holding that trial courts must impose the habitual offender enhancement upon only one of the convictions and must specify the conviction 2 Ind. Appellate Rule 49(B) provides that “[a]ny party’s failure to include any item in an Appendix shall not waive any issue or argument.” Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015 Page 8 of 10 to be so enhanced and remanding to the trial court to correct the sentence specifically by assigning the habitual offender enhancement
How later courts described this case
- holding that trial courts must impose the habitual offender enhancement upon only one of the convictions and must specify the conviction 2 Ind. Appellate Rule 49(B) provides that “[a]ny party’s failure to include any item in an Appendix shall not waive any issue or argument.” Court of Appeals of Indiana | Memorandum Decision 71A04-1412-CR-580 | December 9, 2015 Page 8 of 10 to be so enhanced and remanding to the trial court to correct the sentence specifically by assigning the habitual offender enhancement
- holding that “when defendants are convicted of multiple offenses and found to be habitual offenders, trial courts must impose the resulting penalty enhancement upon only one of the convictions and must specify the conviction to be so enhanced” and explaining that failure to do so requires remand.
- vacating defendant's intimidation and criminal recklessness convictions on double jeopardy grounds, even though the sentences for those offenses were to be served concurrently with his longer sentences for erimi-nal confinement and burglary, respectively
- observing that the evidentiary facts used by the jury in reaching its decision may be informed by considerations of the final jury instructions and arguments of counsel
Written by the judges who cited it.
The opinion
BOEHM, Justice,
concurring in result.
I concur fully in parts 1, 3 and 4 of the majority opinion and concur in the result reached in part 2. However, as explained in my opinion concurring in result in Richardson v. State, 717 N.E.2d 32, 57 (Ind.1999), I reach that conclusion based on the common law rule that requires that the facts giving rise to both offenses be “independently supportable, separate and distinct.” Thompson v. State, 259 Ind. 587, 592 , 290 N.E.2d 724, 727 (1972). The jury *103 was instructed that the State must prove “serious bodily injury” to Hilt as the requirement to elevate the burglary conviction to an A felony, and also as an element of criminal recklessness. Mclntire’s dual convictions cannot stand because there is a reasonable probability that the same bodily injury that elevated the burglary charge to a Class A felony formed the basis of the criminal recklessness charge.
Nor are the dual convictions for confinement and intimidation permissible under Thompson . The intimidation conviction was based on Mclntire’s threat, while armed with the baseball bat, to kill Lovell if she left and his confinement conviction was based on his confining Lovell, while armed with the bat, in her home without her consent. Because there is a reasonable probability that the same actions supported both convictions, I agree with the majority that the intimidation conviction must be vacated.
SELBY, J., concurs.