Foley, J.
Steven Ray Hessler (“Hessler”) was convicted after a jury trial of two counts of rape, each as a Class A felony, nine counts of criminal deviate conduct, each as a Class A felony, seven counts of burglary, each as a Class A felony, and one count of robbery,4 as a Class A felony for crimes committed between August 14, 1982, and August 17, 1985. The trial court sentenced Hessler to an aggregate sentence of 650 years executed. On appeal, Hessler raises three issues, which we restate as: I. Whether the cumulative effect of multiple instances of alleged prosecutorial misconduct during the State’s cross-examination of Hessler and its closing argument denied Hessler a fair trial; II. Whether four of Hessler’s Class A felony burglary convictions violated Indiana’s common law prohibition on double jeopardy; and III. Whether Hessler’s sentence is inappropriate in light of the nature of the offense and the character of the offender.
We affirm.
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Hessler argues that the State engaged in multiple acts of prosecutorial misconduct during the trial and that the cumulative effect of these multiple acts placed him in a position of grave peril to which he should not have been subjected. Hessler claims that prosecutorial misconduct occurred both during Hessler’s testimony and during the State’s closing argument. Hessler objected to some of the alleged instances of prosecutorial misconduct but failed to object to all of the challenged acts. Specifically, Hessler asserts that the State engaged in misconduct by: (1) demeaning and speaking sarcastically to defense counsel; (2) speaking directly to Hessler and being argumentative and sarcastic to him; (3) accusing Hessler of making up his testimony after hearing the witnesses testify; (4) using a method of cross-examination where the State repeated the victim testimony and improperly placed the testimony in front of the jury for a second time; (5) improperly shifting the burden of proof to Hessler, and (6) misrepresenting the evidence during closing argument.
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Therefore, looking at the alleged instances of misconduct that were not preserved as prosecutorial misconduct and that occurred in the presence of the jury in light of the evidence presented at trial, we do not conclude that the alleged misconduct had an undeniable and substantial effect on the jury’s decision such that a fair trial was not possible. See Ward, 203 N.E.3d at 533. Thus, the alleged misconduct did not rise to the level of fundamental error.
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Hessler next argues that four of his burglary convictions violate the Indiana Constitution’s prohibition against double jeopardy because they were enhanced by the same bodily injury that established other offenses for which Hessler was convicted. Four of Hessler’s burglary convictions, those pertaining to P.B., T.M., L.H., and B.C., were enhanced to Class A felonies pursuant to the version of Indiana Code Section 35-43-2-1 at the time the offenses were committed, due to the resulting bodily injury suffered by the victims. We review double jeopardy violation claims de novo. See Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020); Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020).
Hessler is correct that, at the time he committed the crimes for which he was convicted, Indiana’s double jeopardy clause prohibited the enhancement of an offense based on the same injury that established another offense for which the defendant had already been punished. Specifically, it prohibited multiple convictions if there is “‘a reasonable possibility that the evidentiary facts used by the factfinder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.’” Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002) (quoting Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999)). Based on this, Indiana recognized the common law rule that “where one conviction ‘is elevated to a class A felony based on the same bodily injury that forms the basis of [another] conviction, the two cannot stand.’” Strong v. State, 870 N.E.2d 442, 443 (Ind. 2007) (quoting Pierce, 761 N.E.2d at 830) (citing Richardson v. State, 717 N.E.2d at 55 (Sullivan, J., concurring), 57 (Boehm, J., concurring in result))).
However, the Indiana Supreme Court significantly altered the test for double jeopardy in Wadle and Powell. In those cases, the Supreme Court set forth two new frameworks for analyzing whether a defendant’s convictions violate principles of substantive double jeopardy. Wadle, 151 N.E.3d at 247–50; Powell, 151 N.E.3d at 264–65. The cases explicitly overruled Richardson and held that our substantive double jeopardy jurisprudence would no longer be governed by the Indiana Constitution but would, instead, be driven primarily by “statutory rules of double jeopardy.” Wadle, 151 N.E.3d at 235. Specifically, Wadle set forth a test for “when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims.” Id. at 247. Hessler’s convictions implicate two statutes, and, thus, the Wadle test is implicated.
