Because a man’s firearm enhancement is based on the same behavior used to convict and sentence him for carrying a handgun without a permit, the Indiana Supreme Court vacated the conviction and five-year enhancement.
Christopher Cross was charged with several felony drug and weapon offenses and two misdemeanor offenses based on a drug transaction at a Shelbyville hotel in 2006. He later sought post-conviction relief and was resentenced in 2013. He received an aggregate 38-year sentence, which included a one-year sentence for the misdemeanor offense of carrying a handgun without a permit, a six-year sentence for carrying a handgun without a permit after a prior felony conviction, and a five-year sentence for a firearm enhancement.
Cross claimed that the post-conviction court violated Indiana double jeopardy principles by entering convictions and imposing a sentence for both carrying a handgun without a permit and an enhancement based on the same handgun. He argued the firearm enhancement and carrying a handgun conviction were based on the same behavior and cannot stand.
The state claimed that while the charging information for the firearm enhancement count alleged Cross possessed the gun in violation of the law when he committed the offense, the prosecutor consistently argued that his use of the weapon during the crime was what warranted enhancement. But the justices pointed out the state actually argued the use justified an overall sentence of 75 years, not specifically the firearm enhancement.
Also, at the time Cross committed the crime, the statute made clear a sentence may be enhanced based on an accused person’s use or possession of a firearm.
“… it appears to the Court that on its face, the charging information for the handgun enhancement count seeks a conviction for ‘the very same behavior or harm’ alleged in the controlled substance count,” Justice Robert Rucker wrote. And since the evidence presented at trial did not demonstrate separate and distinct acts of possession upon which each count is based, the conviction of carrying a handgun and the five-year firearm enhancement must be vacated.
The justices remanded Christopher Cross v. State of Indiana, 73S01-1401-CR-29, for further proceedings.