifth Amendment to the United States

      Constitution when the court entered its judgment of conviction against Martin

      for both resisting law enforcement, as a Class D felony, and resisting law

      enforcement, as a Class A misdemeanor. We agree with Martin that the entry

      of the judgment of conviction on both of those offenses violated double

      jeopardy principles. Accordingly, we grant Martin’s petition for rehearing and

      reverse his conviction for resisting law enforcement, as a Class A misdemeanor,

      and we remand with instructions that the trial court vacate that conviction and

      its related sentence. In all other respects, we affirm our original memorandum

      decision.


                                 Facts and Procedural History
[2]   We need not restate all the facts underlying Martin’s convictions in this

      decision. Rather, as relevant to rehearing, we need only consider the following

      facts: on March 29, 2014, officers attempted to stop Martin as he drove a stolen

      SUV, but Martin used the vehicle to flee. After a brief chase, officers disabled

      the vehicle, which Martin immediately abandoned. He then fled from the

      officers on foot before being apprehended.


[3]   According to the State’s ensuing charging information, Martin committed

      resisting law enforcement, as a Class D felony, when he fled from officers in the

      SUV. The State separately charged Martin with resisting law enforcement, as a

      Court of Appeals of Indiana|Memorandum Decision on Rehearing 82A01-1507-CR-966| June 10, 2016

                                                                                                 Page 2 of 3
      Class A misdemeanor, when he fled on foot. The State’s evidence and

      arguments at trial comported with the charging information, and the trial court

      entered judgment of conviction against Martin on both counts.


                                     Discussion and Decision
[4]   The entry of the judgment of conviction against Martin for both resisting law

      enforcement, as a Class D felony, and resisting law enforcement, as a Class A

      misdemeanor, violated the constitutional prohibition against double jeopardy.

      As we recently explained, when a defendant flees from law enforcement by a

      vehicle and then exits that vehicle to continue fleeing by foot, the defendant has

      committed one continuous act of resisting law enforcement. Lewis v. State, 43

      N.E.3d 689, 691 (Ind. Ct. App. 2015) (following Arthur v. State, 824 N.E.2d

      383, 387 (Ind. Ct. App. 2005), trans. denied). Martin’s facts are substantively

      identical to those in Lewis and Arthur. Accordingly, we grant Martin’s petition

      for rehearing to clarify our original memorandum decision and correct this

      constitutional error. We reverse Martin’s conviction for resisting law

      enforcement, as a Class A misdemeanor, and we remand with instructions that

      the trial court vacate that conviction and its related sentence.


[5]   In all other respects, we affirm our original memorandum decision.


      May, J., concurs.

      Riley, J., would deny rehearing without opinion.



      Court of Appeals of Indiana|Memorandum Decision on Rehearing 82A01-1507-CR-966| June 10, 2016

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