Phillip J. Kessie, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Phillip Kessie was convicted of two counts of Level 6 felony theft after he stole a pickup truck that belonged to Ronald Pence. As part of his sentence, Kessie was ordered to pay restitution to Farm Bureau and Pence. Kessie contends that his convictions for two counts of theft violate the prohibitions against double jeopardy and that the trial court erred in ordering him to pay restitution without first inquiring into his ability to pay. The State concedes that Kessie's convictions violate the prohibitions against double jeopardy and contends that the matter should be remanded for resentencing. Concluding that Kessie's two convictions for Level 6 felony theft violate the prohibitions against double jeopardy, we affirm in part, reverse in part, and remand to the trial court with instructions to vacate one of the theft convictions and for resentencing.

Facts and Procedural History

[2] At all times relevant to this appeal, Pence owned a Chevrolet pickup truck (“the truck”) and kept a 100-gallon diesel fuel transfer tank in the bed of the truck. One morning in either late April or early May of 2023, the truck was stolen from Pence's property. Pence and other witnesses subsequently observed Kessie driving the truck. The truck was recovered on May 11, 2023. The 100-gallon tank and other items that had been in the truck, however, were never recovered.

[3] On November 8, 2023, the State charged Kessie with two counts of Level 6 felony theft. The first count related to the theft of the truck. The second related to the theft of certain items that had been in the truck, “to wit, [a] 100 gallon gas tank, supply house, 50 foot hose/nozzle, 100 gallons of diesel fuel, [and a] plow part[.]” Appellant's App. Vol. II p. 15. The case proceeded to trial, at the conclusion of which a jury found Kessie guilty as charged.

[4] A presentence investigation report (“PSI”) that was compiled prior to sentencing indicated that Kessie's financial status was “[n]ot [s]table” and that while Kessie is “a certified welder[,]” he was unemployed. Appellant's App. Vol. II pp. 97, 106. The trial court entered judgment of conviction on both counts and sentenced him to an aggregate three-and-one-half-year sentence, with three years executed and six months suspended to probation. The trial court also ordered Kessie to pay restitution to Pence in the amount of $1402.10 and to Farm Bureau in the amount of $1122.00 “while on probation.” Tr. Vol. II p. 144.

Discussion and Decision

I. Kessie's Convictions for Two Counts of Level 6 Felony Theft Violate the Prohibitions Against Double Jeopardy

[5] Questions of law, including double-jeopardy claims, are reviewed de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024). “[S]ubstantive double jeopardy refers to claims related to multiple convictions for the same offense in a single proceeding.” Id. at 1066. “Substantive double jeopardy claims come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims.” Wadle v. State, 151 N.E.3d 227, 247 (Ind. 2020). While Wadle implicates the latter scenario, the Indiana Supreme Court's decision in Powell v. State, 151 N.E.3d 256 (Ind. 2020), implicates the former.

[6] The parties agree that Kessie's two convictions for Level 6 felony theft violate the prohibitions against double jeopardy. The parties disagree, however, as to whether Wadle or Powell applies. Kessie argues Wadle. The State argues Powell.

When a statute defines a common base offense that can be elevated to higher penalty levels through attendant circumstances or results, the base offense and its elevated forms together constitute one statutory offense. But when a statute defines distinct base offenses, the elevated forms derived from those separate bases are distinct statutory offenses. Thus, in deciding whether Powell or Wadle applies, the fact that two offenses either appear in the same statutory section or differ only in their enhancing circumstances is not dispositive. The key question is whether the elevated offenses share a common underlying base offense.

Moyers v. State, 277 N.E.3d 33, 39–40 (Ind. 2026). It is undisputed that the two theft charges at issue in this case share a common underlying base offense. As such, we agree with State that Powell applies.

[7] The question presented under Powell “is not whether one offense is included in the other[.]” Powell, 151 N.E.3d at 263. “Instead, we ask whether the same act may be twice punished as two counts of the same offense.” Id. (internal quotations and footnote omitted).

In resolving a claim of multiplicity, our task is to determine whether the statute permits punishment for a single course of criminal conduct or for certain discrete acts—the successive, similar occurrences—within that course of conduct. Put differently, we ask whether—and to what extent—the applicable statute permits the fragmentation of a defendant's criminal act into distinct units of prosecution.

This inquiry involves a two-step process.

First, we review the text of the statute itself. If the statute, whether expressly or by judicial construction, indicates a unit of prosecution, then we follow the legislature's guidance and our analysis is complete. But if the statute is ambiguous, then we proceed to the second step of our analysis.

Under this second step, a court must determine whether the facts—as presented in the charging instrument and as adduced at trial—indicate a single offense or whether they indicate distinguishable offenses. To answer this question, we ask whether the defendant's actions are so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction. If the defendant's criminal acts are sufficiently distinct, then multiple convictions may stand; but if those acts are continuous and indistinguishable, a court may impose only a single conviction. Any doubt counsels against turning a single transaction into multiple offenses.

Id. at 264–65 (internal citations and quotations omitted).

[8] Indiana Code section 35-43-4-2(a) provides that “[a] person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft[.]” The offense is a Level 6 felony if “(A) the value of the property is at least seven hundred fifty dollars ($750) and less than fifty thousand dollars ($50,000); [or] (B) the property is a ․ motor vehicle[.]” Ind. Code § 35-43-4-2(a)(1). To “ ‘exert control over property’ means to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property.” Ind. Code § 35-43-4-1(a). Control is “unauthorized” if it is exerted “without the other person's consent.” Ind. Code § 35-43-4-1(b)(1). In this case, Kessie was convicted of two counts of Level 6 felony theft, with one count relating to the theft of the truck and the other relating to the theft of the contents of the truck.

[9] In finding Kessie guilty of two counts of Level 6 felony theft, the jury found that he had exerted unauthorized control over property belonging to Pence, i.e., the truck and its contents. The State concedes that “[s]tealing a truck and its contents is a single theft.” Appellee's Br. p. 6. We agree. It appears undisputed that the truck and its contents were taken at the same time. Kessie's act of stealing the truck and its contents cannot be distinguished and, as such, “a court may impose only a single conviction.” Powell, 151 N.E.3d at 264–65. The record therefore demonstrates that Kessie committed a single offense which deprived Pence of the use and value of both the truck and its contents. On remand, we instruct the trial court to vacate one of Kessie's convictions for Level 6 felony theft and to re-sentence him accordingly.

II. On Remand, the Trial Court Must Consider Kessie's Ability to Pay Restitution Before Imposing Restitution as a Condition of Probation

[10] “The principal purpose of restitution is to vindicate the rights of society and to impress upon the defendant the magnitude of the loss the crime has caused.” Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008). “Restitution also serves to compensate the offender's victim.” Id. “[W]hen restitution is ordered as part of an executed sentence, an inquiry into the defendant's ability to pay is not required” because restitution is merely a money judgment. Id. at 773. However, when restitution is ordered “as part of a condition of probation, the court is required to inquire into the defendant's ability to pay.” Id. at 772.

[11] Having already remanded the matter back to the trial court with instructions to vacate one of Kessie's theft convictions, we further instruct the trial court that, if it orders Kessie to pay restitution as a condition of probation, it must first inquire into Kessie's ability to pay. Such an inquiry is not necessary, however, if the trial court orders Kessie to pay restitution as a part of his executed sentence.

[12] The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions.

Bradford, Judge.

Tavitas, C.J., and Felix, J., concur.