Rush, C.J.
Six years ago, we overhauled Indiana’s approach to substantive double jeopardy—the doctrine that provides state-law protections against multiple convictions for the same offense in a single trial. We announced two tests: the Wadle test, which applies when a defendant is convicted of different statutory offenses with common elements; and the Powell test, which applies when a defendant is convicted of a single statutory offense multiple times. Yet questions remain over the meaning of “single statutory offense” and the proper test when a defendant’s convictions stem from multiple violations of the same statute with differing enhancing circumstances or penalty levels.
Here, a defendant was convicted of both Level 3 and Level 4 felony criminal confinement based on his use of a deadly weapon and his infliction of moderate bodily injury on the victim. Because the criminal confinement statute treats these offenses as elevated forms of a common base offense—Level 6 felony criminal confinement—we conclude that the statute defines a single statutory offense. We therefore apply the Powell test to determine whether the defendant was punished twice for the same offense. And we hold that he was, finding the record only supports one continuous confinement. We therefore reverse and remand with instructions for the trial court to vacate the lesser conviction and enter an amended sentencing order.
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Before we can analyze whether Moyers’s two elevated criminal confinement convictions punished the same offense, we must decide whether they implicate a single statutory offense and the Powell test or multiple statutory offenses and the Wadle test. Both parties agreed in their briefs that Powell governed the analysis. But at oral argument, the State changed its position and contended Wadle should apply instead.
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To resolve this uncertainty, we look to how our Legislature—vested with the exclusive authority to define crimes—distinguishes between base offenses and their elevated counterparts. See I.C. § 1-1-2-2. And we ultimately conclude that a base offense and its elevated forms constitute a single statutory offense for purposes of determining whether to apply Wadle or Powell. Here, because Level 3 and Level 4 felony criminal confinement are elevated forms of a common base offense—Level 6 felony criminal confinement—they fall within the single statutory offense of criminal confinement. This conclusion does not, of course, necessarily mean that Moyers was punished twice for the same offense. Rather, it means that we apply Powell to determine how many discrete acts of criminal confinement he committed. And, finding the evidence establishes only a single continuous confinement, we hold that Moyers committed just one offense and thus reverse and remand.
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Category One includes statutes that define a base offense and elevated offenses as a single statutory offense, rendering Powell the proper test.
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In sum, because statutes within this first category, including the criminal confinement statute, establish elevated offenses that share a common base offense, such statutes each define a single statutory offense. For that reason, multiple convictions under these statutes are reviewable under Powell. We reiterate, however, that such convictions are not necessarily for the same offense, as they might not punish the same criminal conduct twice. We simply hold that the Powell test applies to determine whether a defendant’s course of conduct constituted more than one discrete instance of a single statutory offense.
In contrast to this first category, we next highlight statutes that define multiple distinct base offenses.
The second category contains statutes that define multiple base offenses and, thus, distinct statutory offenses. For example, Section 35-43-2-3 defines three separately named base offenses concerning computers, each with its own distinct elements: computer trespass; computer merchandise hoarding; and unlawful distribution of a hoarding program. I.C. § 35-43-2- 3(b)–(d). Another example is found in Section 35-44.1-2-3, which defines two base offenses that share the same name but have different elements. Subsection (c) sets forth elements for “false reporting, a Level 6 felony,” while Subsection (d) sets forth entirely different elements for “false reporting, a Class B misdemeanor.” I.C. § 35-44.1-2-3(c)–(d).
Because separate base offenses constitute distinct statutory offenses, multiple convictions for them are reviewable under Wadle.
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The third category contains statutes that may pose interpretive challenges because they create a base offense with alternative elements, such that distinct criminal acts can constitute the base offense. Some do so by using the disjunctive “or” construction. See, e.g., I.C. § 35-42-4-1(a) (defining four circumstances in which “sexual intercourse” or “other sexual conduct” constitute rape); I.C. § 35-43-1-1(a) (setting forth four alternative elements of arson). Others simply list the various circumstances that constitute the base offense. See, e.g., I.C. § 35-47-2-1.5(b) (defining ten categories of person whose carrying of a handgun constitutes an offense). These statutes, like those in Category One, may also create elevated forms of their disjunctive base offenses. See, e.g., I.C. § 35-42-4-1(b) (providing circumstances that enhance rape to a Level 1 felony).
Having explained why the Powell test applies to multiple elevated criminal confinement convictions, we now apply that test to determine whether both of Moyers’s challenged convictions may stand.
