                                                                  FILED
                                                             Sep 11 2019, 10:38 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court

                      IN THE

Indiana Supreme Court
         Supreme Court Case No. 19S-CR-502

                Brian L. Paquette,
                  Appellant-Defendant,

                          –v–

                 State of Indiana,
                    Appellee-Plaintiff


              Decided: September 11, 2019

Appeal from the Pike Circuit Court, No. 63C01-1602-F3-73
       The Honorable Jeffrey L. Biesterveld, Judge

On Petition to Transfer from the Indiana Court of Appeals,
                    No. 18A-CR-3072



                  Per Curiam Opinion
                   All Justices concur.
Per curiam.

   On February 12, 2016, while under the influence of methamphetamine
and purportedly believing he was being chased by farmers through a
field, Brian Paquette attempted to flee from police by traveling the wrong
way on I-69 near Petersburg, Indiana. This initiated a chain-reaction crash
that claimed the lives of three victims, one of whom was pregnant, and
severely injured a fourth.

  As to the three deceased victims, Paquette was charged with three
counts of resisting law enforcement by fleeing in a vehicle causing death, a
Level 3 felony; three counts of operating a vehicle with methamphetamine
in his blood causing death, a Level 4 felony; and three counts of reckless
homicide, a Level 5 felony. Paquette was also charged with operating a
vehicle with methamphetamine in his blood causing serious bodily injury
and possession of methamphetamine, both Level 6 felonies.

   Paquette agreed to plead guilty to all charges but argued that, because
he engaged in only one act of resisting, the trial court could enter a Level 3
felony resisting-causing-death conviction as to only one of the deceased
victims. The trial court ruled against Paquette on this issue and entered
convictions on all three Level 3 felony counts and the Level 6 felony
operating-causing-injury count. It sentenced him to 16 years on each Level
3 felony and to two and a half years on the Level 6 felony, to be served
consecutively.1

    In Paquette’s first appeal, we held that the resisting law enforcement
statute, Indiana Code section 35-44.1-3-1, does not contemplate multiple
convictions when multiple victims are killed as a result of a single incident
of resisting. Paquette v. State, 101 N.E.3d 234 (Ind. 2018) (“Paquette I”).
Accordingly, we remanded with instructions to vacate two of the three
Level 3 felony resisting-causing-death convictions. But because the statute
for operating causing death does explicitly allow for multiple convictions
arising from a single act, we instructed the trial court to “enter convictions




1   The trial court merged the Level 4 and Level 5 felony convictions into these four convictions.



Indiana Supreme Court | Case No. 19S-CR-502 | September 11, 2019                        Page 2 of 4
under that statute for all victims and … sentence accordingly.” 101 N.E.3d
at 242.

   On remand, the trial court entered separate convictions and sentences
on all three Level 3 felony counts but merged the second and third counts
into the first count. The trial court also entered convictions on all three
Level 4 felony counts. By imposing sentences of 12 years each for the
Level 3 felony and the three Level 4 felonies, to run consecutively with the
two-and-a-half year sentence for possession of methamphetamine, the
trial court reached the same total sentence as before: 50 and a half years.

   On Paquette’s appeal, the Court of Appeals reversed in part and
remanded. Paquette v. State, No. 18A-CR-3072, 2019 WL 2203251 (Ind. Ct.
App. May 22, 2019) (“Paquette II”).

   Paquette II correctly notes that double jeopardy principles prevent the
entry of a Level 4 felony operating-causing-death conviction and a Level 3
felony resisting-causing-death conviction as to the same victim. But, citing
the remand instructions in Paquette I, the Court of Appeals did not vacate
one of the three Level 4 felony convictions. Instead, it instructed the trial
court to vacate the single remaining Level 3 felony conviction and enter a
conviction for the Level 6 felony offense of resisting law enforcement by
fleeing in a vehicle—“a count of resisting law enforcement that is not
enhanced for causing a death.” 2019 WL 2203251 at *3 (emphasis in
original).

   In its response to Paquette’s petition to transfer, the State agrees that
the Court of Appeals’ efforts to correct this double jeopardy violation
misconstrued Paquette I by vacating the Level 3 felony conviction instead
of one of the three Level 4 felony convictions.

   We grant transfer, thereby vacating the Court of Appeals decision, Ind.
Appellate Rule 58(A), and remand for the trial court to impose judgment
of conviction for the following: one count of Level 3 felony resisting law
enforcement causing death; two counts of Level 4 felony operating
causing death; and one count of Level 6 felony operating causing serious
bodily injury; and to sentence accordingly.




Indiana Supreme Court | Case No. 19S-CR-502 | September 11, 2019     Page 3 of 4
All Justices concur.



ATTORNEY FOR APPELLANT, BRIAN PAQUETTE
Mark A. Bates
Schererville, Indiana

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

Tyler Banks
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 19S-CR-502 | September 11, 2019   Page 4 of 4
