                                                                                    FILED
MEMORANDUM DECISION                                                            08/28/2017, 10:06 am
                                                                                    CLERK
Pursuant to Ind. Appellate Rule 65(D), this                                     Indiana Supreme Court
                                                                                   Court of Appeals
Memorandum Decision shall not be regarded as                                         and Tax Court
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
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and Office of the                      Attorney General
Cass County Public Defender
                                                         Lyubov Gore
Logansport, Indiana
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jose Miguel Tomas-Felipe,                                August 28, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A02-1703-CR-607
        v.                                               Appeal from the Cass Superior
                                                         Court.
                                                         The Honorable Richard Maughmer,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         09D02-1606-F1-3




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017               Page 1 of 6
[1]   Jose Miguel Tomas-Felipe appeals his convictions of attempted murder, a Level
                    1                                                       2
      1 felony, and burglary of a dwelling, a Level 4 felony, claiming the convictions

      violate his protections against double jeopardy. We affirm.


[2]   On June 18, 2016, Iris Cruz was asleep in her bed in Logansport, Indiana, with

      her two-year old child next to her. She was awakened by a pain in her arm.

      Cruz looked up and saw a man she did not know standing by her bed, stabbing

      her with a sharp object. The man tried to stab or slash her neck, and she

      blocked the blows with her hands and arms, causing pain and severe bleeding.

      After they struggled for a short time, the man ran out of the house. Cruz

      ensured that he had left, checked on her three children, and called 911. Her

      hands were cut so badly that she had to try calling 911 three times before

      succeeding. As Cruz waited for the police, she noticed a window in her home

      was open. It had not been open when she went to sleep.


[3]   Officers were dispatched to Cruz’s home. One officer saw a man, later

      identified as Tomas-Felipe, running away from the home. Cruz came outside

      and yelled for help. The officer stayed with her and secured the home until

      medics arrived. Another officer chased Tomas-Felipe and subdued him.

      Tomas-Felipe’s clothes and body were spotted with blood. Later, a crime scene




      1
          Ind. Code §§ 35-42-1-1 (2014), 35-41-5-1 (2014).
      2
          Ind. Code § 35-43-2-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017   Page 2 of 6
      technician found a large bloody knife in Cruz’s bed. The officers also found a

      fingerprint on the open window.


[4]   Doctors treated numerous cuts on Cruz’s hands and arms. She later underwent

      surgeries to repair damaged tendons in her fingers. The injuries healed, but

      Cruz has recurring nightmares about being attacked and bleeding to death.


[5]   The State charged Tomas-Felipe with attempted murder; burglary of a dwelling

      resulting in serious bodily injury, a Level 1 felony; and resisting law

      enforcement, a Class A misdemeanor. He pleaded guilty as charged without a

      plea agreement.


[6]   At sentencing, the State asked the court to enter a judgment of conviction for

      burglary as a Level 4 felony, “essentially removing the serious bodily injury

      element.” Tr. Vol. II, p. 19. The State was concerned the charge of burglary of

      a dwelling resulting in serious bodily injury “overlapp[ed] with the attempted

      murder” charge. Id. The court agreed with the State that the “language of

      serious bodily injury” in the burglary charge was “duplicitous to the allegation”

      in the attempted murder charge. Id. at 22. The court entered judgment on the

      burglary conviction as a Level 4 felony to “avoid two sentences for the same

      crime.” Id. at 21. The court sentenced Tomas-Felipe to forty years for

      attempted murder and twelve years for burglary of a dwelling, to be served

      consecutively. The court further sentenced Tomas-Felipe to one year for

      resisting law enforcement, to be served concurrently with the other sentences.

      This appeal followed.


      Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017   Page 3 of 6
[7]   Before we turn to the merits of Tomas-Felipe’s double jeopardy claim, the State

      argues he waived his right to present that claim because he pleaded guilty. In

      general, a defendant who pleads guilty per an agreement with the State waives

      the right to raise a double jeopardy claim on appeal. Mapp v. State, 770 N.E.2d

      332 (Ind. 2001). When a defendant pleads guilty without a plea agreement,

      there is no waiver. Kunberger v. State, 46 N.E.3d 966 (Ind. Ct. App. 2015).


[8]   Tomas-Felipe pleaded guilty without an agreement and did not receive any

      tangible benefit from the State. The State argues that he benefitted because the

      court determined his guilty plea was a mitigating factor. The court’s

      consideration of Tomas-Felipe’s guilty plea is of no consequence. The key for

      purposes of waiver is whether a defendant gained a benefit from the State

      through an agreement. See Wharton v. State, 42 N.E.3d 539 (Ind. Ct. App. 2015)

      (no waiver of right to raise double jeopardy claim; defendant pleaded guilty

      without an agreement). Tomas-Felipe has not waived his right to raise a double

      jeopardy claim on appeal.


[9]   Tomas-Felipe declines to present a claim under the double jeopardy clauses of

      the Constitution of the United States of America or the Constitution of the State

      of Indiana. Instead, he bases his double jeopardy claim on “Indiana’s common-

      law rules,” arguing his burglary conviction must be vacated because it is based

      in part on the same act as the attempted murder conviction. Appellant’s Br. p.

      10.




      Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017   Page 4 of 6
[10]   In Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002), the Indiana Supreme Court

       explained, “We have 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 [v. State, 717 N.E.2d

       32 (Ind. 1999)].” For example, two crimes may not be enhanced by the same

       bodily injury. Miller v. State, 790 N.E.2d 437 (Ind. 2003). In Gross v. State, 769

       N.E.2d 1136 (Ind. 2002), the Indiana Supreme Court determined a conviction

       of robbery resulting in serious bodily injury, a Class A felony, could not stand

       because the same act of causing injury was an element of an accompanying

       charge of murder. The Supreme Court remanded with instructions to reduce

       the robbery conviction to a Class B felony, thereby removing the element of

       serious bodily injury from the robbery charge and eliminating the double

       jeopardy violation.


[11]   In the current case, Tomas-Felipe argues his burglary conviction must be

       vacated because the charges of attempted murder and burglary as a Level 1

       felony are based on the same act: his stabbing of Cruz, resulting in serious

       bodily injury. We reject his argument because the convictions, not the charges,

       are the crucial factor for purposes of double jeopardy. Tomas-Felipe fails to

       acknowledge that the trial court entered a judgment of conviction for burglary

       as a Level 4 felony, not as a Level 1 felony. Burglary as a Level 4 felony does

       not include an element of causing injury or serious bodily injury to a person.

       See Ind. Code § 35-43-2-1. The trial court implemented the remedy required by

       the Indiana Supreme Court in Gross, thus avoiding a violation of Indiana’s


       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017   Page 5 of 6
       common law double jeopardy principles. Tomas-Felipe has failed to

       demonstrate that he was harmed by being convicted of burglary as a Level 4

       felony.


[12]   For the reasons stated above, we affirm the judgment of the trial court.


[13]   Judgment affirmed.

[14]   Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1703-CR-607 | August 28, 2017   Page 6 of 6
