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Wilhoite v. State

Court of Appeals of Indiana

April 23, 2014

MATTHEW P. WILHOITE, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Page 351

APPEAL FROM THE HOWARD SUPERIOR COURT. The Honorable George A. Hopkins, Judge. Cause No. 34D04-1108-FB-123.

ATTORNEY FOR APPELLANT: DONALD E.C. LEICHT, Kokomo, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, IAN McLEAN, Deputy Attorney General, Indianapolis, Indiana.

MAY, Judge. BAILEY, J., and BRADFORD, J., concur.

Page 352

OPINION

MAY, Judge

Matthew P. Wilhoite appeals his conviction of Class B felony " Conspiracy to Commit Attempted Armed Robbery." [1] (App. at 163.) He asserts his conviction should be overturned because he was convicted of a crime that does not exist and because his right to an impartial jury was violated. Because he has not demonstrated fundamental error, we affirm.

FACTS AND PROCEDURAL HISTORY

In July of 2011, Wilhoite, Joshua Johnson, and Jacqueline Jones agreed to rob Donald Willis. They developed a plan that involved arranging a drug deal with Willis and then, during the transaction, robbing him. Wilhoite helped plan the crime and then, in accordance with the plan, he snuck out the window of Jones' apartment with a backpack of clothing for Johnson and was to meet Johnson to aid in his co-conspirators' escape. The armed robbery proved unsuccessful, and police apprehended Wilhoite and Johnson a short time later.

The State charged Wilhoite with Class B felony conspiracy, and a jury found Wilhoite guilty as charged. The court imposed a fourteen-year sentence.

DISCUSSION AND DECISION

1. The Charging Information

The State's charging information alleged Wilhoite committed " Conspiracy to Commit Attempted Armed Robbery, a Class B felony," ( id. at 15) (capitalization removed), and the sentencing order purports to sentence Wilhoite for that same offense. ...


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