A man who pleaded guilty to a pair of drunken-driving charges was improperly convicted on both counts, the Indiana Court of Appeals ruled Wednesday, vacating one of the convictions.
Jesse Wharton pleaded guilty to Level 6 felony operating a vehicle while intoxicated with a prior conviction and Level 6 felony operating a vehicle with a blood alcohol content of 0.08 percent or more with a prior conviction. He was sentenced to two-and-a-half years in prison on each count, to be served concurrently.
“Wharton was subjected to double jeopardy by the imposition of two sentences because the same act was the basis for both offenses. We must therefore vacate his conviction of operating a vehicle with an (alcohol concentration equivalent) of .08 or more with a prior conviction," Judge Melissa May wrote for the panel.
"The State’s only argument is that Wharton waived his right to challenge his convictions because he entered into a 'plea agreement.' ... However, in this case Wharton did not have a 'plea agreement.' Wharton pleaded guilty in open court without an agreement that might have brought him some benefit in return. In that circumstance, there is no waiver," May wrote for the panel in Jesse Wharton v. State of Indiana, 49A02-1502-CR-85. “… The trial court should have entered only one of the convictions.”
The case was remanded for the trial court to amend its order accordingly.