Irwin McNeil Scott v. State of Indiana (mem. dec.)

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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. FILED Nov 03 2017, 7:39 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery Haupt Law Office of Jeffery Haupt South Bend, Indiana Curtis T. Hill, Jr. Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Irwin McNeil Scott, November 3, 2017 Appellant-Defendant, Court of Appeals Case No. 71A05-1706-CR-1225 v. State of Indiana, Appellee-Plaintiff. Appeal from the St. Joseph Superior Court The Honorable Elizabeth C. Hurley, Judge Trial Court Cause No. 71D08-1610-F3-64 Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 71A05-1706-CR-1225 | November 3, 2017 Page 1 of 5 [1] Irwin McNeil Scott appeals his sentence for two counts of failure to remain at the scene of an accident. Scott raises two issues, one of which we find dispositive and revise and restate as whether his convictions violate double jeopardy. We reverse and remand. Facts and Procedural History [2] On October 12, 2016, police stopped the vehicle in which Scott and two children were passengers. The driver of the vehicle exited to talk to the police officer, and Scott, who was intoxicated, moved into the driver’s seat and drove away. The police attempted to pull him over, but he kept driving for multiple blocks, crashed into a pole, flipped the vehicle over, and left the scene without checking if he could aid anyone or waiting for the police to arrive. The two children each sustained serious bodily injury as a result of the accident. [3] On October 14, 2016, the State charged Scott with two counts of failure to remain at the scene of an accident as level 3 felonies and one count of resisting law enforcement as a level 6 felony. On March 27, 2017, the court held a hearing, and Scott pled guilty as charged without a plea agreement. When asked by the court what differentiated the two counts of failure to remain at the scene of an accident, the prosecutor indicated that there were two separate victims. [4] On May 10, 2017, the court held a sentencing hearing. It sentenced Scott to consecutive terms of ten years for each count of failure to remain at the scene of Court of Appeals of Indiana | Memorandum Decision 71A05-1706-CR-1225 | November 3, 2017 Page 2 of 5 an accident and two years for resisting law enforcement, for an aggregate sentence of twenty-two years. Discussion [5] The issue is whether Scott’s convictions violate double jeopardy principles. Scott argues that his sentences on his convictions for failure to remain at the scene of an accident violate his protections against double jeopardy. The State concedes that Scott is correct that both convictions for leaving the scene constitute one offense under the 2016 version of the statute1 and that this case should be remanded to resolve the double jeopardy issue. The State asserts that “because [Scott] left the scene of only one accident one conviction should be vacated.” Appellee’s Brief at 11. [6] Article 1, Section 14 of the Indiana Constitution provides: “No person shall be put in jeopardy twice for the same offense.” “[T]wo or more offenses are the “same offense” in violation of the Indiana Double Jeopardy Clause if, “with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Sistrunk v. State, 36 N.E.3d 1051, 1053 (Ind. 2015) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). In addition to the protections afforded by the Indiana Double 1 The State notes that the legislature has since amended the leaving the scene statute to allow for separate offenses and consecutive sentences for multiple victims. See Appellee’s Brief at 10. Court of Appeals of Indiana | Memorandum Decision 71A05-1706-CR-1225 | November 3, 2017 Page 3 of 5 Jeopardy Clause, the Indiana Supreme Court “has ‘long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson.’” Id. (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)). “Among these is the rule that precludes a ‘[c]onviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished.’” Id. at 1053-1054 (quoting Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (emphasis added) (quoting Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring))). [7] Under double jeopardy analysis, Scott cannot be convicted of and sentenced for both charges of failure to remain at the scene. See Nield v. State, 677 N.E.2d 79, 82 (Ind. Ct. App. 1997) (remanding with instructions to dismiss one of the convictions for leaving the scene of an accident where the defendant struck two separate motorcycles but the impacts were nearly simultaneous and were the result of the same improper turn); see also Wood v. State, 999 N.E.2d 1054, 1066 (Ind. Ct. App. 2013) (holding that the defendant’s act of leaving the scene of a boating accident can support only one conviction under Ind. Code § 14-15-4-1 even though two people died and another was injured), trans. denied, cert. denied, 135 S. Ct. 250 (2014). We vacate Scott’s conviction and sentence for failure to Court of Appeals of Indiana | Memorandum Decision 71A05-1706-CR-1225 | November 3, 2017 Page 4 of 5 remain at the scene of an accident under Count II and remand for resentencing.2 Conclusion [8] For the foregoing reasons, we vacate Scott’s conviction of failure to remain at the scene of an accident under Count II and remand for resentencing on the remaining convictions. [9] Reversed and remanded. Najam, J., and Kirsch, J., concur. 2 Because we hold Scott’s convictions constitute double jeopardy and remand for the court to resentence him, we need not address Scott’s argument that his sentence is inappropriate. Court of Appeals of Indiana | Memorandum Decision 71A05-1706-CR-1225 | November 3, 2017 Page 5 of 5

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