Most of us have heard the phrase “double jeopardy” and the general concept is pretty simple to understand: You cannot be prosecuted or punished for the same offense twice. This prohibition is found in the Fifth Amendment to the United States Constitution, Article I, Section 14 of the Indiana Constitution and is actually codified under Indiana Code (“IC”) 35-38-1-6 that a trial court may not enter judgement of conviction and sentence for both an offense and an “included offense” as defined under IC 35-31.5-2-168. The concept of double jeopardy was historically a procedural bar to subsequent prosecutions for the same offense (whether after an acquittal or conviction), it evolved beyond procedure to a substantive bar to multiple convictions or punishments for the same offense in a single trial.
While the general concept is easy to understand, actual application gets very complicated as Double Jeopardy matters are broken down into two categories: 1. Substantive Double Jeopardy (claims based on multiple convictions) and 2. Procedural Double Jeopardy (claims based on multiple prosecutions). Indiana Courts of Appeal often treated these two principles alike when it came to legal analysis following the decision in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). However, this has led to a patchwork of decisions that provided a variety inconsistent holdings and little guidance on just how this concept applies. There has been recent updates in this area of law in Indiana that are helpful in understanding this often misunderstood concept as it pertains to substantive double jeopardy under Article I, Section 14 of the Indiana Constitution.
Substantive Double Jeopardy
Claims of Double Jeopardy violations based upon multiple convictions fall under what’s known as substantive double jeopardy. Since the Richardson decision, which involved determining an evaluation of the “statutory elements” or “actual evidence” tests, the patchwork results of substantive double jeopardy cases left many confused on what exactly the standard is. In December of last year, the Indiana Supreme Court decided Wadle v. State, 151 N.E.3d 227 (Ind. 2020), which overruled Richardson with respect to substantive double jeopardy matters.
Under Wadle, when an individual’s conduct involves a single act or transaction that implicates multiple criminal statutes (rather than a single statute), a 2-part inquiry is done: 1. A court must determine, under included-offense statutes, whether one charged offense encompasses another charged offense, and 2. Looking at the underlying facts (both in the charging information and what is produced at trial) to determine whether the charged offenses are the “same.” If we are presented with two separate and distinct crimes, there’s no substantive double jeopardy issue, but if the facts show a single continuous crime, and one statutory offense is included in the other, then there is a presumption that the legislation intends for an alternative (i.e. not cumulative) sanction. The State, however, can rebut the presumption only by showing that the statute, either in express terms or by unmistakable implication, clearly permits multiple punishments.
This test is still slightly difficult to understand, but the facts in Wadle do help highlight the concept. Jordan Wadle had a night out drinking at a bar, only to reach the point of intoxication whereby a bar fight ensued. Eventually getting into his car, Wadle appeared to leave, only to strike one of the individuals with his vehicle at least two times, pinning the man against a guardrail, fracturing his skull and leaving multiple broken ribs. After leaving the scene, law enforcement eventually caught up with Wadle and his blood alcohol level revealed he was nearly two times the legal limit. Wadle was charged with multiple felony offenses including aggravated battery, leaving the scene of an accident, operating a vehicle while intoxicated causing serious bodily injury, and operating a vehicle while intoxicated with a prior conviction. Eventually being found not guilty on the felony aggravated battery, Wadle was convicted on the remaining counts and sentenced to an aggregate term of 16 years with 2 years probation.
In deciding the issues contained within Wadle, the Indiana Supreme Court first reminded us that core idea of substantive double jeopardy is to restrain the courts from imposing multiple punishments for the same offense and NOT the legislative authority to define crimes and fix punishments (this being reserved for our General Assembly), or in simpler terms: A court may not exceed its authority by convicting and punishing someone in a single trial beyond what the statute permits.
As to the first step, the Court looked as to whether the statutes Wadle was convicted under permit multiple punishments (expressly or by unmistakable implication) which the Court found that none of the operating a vehicle while intoxicated statutes permitted cumulative punishment and that the statutes at issue were included offenses of each other. Thus, substantive double jeopardy would preclude punishment all of the operating a vehicle while intoxicated statutes.
As to the remaining count Wadle was found guilty of (leaving the scene of an accident), the Court used the test to determine if sentencing under this count and the operating a vehicle while intoxicated causing serious bodily injury would violate substantive double jeopardy concerns. The Court found that neither statute would permit multiple convictions (making clear that enhancements are not subject to double jeopardy concerns), and ultimately finding that, under the included-offense statutes, the offense of operating a vehicle while intoxicated causing serious bodily injury is an included-offense of the felony leaving the scene of an accident. Finding that the facts of the case support that the two offenses are the same (because they were so compressed in terms of time, place, singleness of purpose and continuity of action), they were one continuous transaction that required substantive double jeopardy protections and vacated all convictions except the leaving the scene of an accident (rejecting the State of Indiana’s argument that the General Assembly had intended for separate punishments because Wadle committed the drunk driving offense before the leaving the scene of an accident).
From this new test, guidance is provided on substantive double jeopardy matters but there is also an important distinction in that the Wadle test does not apply in procedural double jeopardy matters. This highlights the importance of making sure your Attorney is one who is aware and researched in this area to prevent overly cumulative sentences.
If you or somebody you know has recently been accused of a crime or has questions about the criminal case process, contact the experienced criminal defense attorneys at Banks & Brower, LLC. We are available at all times by calling us at 317-870-0019 or by emailing firstname.lastname@example.org.