HANCOCK, Joseph N., ) Supreme Court appellant, ) cause no. 47S01-0203-CR-190 v. ) ) Court of Appeals STATE OF INDIANA, ) cause no. 47A01-0102-CR-63 appellee. ) ) Trial Court ) cause no. 47C01-9908-CF-398
Following a jury trial, judgment was entered against the appellant herein, Joseph N.
Hancock, on convictions of Rape as a Class A felony and Criminal Deviate
Conduct as a Class A felony. Appellant was sentenced to fifty years
on the Rape charge, and fifty years on the Criminal Deviate Conduct charge,
the sentences to be served consecutively. The Court of Appeals affirmed.
Hancock v. State, 758 N.E.2d 995 (Ind. Ct. App. 2001). The appellant
filed, by counsel, a petition seeking transfer of jurisdiction pursuant to Appellate Rules
56(B) and 57.
Rape is generally a Class B felony that, under certain circumstances, can be
elevated to Class A status.
See Ind. Code § 35-42-4-1. In this
instance, appellant was convicted and sentenced for Rape as a Class A felony
because the offense was facilitated by drugging the victim without the victims knowledge.
See Ind. Code § 35-42-4-1(b)(4). Criminal Deviate Conduct is also generally
a Class B felony that may be elevated, and appellant similarly received a
Class A felony conviction and sentence, again because the offense was facilitated by
the same drugging of the victim without the victims knowledge. See Ind.
Code § 35-42-4-2.
We have held that where a felony is elevated in class based on
the same statutory factor and factual basis that was used to elevate another
felony in class, the two cannot stand together and one must be reduced
See Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002).
Pursuant to Appellate Rule 58, we grant transfer of jurisdiction and direct that
appellants Criminal Deviate Conduct conviction be reduced to a class B felony and
that he be re-sentenced accordingly. In all other respects, the decision of
the Court of Appeals is summarily affirmed.
See Ind. Appellate Rule 58(A)(2).
The cause is remanded to the trial court for proceedings consistent with
The Clerk is directed to send a copy of this order to Hon. Richard D. McIntyre, Judge of the Lawrence Circuit Court and to all counsel of record.
Done at Indianapolis, Indiana this 22nd day of March, 2002.
s/Randall T. Shepard
______________________________ Randall T. Shepard
Chief Justice of Indiana
All Justices concur.