ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN (JACK) F. CRAWFORD STEVE CARTER
Crawford & DeVane Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
REGINALD J. THOMAS, )
vs. ) No. 34A04-0106-CR-230
STATE OF INDIANA, )
APPEAL FROM THE HOWARD SUPERIOR COURT, DIVISION II
The Honorable Stephen M. Jessup, Judge
Cause No. 34D02-9901-CF-9
March 13, 2002
OPINION - FOR PUBLICATION
Reginald Thomas (“Thomas”) was charged and pled guilty to conspiracy
to deliver cocaine in Cass Superior Court. He was also charged with
dealing in cocaine, as a Class B felony, in Howard Superior Court, and
that same, alleged offense was also one of the overt acts charged in the
conspiracy in Cass Superior Court. He filed a motion to dismiss the charge
in Howard Superior Court, which was denied. He has filed this
interlocutory appeal raising one issue: whether the trial court erred when
it denied his motion to dismiss under the Indiana Double Jeopardy Clause,
which protects against a second prosecution for the same offense.
Facts and Procedural History
On January 14, 1999, Thomas was charged with dealing in cocaine in
Howard Superior Court. The charging information reads as follows:
[O]n or about the 19th day of November, 1998, at the County of Howard
and the state of Indiana, REGINALD J. THOMAS, did then and there
unlawfully, knowingly, or intentionally deliver cocaine, pure or
adulterated in an aggregate weight of less than three (3) grams to
Confidential and Reliable Informant 5662, at or near the Bob Evans
Restaurant, located at 1850 U.S. 31 By Pass South, Kokomo, Howard
Appellant’s App. p. 7 (emphases added).
Also in January 1999, Thomas was charged with conspiracy to deliver
cocaine, as a Class A felony, in Cass Superior Court. On March 2, 2000,
an amended information was filed in Cass Superior Court and provided:
[O]n or about November, 1998 - February, 1999, Reginald J. Thomas
conspired with Confidential Informant 4981 to deliver cocaine to Cass
County, State of Indiana, to-wit: from Cass County, Confidential
Informant 4981 contacted Reginald J. Thomas in Indianapolis to arrange
for Reginald J. Thomas to provide cocaine to Confidential Informant
4981, and thereafter (1) on November 19, 1998 both Confidential
Informant 4981 and Reginald J. Thomas drove to Kokomo, Indiana to
effect the transfer of cocaine from Reginald J. Thomas to Confidential
Informant 4981; (2) on December 1, 1998 both Confidential Informant
4981 and Reginald J. Thomas drove to Westfield, Indiana to effect the
transfer of more than three (3) grams of cocaine from Reginald J.
Thomas to Confidential Informant 4981; and (3) on February 12, 1999,
both Confidential Informant 4981 and Reginald J. Thomas drove to
Westfield, Indiana to effect the transfer of more than three (3) grams
of cocaine from Reginald J. Thomas to Confidential Informant 4981 and
after each transfer of cocaine Confidential Informant 4981 returned to
Cass County, Indiana.
Appellant’s App. p. 22 (emphases added). Confidential Informant 5662 noted
in the Howard County charging information is the same person as
Confidential Informant 4981 in the Cass County charging information.
Appellant’s App. p. 57.
On March 2, 2000, Thomas pled guilty to the charge of conspiracy to
deliver cocaine, as a Class A felony, in Cass Superior Court. At the
guilty plea hearing he admitted to the charges set forth in the charging
information and specifically admitted that he did in fact transfer cocaine
to the Confidential Informant in Howard County on November 19, 1998, in
furtherance of the conspiracy. Appellant’s App. pp. 36, 38. He was
sentenced to serve twenty years with sixteen years suspended, four years
executed, and placed on probation for sixteen years.
On November 13, 2000, Thomas filed a motion to dismiss the pending
charge of dealing in cocaine in Howard County. In his motion, Thomas
argued that prosecution of the Howard County charge was barred by Article
I, Section 14 of the Indiana Constitution because Thomas was previously
prosecuted, convicted, and sentenced in Cass Superior Court for the same
acts specified in the charging information in Howard County. The motion
was denied and Thomas then filed a request for certification of the trial
court’s order denying his motion to dismiss for interlocutory appeal. The
trial court granted his request, and on June 11, 2001, our court accepted
jurisdiction of this interlocutory appeal.
