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Thompson v. State

Court of Appeals of Indiana

September 8, 2017

Joshua Thompson, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Cass Superior Court The Honorable Richard Maughmer, Judge Trial Court Cause No. 09D02-1510-F5-89

          Attorney for Appellant Mark K. Leeman Leeman Law Office and Cass County Public Defender Logansport, Indiana

          Andrew Achey Logansport, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana

          Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE.

         [¶1] Joshua Thompson pled guilty to Level 6 felony domestic battery, [1] Level 6 felony battery with moderate bodily injury, [2] and Level 5 felony battery resulting in serious bodily injury.[3] The trial court entered convictions on only two of the admissions: Level 6 felony domestic battery and Level 5 felony battery resulting in serious bodily injury. The court imposed consecutive sentences of two and four years, respectively.

         [¶2] In this direct appeal, Thompson contends: (1) his conviction of Level 5 felony battery resulting in serious bodily injury should be vacated because the charging information fails to allege a crime; (2) his conviction of two counts of battery for one touching constitutes impermissible double jeopardy; and (3) his six-year sentence is inappropriate in light of the nature of his offense. We affirm Thompson's conviction of Level 5 felony battery resulting in serious bodily injury, vacate Thompson's conviction Level 6 felony domestic battery on double jeopardy grounds, and remand for the court to resentence Thompson.

         Facts and Procedural History

         [¶3] On July 28, 2015, Thompson and his ex-wife, Brooke, began to argue on the telephone about child support. Thompson drove to Brooke's house to continue the argument. The argument became more heated and then, in front of their two-year-old child, Thompson shoved Brooke. Brooke tripped and fell over the curb, twisting her ankle and causing her pain. As she fell, Brooke struck Charlotte Wells, her boyfriend's elderly grandmother, in the mouth, which caused Wells to fall and fracture her tailbone and a vertebra in her back.

         [¶4] The State initially charged Thompson with: (1) Level 6 felony domestic battery for pushing Brooke in a rude, insolent or angry manner causing injury to Brooke, in front of their child, see Indiana Code section 35-42-2-1.3; and (2) Level 6 felony battery with moderate bodily injury for pushing Brooke and causing her moderate bodily injury in the form of a twisted ankle and pain, see Indiana Code section 35-42-2-1(d)(1). Later, the State added a third charge alleging Thompson committed Level 5 felony battery of Brooke resulting in serious bodily injury to Wells. See Ind. Code § 35-42-2-1(f)(1).

         [¶5] The day before he was scheduled for a jury trial, Thompson pleaded guilty to all three counts without the benefit of a plea agreement. The trial court concluded the two Level 6 felony charges punished the same act and entered conviction on only the Level 6 felony domestic battery. The court suggested the Level 5 felony battery was also the same crime as the Level 6 felonies for Double Jeopardy purposes, but the State insisted the crimes were distinguishable because they involved "separate victims." (Sentencing Tr. at 24.) The court thereafter also entered a conviction of Level 5 felony battery resulting in serious bodily injury. The court sentenced Thompson to consecutive sentences of two and four years, respectively, for an aggregate sentence of six years.

         Discussion and Decision

         Waiver

         [¶6] The State, relying on Mapp v. State, 770 N.E.2d 332, 335 (Ind. 2002), argues Thompson waived his challenges to the validity of his convictions by pleading guilty to the crimes. (See Appellee's Br. at 7-9.) We acknowledge Mapp held: "Defendants waive a whole panoply of rights by voluntarily pleading guilty. These include the right to a jury trial, the right against self-incrimination, the right of appeal, and the right to attack collaterally one's plea based on double jeopardy." 770 N.E.2d at 334-35. Thus, a person who pleads guilty pursuant to an agreement with the State is limited, on direct appeal, to challenging only the merits of any sentencing decision that was not fixed by the plea agreement. Id. at 333.

         [¶7] However, Thompson did not have a plea agreement. Instead, he pled guilty in open court to all charged crimes without an agreement that might provide him any benefit. We have held that such a circumstance is distinguishable from Mapp, such that a defendant has not waived his right to challenge the validity of the convictions that were entered. See McElroy v. State, 864 N.E.2d 392, 396 (Ind.Ct.App. 2007) (when guilty plea was entered without the benefit of a plea agreement, defendant "may raise a double jeopardy argument" on direct appeal), trans. denied.

         [¶8] We also note that declining to hold Thompson waived those arguments seems especially appropriate because, during his change of plea hearing, the trial court assured Thompson that it would not enter convictions that subjected him to double jeopardy:

THE COURT: Okay, if we get a factual basis today what will happen is that I will order a pre-sentence investigation report from the probation department so I can get to know you better and after I read the report and hearing evidence at a sentencing hearing I will decide what penalty to impose for these matters that you are pleading guilty to along with merging or joining these offenses if it's appropriate to do so. For example if the ...

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