Altice, J.
A jury found Kameron Martin guilty of, among other things, murder and robbery as a Level 2 felony, elevated based on the serious bodily injury sustained by the murder victim when he was shot and killed. To avoid a double jeopardy violation, the trial court entered the robbery conviction as a Level 3 felony rather than a Level 2 felony. On appeal, Martin argues that the robbery conviction should have been reduced to a Level 5 felony because the use of a deadly weapon element, relied upon by the trial court as the basis for the Level 3 felony, was not found by the jury beyond a reasonable doubt.
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On April 7, 2016, the State charged Martin with four counts – murder (Count 1), felony murder (Count 2), Level 2 felony robbery (Count 3), and Level 4 felony unlawful possession of a firearm by a serious violent felon (Count 4). On June 8, 2016, the State amended the information to include a charge of Level 3 felony conspiracy to commit robbery (Count 5). Following a three-day trial in early December 2018, the jury found Martin guilty on all counts as charged, except that the bifurcated portion relating to the serious violent felon determination had yet to be held. On the State’s motion, the trial court dismissed Count 4.
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The trial court then sentenced Martin to consecutive terms of sixty-two years for murder and ten years for Level 3 felony robbery. On appeal, Martin challenges only his robbery conviction, arguing that it should have been entered as a Level 5 rather than a Level 3 felony.
… Robbery as a Level 5 felony is a lesser-included offense of robbery as a Level 2 felony, as is robbery as a Level 3 felony when elevated based on bodily injury to the victim. But robbery as a Level 3 felony based on the use of a deadly weapon is not necessarily a lesser-included offense of robbery as a Level 2 felony.
Here, because the only injury alleged by the State was the gunshot wound that resulted in the victim’s death, the robbery conviction could not be elevated to a Level 3 felony based on the bodily injury suffered by the victim. See Logan, 729 N.E.2d at 137. The trial court recognized this and, therefore, entered the robbery conviction as a Level 3 felony on the basis that Martin was armed with a deadly weapon when he committed the robbery. The fundamental problem with this is that the State did not allege the use of a deadly weapon as an enhancement of the robbery offense, and the jury was never instructed on the use of a deadly weapon as an enhancement of the robbery offense. As a result, reduction of the robbery conviction to a Level 5 felony was the proper remedy.
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The State argues that Martin invited this error by expressly agreeing with the State’s suggestion at sentencing that the robbery conviction should be reduced to a Level 3 felony. We agree with Martin, however, that the State seems to conflate two distinct concepts – waiver and invited error. In Batchelor v. State, 119 N.E.3d 550, 556-59 (Ind. 2019), our Supreme Court discussed the distinctions between these two doctrines. The distinctions are important because “whereas waiver generally leaves open an appellant’s claim to fundamental-error review, invited error typically forecloses appellate review altogether.” Id. at 556.
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Our review of the record in this case reveals that defense counsel’s acquiescence, though affirmatively stated, was not part of a deliberate trial strategy and amounted only to mere neglect. Thus, Martin’s claim on appeal is not foreclosed by the doctrine of invited error.
Martin was sentenced for a crime – Level 3 Felony robbery – for which he had not been convicted. This amounted to fundamental error. See Kingery, 659 N.E.2d at 496 (“A person cannot be sentenced for a crime for which that person has not been convicted.”). Accordingly, we vacate Martin’s sentence for Level 3 felony robbery and remand for a new sentencing hearing on the Level 5 felony robbery conviction.
Judgment vacated in part and remanded for a new sentencing hearing on the Level 5 felony robbery conviction.
Brown, J. and Tavitas, J., concur.