Discussion and Decision
Thomas argues that the trial court erred when it denied his motion to
dismiss because he has been convicted and punished in Cass County for
conspiracy to deliver cocaine upon the same evidence used to charge him
with dealing in cocaine in Howard County; therefore, prosecution of Thomas
in Howard County for dealing in cocaine is barred by the Indiana Double
Jeopardy Clause. Because the issue before us is a question of law, we
review the matter de novo. Wilcox v. State, 748 N.E.2d 906, 909 (Ind. Ct.
App. 2001), trans. denied.
Article I, Section 14 of the Indiana Constitution provides “[n]o
person shall be put in jeopardy twice for the same offense.” The Double
Jeopardy Clause protects against a second prosecution for the same offense
after conviction. Berry v. State, 725 N.E.2d 939, 944 (Ind. Ct. App.
Prohibitions against double jeopardy protect the integrity of jury
acquittals and the finality interest of defendants, shield against
excessive and oppressive prosecutions, and ensure that defendants will
not undergo the anxiety and expense of repeated prosecution and the
increased probability of conviction upon re-prosecution.
Richardson v. State, 717 N.E.2d 32, 37 (Ind. 1999) (citing Robert Matz,
Note, Dual Sovereignty and the Double Jeopardy Clause: If at First You
Don’t Convict, Try, Try Again, 24 Fordham Urb. L. J. 353, 356-57 (1997)
(citations omitted)). In Richardson, our supreme court concluded that two
convictions are the same offense in violation of the Indiana Double
Jeopardy Clause if “with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential
elements of one challenged offense also establish the essential elements of
another challenged offense.” Id. at 49. These tests are referred to as
the “statutory elements test” and the “actual evidence test.” Id. at 50,
Under the statutory elements test, “[e]ach offense must contain at
least one element which is separate and distinct from the other offense so
that the same evidence is not necessary to convict for both offenses.” Id.
at 52. Under the actual evidence test, to show that the two challenged
offenses constitute the same offense “a defendant must demonstrate a
reasonable possibility that the evidentiary facts used by the fact-finder
to establish the essential elements of one offense may also have been used
to establish the essential elements of a second challenged offense.” Id.
In cases decided after Richardson involving claims of a double
jeopardy violation where the defendant was convicted of both conspiracy and
the underlying crime, our courts appear to focus their inquiry under the
“actual evidence” test on what evidence the jury was instructed to consider
when determining the defendant’s guilt on the charge of conspiracy. See
e.g., Long v. State, 743 N.E.2d 253 (Ind. 2001); Lundberg v. State, 728
N.E.2d 852 (Ind. 2000); Chavez v. State, 722 N.E.2d 885 (Ind. Ct. App.
2000). For example, in Lundberg, the defendant was convicted of murder and
conspiracy to commit murder. Id. at 852. Although evidence was presented
of several overt acts, the jury was instructed that it could consider a
single overt act – that the defendant shot the victim – in order to find
the defendant guilty of conspiracy. Id. at 855. Our supreme court
concluded that “[a]lthough the State presented evidence of other overt acts
that might support a conviction of conspiracy, it is reasonably possible
that the jury used the same evidence to establish the essential elements of
both murder and conspiracy to commit murder[;]” therefore, the convictions
for murder and conspiracy to commit murder violated the Indiana Double
Jeopardy Clause. Id.
However, we cannot perform the Lundberg analysis here because Thomas
was not tried for, but rather pled guilty to conspiracy; therefore, the
only “actual evidence” is the factual basis established at the Cass County
guilty plea hearing. Thomas argues that the tests set forth in
Richardson do not address the situation in the instant case, contending
that “Richardson v. State, leaves us with the somewhat open question of
what is the appropriate double jeopardy test under the Indiana Constitution
to determine if a subsequent prosecution is barred after a guilty plea to
either the conspiracy charge or the underlying offense.” Br. of Appellant
In his opinion concurring in the Richardson result, Justice Boehm
argued that Article I, Section 14 should be invoked only as a bar to
subsequent prosecutions, contending that “[m]ixing the multiple punishment
and subsequent prosecution strands, as has occurred in federal double
jeopardy law, results in an unsatisfactory compromise that breeds confusion
and impairs the important values underlying the Double Jeopardy Clause.”
717 N.E.2d at 57-58 (Boehm, J., concurring opinion). This is readily
apparent in this case where the “actual evidence” test is nearly impossible
to apply because one conviction is the result of a guilty plea and in the
second prosecution, Thomas filed a motion to dismiss. No trial has been
held and only the Cass County factual basis evidence has been presented.
