14-year sentence affirmed for man who killed 2 in high-speed crash

A man must serve a 14-year sentence for driving his SUV through a red light at 89 mph and killing two women whose car he slammed into in a Speedway intersection, the Indiana Court of Appeals ruled Friday. The decision also further chipped away at 1999 caselaw partially overturned this year that had stood as double jeopardy jurisprudence.

Carl Lee Hill appealed his reckless homicide convictions and sentence connected to the deaths of Donna Rosebrough, 60, and her 86-year-old mother, Nola Spears. The appeals court that upheld judgments in Hill’s case noted that the high-speed crash on Crawfordsville Road at Lynhurtst Drive on March 24, 2018, happened despite the road being wet from snow and the speed limit being 40 mph.

At a Marion Superior Court jury trial, Hill was convicted of Level 5 felony reckless homicide for Spears’ death, but the jury hung on the count related to Rosebrough’s death. Before a retrial began, Hill pleaded guilty to the count involving Rosebrough and admitted to being a habitual offender. The court entered consecutive sentences on the two homicide counts and the habitual offender enhancement for a total sentence of 14 years.

On appeal, Hill unsuccessfully argued in Carl Hill v. State of Indiana, 19A-CR-2083, that his reckless homicide convictions constituted double jeopardy and that his sentence was inappropriate.

The appeals panel found that Hill’s claims could not prevail under the double jeopardy tests revised by the Indiana Supreme Court this year in Wadle v. State, 151 N.E.3d 227, and Powell v. State, 151 N.E.3d 256, nor would it have succeeded under the prior standard of Richardson v. State, 717 N.E.2d 32 (Ind. 1999).

“… Hill contends that Wadle and Powell overruled only the constitutional tests from Richardson (‘statutory elements’ and ‘actual evidence’) and did not eliminate the ‘five categories of common-law protections’ identified by Justice (Frank) Sullivan in his concurring opinion in Richardson … and later adopted by the full court in Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002),” Judge Nancy Vaidik wrote for the panel. “He then argues that his convictions run afoul of one of those five protections — the ‘very same act’ rule, which prohibits ‘[c]onviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished.’ … We disagree on both points.”

The panel noted the five protections first enunciated in Richardson, including the “very same act” rule, did not survive Wadle. “Reading Wadle in its entirety, along with Powell, it becomes clear that the Court’s intent was to do away with all existing rules and tests for substantive double jeopardy —including both the Richardson constitutional tests and Justice Sullivan’s five protections — and start from scratch with new tests. The only common-law rule that survived Wadle and Powell is the continuous-crime doctrine, though only as part of the new tests, not as a separately enforceable double-jeopardy standard.”

In a footnote, the panel noted that it disagreed with prior Court of Appeals rulings issued last month — Shepherd v. State and Rowland v. State — that “left undisturbed the five protections identified by Justice Sullivan … .”

But under either analysis, the panel found that Hill’s double jeopardy claim must fail because different victims were killed in the crash. “Hill cites Clem v. State, an 1873 opinion in which our Supreme Court stated, ‘Where, by the discharge of a fire-arm, or a stroke of the same instrument, an injury is inflicted upon two or more persons, or their death is produced, there is but one crime committed.’ 42 Ind. 420, 429 (1873). In Powell, the Court expressly overruled Clem. … But that was largely a formality, because ‘more recent precedent’ had already rendered Clem ‘an outlier.’”

The panel likewise refused to revise Hill’s sentence as inappropriate, noting the nature of the crime and his 13 felony convictions and more than 20 misdemeanor convictions from 1993 to 2016. The panel did remand for a sentencing correction, however, instructing the court to attach his habitual offender enhancement to one of his reckless homicide convictions rather than entering it as a separate conviction.