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01/28/88 JOHNNIE JONES v. STATE INDIANA

Filed: January 28, 1988.

JOHNNIE JONES, III, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM THE MARION SUPERIOR COURT, CRIMINAL DIVISION I, The Honorable John W. Tranberg, Judge, Cause No. CR84-253A.

Pivarnik, J.; Shepard, C. J., DeBruler, Givan, and Dickson, JJ., concur.

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant Johnnie Jones III was convicted of one count of Robbery, a class B felony, and two counts of Confinement, also a class B felony. He received an eighteen (18) year sentence for the robbery conviction, and concurrent sentences of eighteen (18) years on each confinement conviction. These ran consecutively with the robbery conviction for a total sentence of thirty-six (36) years. Jones' Motion to Correct Errors was denied and he appealed directly to this court.

Jones raises the following issues on appeal:

1. trial court error in convicting and sentencing Jones for both robbery and confinement;

2. trial court error in failing to properly explain the aggravating and mitigating factors the court considered in sentencing Jones;

3. trial court error in denying Jones' request to withdraw his jury waiver; and

4. insufficiency of the evidence.

The facts most favorable to the verdict show that on December 17, 1984, Russell Allen was at home with his wife and two young children. They were watching television when a stranger knocked on a window and stated he hit Allen's car which was parked in front of the home. When Allen opened the door to see what happened, two men pushed their way inside. One man was holding a gun, and struck Allen in the head with it. He was later identified as Jones. The intruders ordered the Allens to lie on the floor. They bound the Allens with duct tape and pointed the gun at them. They then ransacked the home and attempted to take certain valuables with them. However, a neighbor earlier observed the disturbance and called the police. The police arrived as the men were fleeing. Jones was forced to escape on foot while his accomplice drove away in a red Ford automobile.

I

Jones argues on appeal the trial court erred in convicting and sentencing him on both crimes of robbery and confinement. He claims the crimes are ostensibly the same because they arose out of the same chain of events, and thus his convictions and sentencing were violative of his Double Jeopardy rights pursuant to the Fifth Amendment of the United States Constitution and Indiana Constitution, Art. 1, § 14.

This issue has previously decided by this court adverse to Jones's position, in Washington v. State (1981), Ind., 422 N.E.2d 1218. Washington was convicted for armed robbery of a restaurant and the criminal confinement of three individuals who were the victims of the robbery. We held there that each crime required proof of an additional fact which the others did not, the double jeopardy provisions were not violated, and separate sentences were properly imposed for each. Lindner v. State (1985), Ind., 485 N.E.2d 73; Turner v. ...


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