In his opinion in Richardson, Justice Boehm argued that in cases involving
subsequent prosecutions, like the instant case, Indiana should follow the
“same conduct” analysis applied in Grady v. Corbin, 495 U.S. 508 (1990).
Thomas urges us to apply that test in this case.
In Grady, the defendant drove his automobile across the median and
struck two oncoming vehicles, and one of the individuals injured in the
accident died. Id. at 511. As a result of the collision, the defendant
received two traffic tickets and was charged with driving while
intoxicated, a misdemeanor, and failing to keep to the right of the median.
Id. at 512. He pled guilty to those offenses, was ordered pay a $350
fine, and his license was revoked for six months. Id. at 513. Two months
later, the defendant was indicted and charged with reckless manslaughter,
second-degree vehicular manslaughter, criminally negligent homicide, third-
degree reckless assault, and driving while intoxicated. Id. at 513-14.
The defendant moved to dismiss the indictment on statutory and
constitutional double jeopardy grounds. The trial court denied his motion
and he appealed. Id. at 514. The New York Court of Appeals held that the
Double Jeopardy Clause barred subsequent prosecution of the defendant under
the charges listed in the indictment. Id.
Affirming that decision, the United States Supreme Court determined
that “a subsequent prosecution must do more than merely survive the
Blockberger test” and held that
the Double Jeopardy Clause bars any subsequent prosecution in which
the government, to establish an essential element of an offense
charged in that prosecution, will prove conduct that constitutes an
offense for which the defendant has already been prosecuted. This is
not an “actual evidence” or “same evidence” test. The critical
inquiry is what conduct the State will prove, not the evidence the
State will use to prove that conduct.
Id. (emphasis added). The Court concluded that because the “State has
admitted that it will prove the entirety of the conduct for which [the
defendant] was convicted – driving while intoxicated and failing to keep
right of the median – to establish essential elements of the homicide and
assault offenses[,]” the successive prosecution was barred by the Double
Jeopardy Clause. Id. at 523.
In Richardson, Justice Boehm contended that an application of the
“same conduct” test to subsequent prosecutions is supported by some Indiana
authority. Richardson, 717 N.E.2d at 69 (Boehm, J., concurring opinion)
(citing Durke v. State, 204 Ind. 370, 183 N.E. 97 (1932); Clem v. State, 42
Ind. 420 (1873); Wininger v. State, 13 Ind. 540 (1859); Thompson v. State,
259 Ind. App. 587, 290 N.E.2d 724 (1972), overruled by Elmore v. State, 269
Ind. 532, 387 N.E.2d 893 (1978)). In Durke, our supreme court discussed
the “identity of offense” test and found that it was used most often by
Indiana courts in resolving claims of double jeopardy violations. The test
was as follows: “[w]ould the same evidence be necessary to secure a
conviction in the pending, as in the former prosecution.” Durke, 204 Ind.
at 377-78, 183 N.E. at 100. In Thompson, the court held that “before the
court may enter judgment and impose sentence upon multiple counts, the
facts giving rise to the various offenses must be independently
supportable, separate, and distinct.” 259 Ind. App. at 592, 290 N.E.2d at
We agree with Justice Boehm’s argument that the test to be applied in
subsequent prosecutions must necessarily be distinct from the “actual
evidence” test adopted in Richardson to multiple punishments, because in
typical subsequent prosecution cases, like the one before us, it is likely
that in the second prosecution the defendant will file a motion to dismiss
on double jeopardy grounds, and therefore, there will be no “actual
evidence” to compare with the first conviction.
In this case, Thomas pled guilty to and was convicted of conspiracy to
deliver cocaine in Cass County. One of the overt acts alleged in
furtherance of the conspiracy was that “on November 19, 1998 both
Confidential Informant 4981 and Reginald J. Thomas drove to Kokomo, Indiana
to effect the transfer of cocaine from Reginald J. Thomas to Confidential
Informant 4981.” Appellant’s App. p. 22. At the guilty plea hearing,
Thomas admitted that he agreed to provide cocaine to the confidential
informant for the purposes of distributing it in Cass County and that he
did, in fact, transfer cocaine to the confidential informant on November
19, 1998, in Kokomo, Indiana, in furtherance of the conspiracy.
Appellant’s App. p. 38. This is the same act that Thomas is charged with
in Howard County.