Several panels of this court have recognized that Wadle and Powell overruled the constitutional substantive double jeopardy test set forth in Richardson and the statutory and common law to create “one unified framework” for substantive double jeopardy claims. Jones v. State, 159 N.E.3d 55, 61 (Ind. Ct. App. 2020); see also Gaunt v. State, 209 N.E.3d 463, 466–67 (Ind. Ct. App. 2023); Morales v. State, 165 N.E.3d 1002, 1007 (Ind. Ct. App. 2021), trans. denied; Woodcock v. State, 163 N.E.3d 863, 871 (Ind. Ct. App. 2021), trans. denied; Hill v. State, 157 N.E.3d 1225, 1229 (Ind. Ct. App. 2020); Diaz v. State, 158 N.E.3d 363, 368 (Ind. Ct. App. 2020). We agree with these opinions and conclude that Wadle replaced the common law double jeopardy rules, including the common law rule upon which Hessler relies.
Hessler asserts that Wadle does not apply to his convictions because the Supreme Court’s decision in Wadle was prospective and not retroactive. However, this court recently held that Wadle does apply retroactively. Sorgdrager v. State, 208 N.E.3d 646, 652 (Ind. Ct. App. 2023), trans. pending on other grounds. Because the new substantive double jeopardy framework established in Wadle constituted a new rule for the conduct of criminal prosecutions, and such new rules are to be applied retroactively, Sorgdrager held that the Wadle analysis applies to cases that were not yet final at the time our Supreme Court adopted Wadle. Id. Here, Hessler’s case was far from final when Wadle was adopted, and therefore Wadle controls.
Because we conclude that Wadle replaced the common-law double jeopardy rules, and that it applies retroactively, we cannot consider Hessler’s reliance on the common law rule that an offense cannot be enhanced based on the same injury that established another offense for which the defendant had already been punished. Further, because Hessler raises no argument that his convictions constitute double jeopardy under Wadle, we cannot say that his double jeopardy rights were violated.
Hessler next argues that his aggregate 650-year sentence is inappropriate.
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In crafting the sentence in the manner that it did, the trial court specifically acknowledged each victim and ensured the sentence reflected the harm inflicted to each individual victim. Hessler has not shown that his sentence is inappropriate in light of the nature of the offenses.
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Consequently, we do not believe that Hessler has met his burden to show “substantial virtuous traits or persistent examples of good character” such that his requested reduction of his sentence is warranted based on his character. Stephenson, 29 N.E.3d at 122. We, therefore, do not find that his sentence is inappropriate in light of his character.
In conclusion, we find neither of the preserved instances of alleged misconduct to be prosecutorial misconduct nor do we find the cumulative effect of the instances of alleged misconduct to be fundamental error. We also find that Hessler’s argument that four of his burglary convictions violate the common law elevation rule and constituted double jeopardy is unavailing because Wadle overruled the common law double jeopardy rule and applies retroactively. Further, we do not find that Hessler’s sentence is inappropriate in light of the nature of the offense and his character.
Affirmed.
Tavitas, J., concurs.
Vaidik, J., concurs in part, dissents in part.
Vaidik, J., concurring in part and dissenting in part.
I agree with the majority that the alleged prosecutorial misconduct does not require reversal and that Hessler’s sentence is not inappropriate. However, I respectfully dissent from the majority’s double-jeopardy holding.
Four of Hessler’s burglaries were enhanced to Class A felonies because, during those burglaries, he committed sex crimes for which he was separately convicted. Hessler argues, and the State concedes, that under Indiana double jeopardy law in effect at the time of the crimes such enhancements were impermissible. Specifically, a conviction could not be enhanced based on the same behavior or harm that formed the basis for another conviction. See, e.g., Bevill v. State, 472 N.E.2d 1247, 1254 (Ind. 1985) (citing Bean v. State, 371 N.E.2d 713, 716 (Ind. 1978)). But the State didn’t charge Hessler until more than thirty years after his crimes, on August 18, 2020. That same day, our Supreme Court decided Wadle v. State, 151 N.E.3d 227 (Ind. 2020), in which it abolished all existing rules for claims of substantive double jeopardy, including the enhancement rule Hessler relies on, and established a new framework for analyzing such claims.
