Najam, J.
Larry D. Bass appeals his convictions for operating a vehicle while intoxicated (“OWI”), one as a Class A misdemeanor and one as a Class C misdemeanor, following a bench trial. …
On December 10, 2014, Joanna Tucker discovered Bass unconscious inside of his running, but stopped, vehicle in the middle of the intersection … Columbus Police Department Officer Benjamin Goodin arrived thereafter and “immediately saw” that Bass’s eyes “were bloodshot and glassy”; that his eyelids “were droopy”; that his “speech was extremely slurred to the point that he had difficulty formulating a thought or sentence”; and that he “had very poor balance where he couldn’t stand up unassisted.”
… Bass consented to a blood draw. The result of that blood draw demonstrated that Bass had methadone, oxycodone, and zolpidem in his blood at the time of the traffic incident. The State then charged Bass with two counts of OWI, one as a Class A misdemeanor (for the alleged endangerment of others) and one as a Class C misdemeanor (for operating with a schedule I or II controlled substance in the body). At his ensuing bench trial, Bass testified that he had an affirmative defense to at least the Class C misdemeanor allegation, namely, that he had prescriptions for each of the controlled substances found in his blood and that he was “taking them” in the manner that his “doctor [had] told [him] to take them.”
The trial court rejected Bass’s alleged defense, stating:
it is a defense . . . that the accused person consumed the controlled substance under a valid prescription . . . . But it is not a defense if you are not able to, if taking that medication puts you in a position where you can cause harm to others. So as to the A misdemeanor I will find that you are guilty . . . . it’s abundantly clear to me that you couldn’t have been taking them in the manner in which they were prescribed on that particular occasion. . . . [Y]ou were under the influence of those drugs in such a manner that you ought not to have been behind the wheel of a car. So I am going to find that you are guilty both of the A and C misdemeanor[s].
Thereafter, the trial court held a sentencing hearing. Following that hearing, the court entered its written order against Bass. In that order, which is simply titled “Judgment,” the court acknowledged that Bass had been found guilty on both counts but then stated that “the counts merge for the purpose of sentencing.” The court then ordered Bass to serve one year, all but ten days of which it suspended to probation. The court did not specifically delineate on which counts it had entered its judgment of conviction. This appeal ensued.
On appeal, Bass contends that the trial court violated his double jeopardy rights when it entered judgment against him for both Class A misdemeanor OWI and Class C misdemeanor OWI. “Entry of conviction for both an offense and its lesser-included offenses ‘is impermissible under both state and federal double jeopardy rules.’” Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App. 2015) (quoting Wentz v. State, 766 N.E.2d 351, 359-60 (Ind. 2002)), trans. denied. …
Further, as we have explained:
If a trial court does not formally enter a judgment of conviction on a [finding] of guilty, then there is no requirement that the trial court vacate the “conviction,” and merger is appropriate. Townsend v. State, 860 N.E.2d 1268, 1270 (Ind. Ct. App. 2007) (quoting Green v. State, 856 N.E.2d 703, 704 (Ind. 2006)). However, if the trial court does enter judgment of conviction on a [guilty finding], then simply merging the offenses is insufficient and vacation of the offense is required. See id.; Green, 856 N.E.2d at 704; Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008) …
Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (emphasis added).
The same is true here. In a document captioned “Judgment,” the trial court acknowledged that Bass had been found guilty of both the Class A misdemeanor and the Class C misdemeanor before then declaring that the two counts merged for purposes of sentencing. This was not a sufficient remedy to the apparent double jeopardy concern. West, 22 N.E.3d at 875. Indeed, the State concedes this issue on appeal. Accordingly, we reverse and remand with instructions to vacate Bass’s conviction for the Class C misdemeanor OWI.
….
Bailey, J., concurs.
May, J., dissents with separate opinion.
May, Judge, dissenting.
I would address Bass’s statutory construction argument on the merits and vacate his guilty finding of Class C misdemeanor OWI, rendering moot the double jeopardy issue on which the majority relies. Accordingly, I dissent.
The Class C misdemeanor OWI for which Bass was found guilty required only that he “operate[d] a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite” in his body. Ind. Code § 9-30-5-1(c). The legislature also created a statutory defense to this version of OWI: “It is a defense to subsection (c) that the accused person consumed the controlled substance under a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner’s professional practice.”
Ind. Code § 9-30-5-1(d).
….
Thus, I would hold the trial court erred when it both accepted that Bass had valid prescriptions for the drugs found in his body and found Bass guilty of operating a vehicle with those substances in his body under Indiana Code Section 9-30-5-1(c). As such, I would reverse the court’s guilty finding as to the Class C misdemeanor and remand for the court to correct its record to indicate Bass was acquitted of that charge. …