Ismael Ramirez-Colin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Pyle, Judge.

[1] Following a bench trial, the trial court convicted Ismael Ramirez-Colin

(“Ramirez-Colin”) of Level 3 felony attempted child molesting  ¹ and Level 4 felony child molesting ² and sentenced Ramirez-Colin to an aggregate term of eight (8) years.³ On appeal, Ramirez-Colin argues, and the State concedes, that these convictions for Level 3 felony attempted child molesting and Level 4 felony child molesting violate the Indiana Constitutional prohibition against double jeopardy and that the Level 4 felony child molesting conviction should be vacated.⁴

[2] We review questions of law, including double jeopardy claims, under a de novo standard of review. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024). Indiana's protection against substantive double jeopardy prohibits “multiple convictions for the same offense in a single proceeding.” Id. at 1066. The parties agree that, under the application of the three-part test for Indiana double jeopardy claims, Ramirez-Colin's convictions for Level 3 felony attempted child molesting and Level 4 felony child molesting violate the Indiana Constitutional prohibition against double jeopardy. See Wadle, 151 N.E.3d 227; A.W., 229 N.E.3d 1060. We agree. Furthermore, our review of the record reveals, that the charging information for Level 3 felony attempted child molesting and Level 4 felony child molesting and the evidence presented at trial relied upon the same single act of Ramirez-Colin pushing the victim's head toward his penis. Because Ramirez-Colin's Level 3 felony attempted child molesting and Level 4 felony child molesting convictions violate the Indiana Constitutional prohibition against double jeopardy, we reverse Ramirez-Colin's conviction for Level 4 felony child molesting and remand to the trial court with instructions to vacate his Level 4 felony child molesting conviction and sentence.

[3] Reversed and remanded.

FOOTNOTES

1.   Ind. Code §§ 35-42-4-3; 35-41-5-1.

2.   I.C. § 35-42-4-3.

3.   The trial court sentenced Ramirez-Colin to concurrent terms of eight (8) years on his Level 3 felony attempted child molesting conviction and five (5) years on his Level 4 felony child molesting. The trial court also convicted and sentenced Ramirez-Colin for Class B felony child molesting and Class A misdemeanor intimidation, but he does not challenge these convictions on appeal.

4.   The parties filed their appellate briefs after our Indiana Supreme Court had issued its opinion in A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024), which clarified the double jeopardy analysis set forth in Wadle v. State, 151 N.E.3d 227 (Ind. 2020).

Memorandum Decision by Judge Pyle

Judges May and Brown concur. May, J., and Brown, J., concur.