Jones v. State

976 N.E.2d 1271

Shiloh JONES, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A04–1202–CR–74.

Court of Appeals of Indiana.

Oct. 29, 2012.

Rehearing Denied Dec. 13, 2012.

Deborah Markisohn, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Shiloh Jones (“Jones”) appeals his convictions and sentence for domestic battery ¹ as a Class D felony, strangulation,² a Class D felony, criminal confinement ³ as a Class D felony, domestic battery ⁴ as a Class A misdemeanor, battery ⁵ as a Class A misdemeanor, and interference with reporting a crime ⁶ as a Class A misdemeanor. On appeal, we address the following issues:

I. Whether Jones's notice of appeal was timely filed;

II. Whether Jones's multiple convictions for battery violate Indiana's constitutional prohibition against double jeopardy;

III. Whether Jones's criminal confinement conviction violates Indiana's constitutional prohibition against double jeopardy;

IV. Whether the presiding judge had the authority to vacate the sentence ordered by the judge pro tempore; and

V. Whether the prosecutor committed misconduct by vouching for the complaining witness's credibility by assuring jurors during the closing argument that she was telling the truth.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

In April 2011, Jones, his girlfriend R.O., and their two children, both of whom were under two years of age, lived together in a house in Indianapolis. During the afternoon of April 13, 2011, Jones and R.O. got into an argument about housework and child care responsibilities. A short time later, the verbal altercation became physical; Jones poured baby formula on R.O.'s face, slapped and bit her face, and choked her. Tr. at 34. Jones also pushed R.O. down on the couch, sat on her, and told her she couldn't leave. Id. R.O. took their one-year-old child into the couple's bedroom, but Jones “told [R.O.] to come out of the room[,] ... grabbed [her] by the hair and snatched [her] out of the room ... draggin' from the floor onto the livin' room [sic]....” Id. at 36. At various times thereafter, Jones slapped, pushed, and choked R.O. while the couple's two children were in the room. Id. at 37. As the two tussled, Jones threw R.O. down to the floor and her knee “busted a little bit to where [her] skin had broke.” Id. at 40. At one point Jones also bit R.O. on the side of her face. Id. at 47. R.O. estimated that the entire episode lasted “between four and like eight o'clock,” id. at 83, after which Jones took R.O.'s cell phone and went outside to his vehicle. R.O. looked for the two cordless phones that were usually in the house, but could not find either of them. Id. 43–44. That night, Jones slept in the living room, and R.O. slept in the bedroom with the two children.

When Jones left the house around 8:30 the next morning, R.O. called a family member and later called the police. The State arrested Jones and charged him with domestic battery as a Class D felony; strangulation, a Class D felony; criminal confinement as a Class D felony; domestic battery as a Class A misdemeanor; battery as a Class A misdemeanor; and interferencewith reporting a crime as a Class A misdemeanor.

Jones was tried to a jury in the courtroom of the Honorable Barbara A. Collins. On November 14, 2011, Commissioner John J. Boyce was appointed judge pro tempore and presided over Jones's trial. Appellant's App. at 134. During closing argument, the deputy prosecutor asserted that R.O. had no reason to falsify her testimony and stated, “[S]he's still here because it's the right thing and she was telling you the truth.” Tr. at 159. Jones was convicted on all six counts. On November 28, 2011, Commissioner Boyce sentenced Jones to two years on each felony count and one year on each misdemeanor count with all sentences to be served concurrently. Jones's two-year sentence was ordered to be served as follows: twelve months at the Department of Correction (“DOC”), six months on Community Corrections, and six months to be suspended and served on probation. Tr. 314–16.

Jones's sentencing was complicated by the trial court's need to address a probation violation from a previous conviction. During a December 12, 2011 hearing, the trial court noted, “[t]here are some things that happened in the sentencing which couldn't happen, okay, without at least some more evaluations and that's what's going to happen today, it's going to be a Community Corrections evaluation and then the sentencing is going to [be] redone.” ⁷Tr. at 370. “I have to take into consideration everything, your past in your probation case, your presentence investigation and this new evaluation. They're going to be looking at your mental health....” Id. at 371. The trial court set a second sentencing hearing.