The State argues that the conspiracy charges only involve Thomas’s
conduct of agreeing with the confidential informant to deliver cocaine, but
not actually delivering the cocaine, and that the charging information in
the conspiracy case does not specifically allege that Thomas delivered
cocaine to the confidential informant. Br. of Appellee at 8-9. However,
the charging information clearly alleges that Thomas drove to Kokomo to
“effect the transfer of cocaine” from Thomas to the confidential informant.
Furthermore, the Cass County charging information states that “after each
transfer of cocaine Confidential Informant 4981 returned to Cass County,
Indiana.” Appellant’s App. p. 22 (emphasis added). Therefore, although
the Cass County charging information does not expressly use the term
“deliver,” delivery of cocaine from Thomas to the Confidential Informant is
at the core of the Cass County charging information.
Thomas has already been convicted and punished for his conduct in
delivering cocaine to the confidential informant in Howard County; he pled
guilty and was sentenced in Cass County for conspiracy to deliver cocaine
based on the overt act of arranging to provide, driving to and effecting
the transfer of cocaine at the Bob Evans Restaurant at 1850 U.S. 31 Bypass
South in Kokomo. Therefore, further prosecution of this same conduct of
dealing in cocaine in Howard County violates the Indiana Double Jeopardy
Clause, and the trial court erred when it denied Thomas’s motion to
BROOK, C. J., and RILEY, J., concur.
 Ind. Code § 35-48-4-1(a) (Supp. 2001).
 Ind. Code § 35-48-4-1(a) (1998); Ind. Code § 35-41-5-2 (1998).
 Thomas concedes that under this test, conspiracy to deliver cocaine and
dealing in cocaine are not the same offense for the purposes of double
jeopardy, as each requires proof of facts which the other does not.
Conspiracy to deliver cocaine requires an agreement by two or more people
to deal in cocaine and an overt act in furtherance of the agreement, but
does not require that any cocaine ever be possessed with the intent to
deliver. See Ind. Code § 35-48-4-1(a) (1998) and Ind. Code § 35-41-5-2
(1998). However, a conviction for dealing in cocaine requires possession
with the intent to deliver. Id.
 We also note that a trial court may not accept a plea of guilty unless
it determines that a sufficient factual basis exists to support the plea.
Ind. Code § 35-35-1-3(b) (1998). A factual basis exists when there is
evidence about the elements of the crime from which a trial court could
reasonably conclude that the defendant is guilty, and relatively minimal
evidence can be adequate. Rhoades v. State, 675 N.E.2d 698, 700 (Ind.
1996). However, the factual basis of a guilty plea need not be established
beyond a reasonable doubt. Butler v. State, 658 N.E.2d 72, 77 (Ind. 1995).
 In his opinion, Justice Boehm noted that Grady was overruled three
years later by U.S. v. Dixon, 509 U.S 688, 712 (1993), in favor of a return
to the “same elements” test of Blockberger v. U.S., 284 U.S. 299 (1932).
He stated, “[a]lthough Grady is no longer the law under the federal Double
Jeopardy Clause, I generally agree with the view of Justices Souter,
Stevens, White, and Blackmun, who defended Grady in Dixon.” Richardson,
717 N.E.2d at 70 (Boehm, J., concurring opinion).
 The State argues that “additional Indiana Constitutional protections
against double jeopardy, which expand those protections contained in the
federal constitution, should be limited to multiple punishment cases.” Br.
of Appellee at 4 (emphasis added). Thomas contends that no possible
rationale exists for expanding a defendant’s rights under Article I,
Section 14 in cases of multiple prosecutions as our supreme court did in
Richardson but at the same time restricting those rights to the federal
Blockberger analysis in cases of subsequent prosecutions. Reply Br. of
Appellant at 2. We agree. In Richardson, to determine the proper
interpretation of the Indiana Double Jeopardy Clause, Justice Dickson
analyzed cases involving “subsequent prosecutions because double jeopardy
claims in multiple punishments cases did not emerge until after 1930, and
because this Court has not distinguished between double jeopardy
protections in multiple punishment cases and those in subsequent
prosecution cases.” Richardson, 717 N.E.2d at 43.
 As noted above, the Howard County charging information alleges “on or
about the 19th day of November, 1998, at the County of Howard and the state
of Indiana, REGINALD J. THOMAS, did then and there unlawfully, knowingly,
or intentionally deliver cocaine, pure or adulterated in an aggregate
weight of less than three (3) grams to Confidential and Reliable Informant
5662, at or near the Bob Evans Restaurant, located at 1850 U.S. 31 By Pass
South, Kokomo, Howard County, Indiana.” Appellant’s App. p. 7.