Pyle, J.
Statement of the Case
Following a jury trial, Guffey was convicted of: (1) Class A felony conspiracy to commit child molesting; (2) Class A felony aiding, inducing, or causing attempted child molesting; (3) Class C felony conspiracy to commit child molesting, (4) Class C felony aiding, inducing, or causing attempted child molesting; and (5) Class B felony aiding, inducing, or causing attempted incest. The jury also determined that he was an habitual offender. [Footnotes omitted.]
While incarcerated in the county jail, Tracy D. Guffey (“Guffey”) made phone calls to his girlfriend. During these phone calls, which were recorded by the jail, Guffey encouraged his girlfriend to have sex with her twelve-year-old son so that she could make sure that he was not gay and told her to give her son [vodka and orange juice and to show him a pornographic movie] prior to having sex so that he would be more comfortable. …
On appeal [of his convictions and 85-year aggregate sentence], Guffey … [inter alia] argues that his convictions and sentences violate the actual evidence test of the Indiana Double Jeopardy Clause….
Because the record before us reveals that the trial court entered judgment of convictions on Counts II and IV before merging those convictions and that it also entered a separate sentence on Guffey’s habitual offender determination instead of enhancing one of his sentences, we remand to the trial court with instructions to correct these irregularities. … Additionally, as the State concedes, the evidence shows a reasonable possibility that Guffey’s remaining convictions on Counts I, III, and V were based on the same actual evidence, we remand to the trial court to vacate Counts III and V and instruct that trial court that it may resentence Guffey on Count I. …
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[Footnote 14:] At the sentencing hearing, the trial court merged Count II into Count I and imposed a thirty-five (35) year sentence on that Class A felony conspiracy to commit child molesting conviction. The trial court also merged Count IV into Count III, imposed an eight (8) year sentence on that Class C felony conspiracy to commit child molesting conviction and ordered it to be served concurrently with the sentence in Count I. On Count V, the Class B felony aiding, inducing, or causing an attempted incest conviction, the trial court imposed a twenty (20) year sentence and ordered it to be served consecutively to the sentence in Count I.
During the sentencing hearing, the trial court stated that it was imposing a separate thirty (30) year sentence for Guffey’s habitual offender determination. Additionally, the sentencing order, abstract of judgment, and chronological case summary indicate that the trial court imposed a separate thirty (30) year sentence for Guffey’s habitual offender finding and ordered that it be served consecutively to Counts I, III, and V.
In regard to the trial court’s act of merging Count II and Count IV, which were convictions for which the trial court had already entered a judgment of conviction, we note that “[a] trial court’s act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation” and that such a violation cannot be remedied by the “practical effect” of merging after a conviction has been entered. Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied. See also Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (explaining that “a merged offense for which a defendant is found guilty, but on which there is neither a judgment nor a sentence, is ‘unproblematic’ as far as double jeopardy is concerned”). Because the record reveals that the trial court entered judgment of conviction on Counts II and IV prior to merging these convictions, we remand this cause to the trial court with instructions to vacate Guffey’s judgment of convictions on Count II and Count IV.
We also remand this cause for the trial court to correct its sentencing as it relates to the habitual offender enhancement. It is well settled that an “habitual offender finding does not constitute a separate crime nor does it result in a separate sentence, rather it results in a sentence enhancement imposed upon the conviction of a subsequent felony.” Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001) (citing Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997); Pinkston v. State, 436 N.E.2d 306, 307-08 (Ind. 1982)). Because the trial court entered a separate sentence on Guffey’s habitual offender determination, we remand to the trial court with instructions to correct the sentencing order, abstract of judgment, and chronological case summary to reflect that the thirty (30) year habitual offender enhancement serves as an enhancement of Guffey’s Class A felony sentence in Count I.
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Guffey … argues that his convictions violate … double jeopardy. Specifically, he asserts that “[e]ntry of judgment of conviction as to four of the five counts violated Art. I, section 14” of the Indiana Constitution because his convictions all rested on the same evidence of his discussions with Mize regarding Mize having sexual intercourse with C.M. and Mize’s purchase of the vodka and orange juice. [Record citations omitted throughout.]
Guffey acknowledges that the trial court merged Count II into Count I and Count IV into Count III. He, however, argues that the trial court’s merger of some of the convictions was “improper and inadequate to resolve the double jeopardy issues.” (Guffey’s Br. 16). He requests that “this Court reverse on double jeopardy grounds the trial court’s entry of judgment of conviction as to all counts other than Count I, Conspiracy to Commit Child Molesting, a Class A felony[.]” (Guffey’s Br. 21-22). Because we have already remanded this case for the trial court to vacate the judgment of convictions on Count II and Count IV, see footnote 14, we need not further address this argument.