On January 24, 2012, Judge Collins conducted a second sentencing hearing, which resulted in what is referred to in the CCS as “amended sentencing.” Appellant's App. at 16. Jones was sentenced to 730 days at the DOC on each felony count and 365 days at the DOC on each misdemeanor count with all sentences to run concurrently. Id. at 16–17, 19–20. Jones now appeals.

DISCUSSION AND DECISION

I. Timeliness of Filing Notice of Appeal

As a preliminary matter, we address the State's contention that Jones's appeal was not timely filed. Commissioner Boyce presided over Jones's jury trial, held on November 14, 2011, and his sentencing hearing, held on November 28, 2011. The State contends that because Commissioner Boyce served as a judge pro tempore for the trial and the sentencing hearing, the sentence imposed on November 28, 2011 constituted a final appealable order. Appellee's Br. at 7. ⁸

“A party initiates an appeal by filing a Notice of Appeal with the Clerk ... within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary....” Ind. Appellate Rule 9(A)(1). The State contends that the thirty days ran from November 28, 2011 and expired in December 2011. As such, the State argues that Jones's notice of appeal, which was filed February 16, 2012, was untimely filed. We disagree.

A notice of appeal must be filed “with the Clerk ... within thirty (30) days after the entry of a Final Judgment is noted in the [ CCS ].” App. R. 9(A)(1) (emphasis added). Here, the trial court did not issue an “Order of Judgment of Conviction” until January 24, 2012. Appellant's App. at 21–24. While the CCS reflects that a hearing occurred on November 28, 2011 for sentencing, on December 5, 2011 for a bond review, and on January 24, 2012 for sentencing, the CCS reflects that the “Order of Judgment of Conviction” was entered only on January 24, 2012. Appellant's App. at 14–15, 21. Jones's notice of appeal, which was filed less than thirty days after the entry of final judgment was noted in the CCS, was timely filed. Id. at 21–24.

II. Battery and Double Jeopardy

Jones contends that his multiple convictions for battery violate Indiana's constitutional prohibition against double jeopardy. Specifically, he contends that he cannot be convicted for domestic battery as a Class D felony (Count I), domestic battery as a Class A misdemeanor (Count IV), and battery as a Class A misdemeanor (Count V) because “the evidence presented supports but a single offense of domestic battery.” Appellant's Br. at 7. Jones bases his claim on the “actual evidence test” enunciated by the Indiana Supreme Court in Richardson v. State, 717 N.E.2d 32 (Ind.1999) and on the fact that Counts IV and V are each a lesser-included offense of Count I. Appellant's Br. at 5–8. Davenport v. State, 734 N.E.2d 622, 624 (Ind.Ct.App.2000) (greater offense is the “same” for purposes of double jeopardy as any lesser offense included in it) (citing Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)), trans. denied (2001). We review whether multiple convictions violate the prohibition against double jeopardy de novo. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind.Ct.App.2005).

The State fails to address this issue. Relying on its argument that Jones's appeal was untimely filed, the State offers just one sentence: “Defendant's double jeopardy claim, even if correct, would only require this Court to vacate the misdemeanor battery convictions, ... but as all counts were ordered to be served concurrently, such would have no effect on Defendant's actual sentence.” Appellee's Br. at 8. This court will not undertake the burden of developing an argument on behalf of a party on appeal. Hall v. State, 837 N.E.2d 159, 160 (Ind.Ct.App.2005), trans. denied (2006). Nonetheless, it is our duty to decide cases correctly. Because this issue was raised by Jones and is properly before us and because our standard of review is de novo, we address the merits of Jones's double jeopardy claim.

The Indiana Constitution's Double Jeopardy Clause (“the Double Jeopardy Clause”), found in Article 1, Section 14 of the Indiana Constitution, “was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression.” Richardson, 717 N.E.2d at 49. Two or more offenses are the “same offense” in violation of the 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. Id.

Under the “actual evidence” test, the evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. Id. at 53. To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used...