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Both substantive-double-jeopardy tests carry out legislative intent as expressed in statute: Wadle explains how to apply the included-offense statutes, 151 N.E.3d at 253, and Powell explains how to determine whether a “statute permits punishment for a single course of criminal conduct or for certain discrete acts,” 151 N.E.3d at 264. Here, we applied Powell to give effect to the statutory text that has placed Level 3 and Level 4 felony criminal confinement within a single statutory offense. Then, in identifying criminal confinement as a conduct-based offense, we referred to its unit of prosecution as defined by statute—“confin[ing] another person without the other person’s consent.” I.C. § 35-42-3-3(a). And in finding one confinement, we simply applied that definition to these facts. The dissent’s call to discard our caselaw interpreting and applying criminal statutes and instead “return to [the] text,” post, at 14, would mean discarding the very precedents that guide us in making sense of ambiguous statutes, see Powell, 151 N.E.3d at 266–68 (explaining why the unit of prosecution for attempted murder is ambiguous).
What’s more, the dissent advocates positions that conflict with the Legislature’s design. It states that “a multiplicity problem arises only when the included-offense statute does not apply,” post, at 8, even though the definition of a statutory offense will always limit how many offenses may be punished, Powell, 151 N.E.3d at 263–64. And it would limit Powell to scenarios where a single criminal act “results in a recurrence of the same consequence or injury,” post, at 8, contrary to the plain language of statutes—like the one defining criminal confinement—that elevate a single offense for reasons other than consequences or injury. See, e.g., I.C. § 35-42- 3-3(b)(1)(B), (3)(A).
In short, we read the criminal confinement statute as the Legislature wrote it, applied our precedents as we have articulated them, and concluded that the statute on these facts “forbids the State from . . . obtaining convictions on [both] charges.” Post, at 2. We have thus decided the exact “question” the dissent criticizes us for failing to “consider.” Id.
For the reasons provided above, we reverse and remand with instructions for the trial court to vacate Moyers’s Level 4 criminal confinement conviction. And we instruct the court to enter an amended sentencing order, which will in effect reduce Moyers’s 100-year sentence by four years to an aggregate sentence of ninety-six years. In its amended order, the trial court should also ensure it attaches the habitual offender and firearm enhancements to specific convictions.
Goff, J., concurs.
Molter, J., concurs with separate opinion.
Slaughter, J., dissents with separate opinion in which Massa, J., joins.
Molter, J., concurring.
In Richardson v. State, our Court announced a new framework for analyzing substantive double jeopardy challenges. 717 N.E.2d 32 (Ind. 1999). Reflecting the complexity of the questions, our five‐member court issued four opinions. And the opinion of the Court acknowledged that “[t]he analysis and application of double jeopardy provisions have proven to be a significant judicial challenge,” as even provisions “which appear straightforward and simple[ ] are often extremely difficult to apply and the underlying jurisprudence enormously challenging and complex.” Id. at 37.
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That is, if another course correction is due, we should wait for a party to propose it, and then we should test any new framework through our standard adversarial briefing and oral argument process. But here, no party asked us to revisit Wadle or Powell, and neither the parties nor the Court of Appeals have advocated that we adopt the framework my dissenting colleagues propose. So rather than getting over my skis, I join the Court’s opinion, which faithfully applies our precedents.
Slaughter, J., dissenting.
Six years ago, we “overhauled” our substantive-double-jeopardy framework in Wadle and Powell to provide state-law protections for criminal defendants who face what the Court describes as “multiple convictions for the same offense in a single trial.” Ante, at 2 (Rush, C.J.); see Wadle v. State, 151 N.E.3d 227 (Ind. 2020); Powell v. State, 151 N.E.3d 256 (Ind. 2020). Today, the Court holds that Marvin Moyers’s dual convictions for Level 3 and Level 4 felony criminal confinement must be analyzed under Powell, which the Court says applies “when a defendant is convicted of a single statutory offense multiple times.” Ante, at 2. Then, applying Powell, the Court concludes that Moyers’s Level 4 conviction must be vacated and his aggregate sentence reduced from 100 years to ninety-six years.
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But the growing chorus of appellate case law persuades me that the Wadle/Powell tests are not merely unhelpful but unworkable. Though I signed on six years ago, I now see these precedents as worthy (though ultimately failed) experiments to bring greater clarity and principle to this important area of law. I do not reach these conclusions lightly. My view has evolved over several years as panel after panel from our court of appeals has invited—no, implored—us to clarify our rulings, hoping we will explain what these precedents mean, when they apply, how they apply. Our appellate court hears hundreds of these cases every year; our trial courts, even more. There is no reason to expect the volume of these cases or the importance of these issues to recede. I have come to share the frustration espoused by recurring appellate panels that view this area of law as needlessly complex. As I see it, we do no one (ourselves included) any good by prolonging the confusion and deferring the needed clarity. It is time to ground our substantive-double-jeopardy jurisprudence in statutes and not our Court-conceived rules.
For these reasons, I respectfully dissent.
Massa, J., joins.