Vaidik, J.
Carl Hill crashed his SUV into a car carrying two women. Both women died, and Hill was later convicted of two counts of reckless homicide. He now appeals, arguing that the two convictions constitute double jeopardy under the “very same act” rule, which provides that a defendant cannot be convicted and punished for a crime that consists of the very same act as another crime for which the defendant has been convicted and punished. Hill acknowledges that our Supreme Court significantly overhauled Indiana double-jeopardy law in two opinions issued in August: Wadle v. State and Powell v. State. However, he asserts that those decisions did not eliminate the “very same act” rule. We hold that they did and that, even if they had not, Hill’s convictions would not be double jeopardy. We also reject Hill’s challenge to his sentence but remand for a minor correction.
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Hill first argues that his two convictions for reckless homicide constitute double jeopardy because they arose from one collision. In August, our Supreme Court issued two opinions that significantly altered the approach to claims of double jeopardy that—like the one here—are based on multiple convictions in a single prosecution. See Wadle v. State, 151 N.E.3d 227 (Ind. 2020); Powell v. State, 151 N.E.3d 256 (Ind. 2020). The Court distinguished these claims of “substantive double jeopardy” from claims of “procedural double jeopardy”—where a defendant is charged with the same offense in successive prosecutions. Previously, claims of substantive double jeopardy could be made under constitutional tests established in Richardson v. State, 717 N.E.2d 32 (Ind. 1999)—the “statutory elements” test and the “actual evidence” test—or under a variety of statutory and common-law rules. In Wadle, however, the Court overruled the Richardson constitutional tests as they apply to claims of substantive double jeopardy. See Wadle, 151 N.E.3d at 244. 2 The Court then set forth two new tests that start with statutory interpretation but that also incorporate, where appropriate, the common-law continuous-crime doctrine. Id. at 247-50; Powell, 151 N.E.3d at 263-65.
The Court explained that claims of substantive double jeopardy “come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims.” Wadle, 151 N.E.3d at 247; see also Powell, 151 N.E.3d at 263. Wadle established the test for the latter scenario, Powell the former.
This case implicates the former scenario…In Powell, the Court held that the first step in these situations is to determine whether the statute “indicates a unit of prosecution.” 151 N.E.3d at 264. If the statute is “conduct-based” (i.e., if the focus of the statute is the defendant’s actions rather than the consequences of those actions), only one conviction is permissible, regardless of the number of victims. Id. at 265-66. If the statute is “result-based” (i.e., if the result is part of the definition of the crime), multiple convictions are permissible where there are multiple victims. Id. at 266. If, however, the statute is ambiguous, the court must continue to the part of the test that incorporates the common-law continuous-crime doctrine and determine “whether the defendant’s actions are ‘so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.’” Id. at 264 (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010), reh’g denied).
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The reckless-homicide statute, Indiana Code section 35- 42-1-5, provides that “[a] person who recklessly kills another human being commits reckless homicide, a Level 5 felony.” This is a result-based statute. It focuses on the killing of another human being without requiring any particular conduct by the defendant, other than some reckless act. As such, each death recklessly caused is a “unit of prosecution,” and multiple convictions are permissible where multiple people are killed by a single reckless act by the defendant.
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Moreover, even if Wadle had not done away with the “very same act” rule, we would not find double jeopardy. First, as noted above, it has been held that the reckless-homicide statute allows for multiple convictions where a single reckless act kills multiple victims. See Marshall, 563 N.E.2d at 1343; Kelly, 527 N.E.2d at 1155. And in any event, our Supreme Court has made clear that the five protections outlined in Justice Sullivan’s Richardson concurrence are not violated where, as here, the convictions at issue involve different victims. See Bald v. State, 766 N.E.2d 1170, 1172 n.4 (Ind. 2002); see also Bunch v. State, 937 N.E.2d 839, 847 (Ind. Ct. App. 2010) (relying on footnote four in Bald for the same proposition), trans. denied.
Hill cites Clem v. State, an 1873 opinion in which our Supreme Court stated, “Where, by the discharge of a fire-arm, or a stroke of the same instrument, an injury is inflicted upon two or more persons, or their death is produced, there is but one crime committed.” 42 Ind. 420, 429 (1873). In Powell, the Court expressly overruled Clem. See Powell, 151 N.E.3d at 266 n.12. But that was largely a formality, because “more recent precedent” had already rendered Clem “an outlier.” Id.; see also Atchley v. State, 730 N.E.2d 758, 765 (Ind. Ct. App. 2002) (noting “the extensive body of countervailing law that developed in the more than 100 years following the Clem decision” and that “the state of double jeopardy law as of 1999 would undoubtedly have permitted multiple convictions for murder where one act caused multiple deaths”), trans. denied.
Hill’s two convictions for reckless homicide do not constitute double jeopardy.
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However, we do remand this matter to the trial court with instructions to attach the four-year habitual-offender enhancement to the six-year sentence for the reckless homicide of Spears, for a total sentence of ten years on that count, as opposed to making the enhancement “consecutive” to the other sentences. See Ind. Code § 35-50-2-8(j) (“Habitual offender is a status that results in an enhanced sentence. It is not a separate crime and does not result in a consecutive sentence. The court shall attach the habitual offender enhancement to the felony conviction with the highest sentence imposed and specify which felony count is being enhanced.”).
Affirmed.
Bailey, J., and Weissmann, J., concur.