Larry D. Bass, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Bartholomew Superior Court The Honorable Kathleen
Tighe Coriden, Judge Trial Court Cause No. 03D02-1511-CM-5663
ATTORNEY FOR APPELLANT Jane Ann Noblitt Columbus, Indiana.
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Larry D. Allen Deputy Attorney General
of the Case
Larry D. Bass appeals his convictions for operating a vehicle
while intoxicated ("OWI"), one as a Class A
misdemeanor and one as a Class C misdemeanor, following a
bench trial. Bass raises two issues for our review, which we
consolidate and restate as whether the trial court violated
Bass's double jeopardy rights when it entered its
judgment of conviction against Bass on both OWI counts. We
conclude that where, as here, the trial court states that the
defendant has been found guilty of multiple counts of OWI,
enters a "judgment" that is not specific as to
those counts, and then states that the counts "merge for
purposes of sentencing, " Indiana's case law
requires this court to remand to the trial court with
instructions that it specifically vacate the lesser offense.
Accordingly, we reverse and remand with instructions.
and Procedural History
On December 10, 2014, Joanna Tucker discovered Bass
unconscious inside of his running, but stopped, vehicle in
the middle of the intersection of Seventh Street and
Lafayette Avenue in Columbus. Tucker placed Bass's
vehicle in park. Columbus Police Department Officer Benjamin
Goodin arrived thereafter and "immediately saw"
that Bass's eyes "were bloodshot and glassy";
that his eyelids "were droopy"; that his
"speech was extremely slurred to the point that he had
difficulty formulating a thought or sentence"; and that
he "had very poor balance where he couldn't stand up
unassisted." Tr. at 37-38.
After medical personnel took Bass to a nearby hospital, Bass
consented to a blood draw. The result of that blood draw
demonstrated that Bass had methadone, oxycodone, and zolpidem
in his blood at the time of the traffic incident. The State
then charged Bass with two counts of OWI, one as a Class A
misdemeanor (for the alleged endangerment of
others) and one as a Class C misdemeanor (for
operating with a schedule I or II controlled substance in the
body). At his ensuing bench trial, Bass
testified that he had an affirmative defense to at least the
Class C misdemeanor allegation,  namely, that he had
prescriptions for each of the controlled substances found in
his blood and that he was "taking them" in the
manner that his "doctor [had] told [him] to take
them." Id. at 50.
The trial court rejected Bass's alleged defense, stating:
it is a defense . . . that the accused person consumed the
controlled substance under a valid prescription . . . . But
it is not a defense if you are not able to, if taking that
medication puts you in a position where you can cause harm to
others. So as to the A misdemeanor I will find that you are
guilty . . . . You know passing out in the middle of an
intersection is a danger. There's no doubt about that
and[, ] although I've not seen you[r] prescriptions, even
if I take you at your word, and I will that you have been
prescribed those medications . . ., it's abundantly clear
to me that you couldn't have been taking them in the
manner in which they were prescribed on that particular
occasion. . . . [Y]ou were under the influence of those drugs
in such a manner that you ought not to have been behind the
wheel of a car. So I am going to find that you are guilty
both of the A and C misdemeanor[s].
Id. at 57-59.
Thereafter, the trial court held a sentencing hearing.
Following that hearing, the court entered its written order
against Bass. In that order, which is simply titled
"Judgment, " the court acknowledged that Bass had
been found guilty on both counts but then stated that
"the counts merge for the purpose of sentencing."
Appellant's App. Vol. 2 at 17. The court then ordered
Bass to serve one year, all but ten days of which it
suspended to probation. The ...