Thus, here, for purposes of addressing Guffey’s double jeopardy argument, we need only look at whether there is a double jeopardy violation in regard to Counts I, III, and V. …
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Here, the State charged Guffey, in Count I, with Class A felony conspiracy to commit child molesting, which required the State to prove beyond a reasonable doubt that Guffey with intent to commit the felony of child molesting agreed with Mize for her to perform or submit to sexual intercourse or deviate sexual conduct with C.M., a child under fourteen years of age, and that Mize purchased vodka and orange juice to facilitate the offense. [Citation omitted; record citations omitted throughout.] For the Class C felony conspiracy to commit child molesting offense as charged in Count III, the State was required to prove beyond a reasonable doubt that Guffey agreed with Mize to perform or submit to fondling or touching with C.M., a child under fourteen years of age, and that Mize purchased vodka and orange juice to facilitate the offense. [Citation omitted.] Lastly, for the Class B felony aiding, inducing, or causing incest offense as charged in Count V, the State was required to show that Guffey aided, induced, or caused Mize to attempt to engage in sexual intercourse or deviate sexual conduct with C.M., a child less than sixteen years of age, who Mize knew was biologically related to her. [Citation omitted.] At trial, the State relied on the evidence that Guffey had gotten Mize to agree to have sex with her son and that she went to the liquor store to buy vodka to give him to make him more comfortable. …
The State properly concedes that Guffey’s “convictions on Counts III and V violate[d] [Guffey’s] double jeopardy protections[]” because “Counts I through V were all based on the same act[.]” (State’s Br. 19). Accordingly, we remand to the trial court to vacate Counts III and V. The State requests that, when remanding this case, we instruct the trial court that it may resentence Guffey to a higher sentence on the Class A felony conviction in Count I “because it appears that the trial court intended to impose on [Guffey] a substantial penalty for his offenses[.]” (State’s Br. 20). Guffey, however, argues that the trial court should not be allowed to impose a harsher sentence on remand.
We have held that, on resentencing after the reversal of a conviction in a multicount proceeding, the trial court has “flexibility upon remand, including the ability to increase sentences for individual convictions without giving rise to a presumption of vindictive sentencing, so long as the aggregate sentence is no longer than originally imposed.” Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct. App. 2013), trans. denied. In so holding, we explained that “a trial court is likely to view individual sentences in a multi-count proceeding as part of an overall plan, a plan that can be overthrown if one or more of the convictions is reversed or reduced in degree.” Id. (relying on U.S. v. Shue, 825 F.2d 1111, 1114 (7th Cir. 1987), cert. denied; U.S. v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989), cert. denied). Given the circumstances of this case, we remand to the trial court to vacate Counts III and V, and we instruct the trial court that it may resentence Guffey on Count I. [Footnote omitted.]
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Crone, J., and Brown, J., concur.
Statement of the Case
Following a jury trial, Guffey was convicted of: (1) Class A felony conspiracy to commit child molesting; (2) Class A felony aiding, inducing, or causing attempted child molesting; (3) Class C felony conspiracy to commit child molesting, (4) Class C felony aiding, inducing, or causing attempted child molesting; and (5) Class B felony aiding, inducing, or causing attempted incest. The jury also determined that he was an habitual offender. [Footnotes omitted.]
While incarcerated in the county jail, Tracy D. Guffey (“Guffey”) made phone calls to his girlfriend. During these phone calls, which were recorded by the jail, Guffey encouraged his girlfriend to have sex with her twelve-year-old son so that she could make sure that he was not gay and told her to give her son [vodka and orange juice and to show him a pornographic movie] prior to having sex so that he would be more comfortable. …
On appeal [of his convictions and 85-year aggregate sentence], Guffey … [inter alia] argues that his convictions and sentences violate the actual evidence test of the Indiana Double Jeopardy Clause….
Because the record before us reveals that the trial court entered judgment of convictions on Counts II and IV before merging those convictions and that it also entered a separate sentence on Guffey’s habitual offender determination instead of enhancing one of his sentences, we remand to the trial court with instructions to correct these irregularities. … Additionally, as the State concedes, the evidence shows a reasonable possibility that Guffey’s remaining convictions on Counts I, III, and V were based on the same actual evidence, we remand to the trial court to vacate Counts III and V and instruct that trial court that it may resentence Guffey on Count I. …
….
[Footnote 14:] At the sentencing hearing, the trial court merged Count II into Count I and imposed a thirty-five (35) year sentence on that Class A felony conspiracy to commit child molesting conviction. The trial court also merged Count IV into Count III, imposed an eight (8) year sentence on that Class C felony conspiracy to commit child molesting conviction and ordered it to be served concurrently with the sentence in Count I. On Count V, the Class B felony aiding, inducing, or causing an attempted incest conviction, the trial court imposed a twenty (20) year sentence and ordered it to be served consecutively to the sentence in Count I.
During the sentencing hearing, the trial court stated that it was imposing a separate thirty (30) year sentence for Guffey’s habitual offender determination. Additionally, the sentencing order, abstract of judgment, and chronological case summary indicate that the trial court imposed a separate thirty (30) year sentence for Guffey’s habitual offender finding and ordered that it be served consecutively to Counts I, III, and V.
