ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Terrance W. Richmond Karen M. Freeman-Wilson
Milan, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
SUPREME COURT OF INDIANA
TERRELL WILLIAMS, ) ) Appellant (Defendant Below ), ) No. 49S05-0108-CR-378 ) In the Supreme Court v. ) ) STATE OF INDIANA, ) No. 49A05-0011-CR-485 ) In the Court of Appeals Appellee (Plaintiff Below ). )
February 15, 2002
(R. at 248.)
As he began to walk away from Witten, Williams saw several police cars
coming toward him. He cut out running toward a building where his
brother lived about a hundred yards away. (Supp. R. at 12, 25.)
His knock went unanswered, so he locked himself in the empty apartment
across the hall.
Officers Weaver See footnote and Knecht saw a black male, heavy build, wearing a white T-shirt and black jogging pants enter the apartment building. (Supp. R. at 12.) They obtained the building managers consent to search the empty apartment, where they found Williams and arrested him for residential entry. Williams had two rocks of crack cocaine hidden inside his right sock.
Later that day, the State charged Williams with residential entry and possession of
cocaine as class D felonies in Marion Superior Court 9 (the Court 9
charges). Williams agreed to plead guilty to possession of cocaine as a
class D felony and serve 915 days in jail. In return, the
State agreed not to file habitual or B felony charges against him.
(Supp. R. at 11.) This deal was apparently negotiated on December 8
See footnote On December 29, 1998, the court entered judgment of conviction.
The court read into evidence the probable cause affidavit to serve as
the factual basis for Williams guilty plea.
In the meantime, on December 16, 1998, the State had filed charges against Williams in a different room of the same court. It alleged dealing cocaine within 1,000 feet of a school as a class A felony and possession of cocaine within 1,000 feet of a school as a class B felony (the Court 20 charges). During an initial hearing December 23, 1998, Williams pled not guilty. On January 29, 1999, the State added a charge that Williams was an habitual offender.
It is unclear why the plea agreement was not withdrawn after the Court
20 charges were filed, except that there was a fair amount of confusion
on both sides. Williams attorney notified Williams that additional charges were pending against
him in Court 20, but it seems Williams was under the mistaken belief
that the Court 20 charges stemmed from an unrelated incident in mid-December 1998.See footnote
(Supp. R. at 7-8, 20-21.) However, the Court 20 charges actually related
to Williams sale of drugs to Detective Witten on October 12
The prosecution also suffered from a disconnect. (Supp. R. at 22.)
Different deputy prosecutors handled the two cases, and the Court 9 prosecutor had
no knowledge of the Court 20 charges. (R. at 38.)
Williams moved to dismiss the Court 20 charges, which are the subject of
this appeal. The motion was denied. A jury found Williams guilty
of dealing in cocaine as a class A felony, possession of cocaine as
a class B felony, and being an habitual offender. The trial court
sentenced him to forty years, with twenty suspended, for the dealing and possession
charges and added thirty years for the habitual offender finding. The Court
of Appeals affirmed. Williams v. State, No. 49A05-0011-CR-485, slip op. (Ind. Ct.
App. May 31, 2001).
A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a different offense or for the same offense based upon different facts.
(2) The former prosecution resulted in an acquittal or a conviction of the
defendant or in an improper termination under section 3 [IC 35-41-4-3] of this
(3) The instant prosecution is for an offense with which the defendant should
have been charged in the former prosecution.
Williams circumstances satisfy the first two statutory provisions. Williams was convicted in a former prosecution for possession of cocaine as a result of his October 12th arrest. Thus, the outcome of this case centers on whether the instant prosecution is for offenses with which Williams should have been charged in the previous prosecution.
The words should have been charged must be read in conjunction with Indianas
joinder statute. Sharp v. State, 569 N.E.2d 962, 967 (Ind. Ct. App.
1991) (citing State v. Burke, 443 N.E.2d 859 (Ind. Ct. App. 1983)).
The joinder statute provides in relevant part:
A defendant who has been tried for one (1) offense may thereafter move to dismiss an indictment or information for an offense which could have been joined for trial with the prior offenses under section 9 of this chapter. See footnote The motion to dismiss shall be made prior to the second trial, and shall be granted if the prosecution is barred by reason of the former prosecution.
Ind. Code Ann. § 35-34-1-10(c) (West 1998) (footnote added). Our Court of Appeals has characterized the statute this way: Thus, our legislature has provided that, where two or more charges are based on the same conduct or on a series of acts constituting parts of a single scheme or plan, they should be joined for trial. State v. Wiggins, 661 N.E.2d 878, 880 (Ind. Ct. App. 1996) (emphasis in original). This statutory scheme provid[es] a check upon the otherwise unlimited power of the State to pursue successive prosecutions. Wiggins, 661 N.E.2d at 881. Where the State chooses to bring multiple prosecutions for a series of acts constituting parts of a single criminal transaction, it does so at its own peril.
This Court has interpreted the language of Indianas successive prosecution statute on only
one occasion. In Seay v. State, 550 N.E.2d 1284 (Ind. 1990), the
defendant made four separate sales of controlled substances to a police informant and
an undercover police officer in the late summer and early fall of 1986.
Id. at 1286. The defendant was tried and convicted of dealing
in a controlled substance for sales made on July 14, 1986, and August
4, 1986. Id. While the jury was deliberating, the State filed
additional charges based on sales made August 14, 1986, and September 2, 1986.
Id. Seay argued the subsequent prosecution was barred by Ind. Code
§ 35-34-1-10(c) and § 35-41-4-4. Id. at 1287. We held that
these four events were sufficiently separated by time and place that joinder was
not required and subsequent prosecutions were thus permissible. Id. at 1288.
These facts show that the Court 9 and Court 20 charges were based
on a series of acts so connected that they constituted parts of a
single scheme or plan. Therefore, they should have been charged in a
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.