The State contends that Wadle controls and that, under Wadle, the enhancements are permissible. Hessler does not dispute the latter point but argues Wadle should not be applied retroactively. I noted this “potentially sticky issue” in an opinion issued just six weeks after Wadle, in an appeal where the briefs predated Wadle. See Diaz v. State, 158 N.E.3d 363, 368 (Ind. Ct. App. 2020). Now, for the first time, I am involved in a case where the defendant has raised the retroactivity issue. Having considered the question, I am firmly convinced that Hessler is entitled to the benefit of the double-jeopardy law that was in effect at the time of his crimes.
In holding that Wadle applies, the majority relies on a recent decision by another panel of this Court, Sorgdrager v. State, 208 N.E.3d 646 (Ind. Ct. App. 2023), trans. pending. The Sorgdrager panel held that Wadle established “a new constitutional rule of criminal procedure” and therefore applies retroactively to cases that were pending on direct review or not yet final when Wadle was decided. Id. at 651-52 (citing Powell v. State, 574 N.E.2d 331, 333 (Ind. Ct. App. 1991), trans. denied). The principle that new procedural rules apply retroactively was first established by the U.S. Supreme Court in Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
I believe that, in this case, the Griffith retroactivity rule must give way to a different constitutional principle. As our Supreme Court has explained, retroactive application of a judicial decision can violate the ex post facto protections inherent in the due-process clauses of the Fifth and Fourteenth Amendments if the defendant is harmed by the change in law…Armstrong v. State, 848 N.E.2d 1088, 1092-93 (Ind. 2006) (cleaned up and emphasis added).
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Armstrong did not address what happens when Griffith collides with this due-process principle, but at least one state supreme court has held that if the due-process principle would be violated by retroactive application of a judicial decision, Griffith retroactivity is impermissible. State v. Kurzawa, 509 N.W.2d 712, 716 (Wis. 1994).
Armstrong involved a judicial decision interpreting a criminal statute, but the U.S. Supreme Court has made clear that the same ex post facto/due-process analysis applies where, as here, a judicial decision alters a common-law rule of criminal law. Rogers v. Tennessee, 532 U.S. 451 (2001). Again, the principle is based on the “core due process concepts of notice, foreseeability, and, in particular, the right to fair warning.” Id. at 459. A “judicial alteration of a common law doctrine of criminal law” violates the principle of fair warning and must not be given retroactive effect “where it is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’” Id. at 462 (quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)).
The Rogers standard is easily met here. Again, the State does not dispute that before Hessler’s crimes Indiana Supreme Court precedent dictated that a conviction could not be enhanced based on the same behavior or harm that formed the basis for another conviction. In Wadle, the Court reversed course and abandoned that rule (along with all other existing rules for claims of substantive double jeopardy). That development—the Court overruling its prior precedent—was “unexpected and indefensible by reference to the law which had been expressed” before Hessler’s crimes. Rogers, 532 U.S. at 462. Indeed, the enhancement rule stayed on the books for more than thirty years after Hessler’s crimes. The Wadle Court acknowledged that its decision amounted to a seismic shift when it said it was “charting a clear path going forward.” 151 N.E.3d at 244 (emphases added); see also id. at 253 (referring to “our new analytical framework”). Therefore, Wadle cannot be applied retroactively to Hessler’s crimes. See Ex Parte Scales, 853 S.W.2d 586, 588 (Tex. Crim. App. 1993) (holding that retroactive application of judicial decision that abandoned double-jeopardy rule would violate federal due-process clause).
Bottom line, I believe Hessler has a due-process right to the benefit of the enhancement rule that existed at the time he committed his crimes, notwithstanding the fact that our Supreme Court did away with that rule decades later. The four Class A felony burglary convictions he challenges should be reduced to Class B felonies, and he should be re-sentenced accordingly.