In regard to the trial court’s act of merging Count II and Count IV, which were convictions for which the trial court had already entered a judgment of conviction, we note that “[a] trial court’s act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation” and that such a violation cannot be remedied by the “practical effect” of merging after a conviction has been entered. Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied. See also Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (explaining that “a merged offense for which a defendant is found guilty, but on which there is neither a judgment nor a sentence, is ‘unproblematic’ as far as double jeopardy is concerned”). Because the record reveals that the trial court entered judgment of conviction on Counts II and IV prior to merging these convictions, we remand this cause to the trial court with instructions to vacate Guffey’s judgment of convictions on Count II and Count IV.
We also remand this cause for the trial court to correct its sentencing as it relates to the habitual offender enhancement. It is well settled that an “habitual offender finding does not constitute a separate crime nor does it result in a separate sentence, rather it results in a sentence enhancement imposed upon the conviction of a subsequent felony.” Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001) (citing Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997); Pinkston v. State, 436 N.E.2d 306, 307-08 (Ind. 1982)). Because the trial court entered a separate sentence on Guffey’s habitual offender determination, we remand to the trial court with instructions to correct the sentencing order, abstract of judgment, and chronological case summary to reflect that the thirty (30) year habitual offender enhancement serves as an enhancement of Guffey’s Class A felony sentence in Count I.
….
Guffey … argues that his convictions violate … double jeopardy. Specifically, he asserts that “[e]ntry of judgment of conviction as to four of the five counts violated Art. I, section 14” of the Indiana Constitution because his convictions all rested on the same evidence of his discussions with Mize regarding Mize having sexual intercourse with C.M. and Mize’s purchase of the vodka and orange juice. [Record citations omitted throughout.]
Guffey acknowledges that the trial court merged Count II into Count I and Count IV into Count III. He, however, argues that the trial court’s merger of some of the convictions was “improper and inadequate to resolve the double jeopardy issues.” (Guffey’s Br. 16). He requests that “this Court reverse on double jeopardy grounds the trial court’s entry of judgment of conviction as to all counts other than Count I, Conspiracy to Commit Child Molesting, a Class A felony[.]” (Guffey’s Br. 21-22). Because we have already remanded this case for the trial court to vacate the judgment of convictions on Count II and Count IV, see footnote 14, we need not further address this argument.
Thus, here, for purposes of addressing Guffey’s double jeopardy argument, we need only look at whether there is a double jeopardy violation in regard to Counts I, III, and V. …
….
Here, the State charged Guffey, in Count I, with Class A felony conspiracy to commit child molesting, which required the State to prove beyond a reasonable doubt that Guffey with intent to commit the felony of child molesting agreed with Mize for her to perform or submit to sexual intercourse or deviate sexual conduct with C.M., a child under fourteen years of age, and that Mize purchased vodka and orange juice to facilitate the offense. [Citation omitted; record citations omitted throughout.] For the Class C felony conspiracy to commit child molesting offense as charged in Count III, the State was required to prove beyond a reasonable doubt that Guffey agreed with Mize to perform or submit to fondling or touching with C.M., a child under fourteen years of age, and that Mize purchased vodka and orange juice to facilitate the offense. [Citation omitted.] Lastly, for the Class B felony aiding, inducing, or causing incest offense as charged in Count V, the State was required to show that Guffey aided, induced, or caused Mize to attempt to engage in sexual intercourse or deviate sexual conduct with C.M., a child less than sixteen years of age, who Mize knew was biologically related to her. [Citation omitted.] At trial, the State relied on the evidence that Guffey had gotten Mize to agree to have sex with her son and that she went to the liquor store to buy vodka to give him to make him more comfortable. …
The State properly concedes that Guffey’s “convictions on Counts III and V violate[d] [Guffey’s] double jeopardy protections[]” because “Counts I through V were all based on the same act[.]” (State’s Br. 19). Accordingly, we remand to the trial court to vacate Counts III and V. The State requests that, when remanding this case, we instruct the trial court that it may resentence Guffey to a higher sentence on the Class A felony conviction in Count I “because it appears that the trial court intended to impose on [Guffey] a substantial penalty for his offenses[.]” (State’s Br. 20). Guffey, however, argues that the trial court should not be allowed to impose a harsher sentence on remand.
We have held that, on resentencing after the reversal of a conviction in a multicount proceeding, the trial court has “flexibility upon remand, including the ability to increase sentences for individual convictions without giving rise to a presumption of vindictive sentencing, so long as the aggregate sentence is no longer than originally imposed.” Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct. App. 2013), trans. denied. In so holding, we explained that “a trial court is likely to view individual sentences in a multi-count proceeding as part of an overall plan, a plan that can be overthrown if one or more of the convictions is reversed or reduced in degree.” Id. (relying on U.S. v. Shue, 825 F.2d 1111, 1114 (7th Cir. 1987), cert. denied; U.S. v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989), cert. denied). Given the circumstances of this case, we remand to the trial court to vacate Counts III and V, and we instruct the trial court that it may resentence Guffey on Count I. [Footnote omitted.]
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Crone, J., and Brown, J., concur.