ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy L. Bookwalter Jeffrey A. Modisett
Greencastle, Indiana Attorney General of Indiana
Deputy Attorney General
SAMUEL VALENTIN ) Defendant-Appellant, ) ) v. ) 49S02-9711-PC-628 ) STATE OF INDIANA, ) Plaintiff-Appellee. )Cause No. CR-86-155A
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Tonya Walton-Pratt, Judge
The defendant, Samuel Valentin, was convicted of robbery, conspiracy to kidnap, kidnaping, felony murder in the commission of robbery, and felony murder in the commission of kidnaping arising from his involvement in a 1986 hijacking of a van and the kidnaping and killing of its driver. The trial court merged the conviction for kidnaping with that for felony murder in the commission of kidnaping. On direct appeal, this Court vacated the conviction for robbery as a class A felony and ordered that
conviction and sentence be entered on the conviction as a class B felony, but otherwise
affirmed the trial court. Valentin v. State, 567 N.E.2d 792 (Ind. 1991). After remand, the
trial court entered sentences totaling 110 years. In this appeal from the sentencing
judgment, the defendant asserts a single claim: that the consecutive sentences imposed for
the offenses of conspiracy to commit kidnaping and murder in the commission of
kidnaping violate the Double Jeopardy Clause. In a memorandum decision, the Court of
Appeals vacated the conviction for conspiracy and the corresponding sentence, finding
that it constituted double jeopardy. The State sought rehearing based upon our
intervening recent decisions in Games v. State, 684 N.E.2d 466 (Ind. 1997), and
Grinstead v. State, 684 N.E.2d 482 (Ind. 1997). Denying rehearing by opinion, the Court
of Appeals conceded that the convictions would not violate the federal double jeopardy
test acknowledged in Games and Grinstead, but believed that precedent supported
construing the double jeopardy provision of the Indiana Constitution to provide greater
protection than its federal counterpart. Valentin v. State, 685 N.E.2d 1100 (Ind.Ct.App.
1997). The State seeks transfer, asserting in part that the opinion of the Court of Appeals
misconstrues applicable precedent.
Since our decisions in Games and Grinstead there has been considerable discussion by the Court of Appeals regarding the viability of the "manner in which the offenses are charged" test for double jeopardy claims.See footnote 1 We grant transfer to address this
In Games, we held that "this Court's previous interpretation of the federal Double Jeopardy Clause--which looked beyond the statutory elements, adding the requirement that a reviewing court look to the offenses as charged or to the jury instructions outlining the elements of the crimes--does not comport with federal jurisprudence." Games, 684 N.E.2d at 474. In this case, responding to the State's petition for rehearing in light of Games and Grinstead, the Court of Appeals determined that, as a matter of Indiana constitutional law, it still looks to the manner in which the offenses are charged. Valentin, 685 N.E.2d at 1102.
The Court of Appeals opined that the defendant, by citing to Buie v. State, 633 N.E.2d 250, 260 (Ind. 1994), "invoked the protections of the Indiana Constitution in his brief and through his reliance on Indiana case law," Valentin, 685 N.E.2d at 1102. The court also relied upon Buie to conclude that "Indiana's double jeopardy analysis goes beyond the simple comparison of statutes called for under federal jurisprudence . . . . " Id.
We first note that the defendant in the present case expressly invoked only the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Brief of Petitioner-Appellant at 1, 5, 6. The defendant's brief does not provide a separate analysis of the state double jeopardy claim or argue why it provides protection different
than the federal constitution. Brief of Appellant at 11-12. In the absence of any separate
state constitutional law argument by defendant, the Court of Appeals should not have
based its reversal of defendant's conspiracy conviction on the Indiana double jeopardy
clause. Buie is insufficient to support a claim of double jeopardy under the Indiana
Constitution. We leave for another day the question of whether double jeopardy claims
under Article 1, Section 14 of the Indiana Constitution are entitled to an analysis separate
and distinct from the federal constitution.
Transfer is granted. The trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, SELBY, and BOEHM, JJ., concur.
Oct. 17, 1997); Valentin v. State, 685 N.E.2d 1100 (Ind.Ct.App. 1997).
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