On Transfer from the Court of Appeals

DICKSON, J.

The defendant, Samuel Valentin, was convicted of robbery, conspiracy to kidnap, kidnapping, felony murder in the commission of robbery, and felony murder in the commission of kidnapping arising from his involvement in a 1986 hijacking of a van and the kidnapping and killing of its driver. The trial court merged the conviction for kidnapping with that for felony murder in the commission of kidnapping. On direct appeal, this Court vacated the conviction for robbery as a class A felony and ordered that conviction and sentence be entered on the conviction as a class B felony, but otherwise affirmed the trial court. Valentin v. State, 567 N.E.2d 792 (Ind. 1991). After remand, the trial court entered sentences totaling 110 years. In this appeal from the sentencing judgment, the defendant asserts a single claim: that the consecutive sentences imposed for the offenses of conspiracy to commit kidnapping and murder in the commission of kidnapping violate the Double Jeopardy Clause. In a memorandum decision, the Court of Appeals vacated the conviction for conspiracy and the corresponding sentence, finding that it constituted double jeopardy. The State sought rehearing based upon our intervening recent decisions in Games v. State, 684 N.E.2d 466 (Ind. 1997), and Grinstead v. State, 684 N.E.2d 482 (Ind. 1997). Denying rehearing by opinion, the Court of Appeals conceded that the convictions would not violate the federal double jeopardy test acknowledged in Games and Grinstead, but believed that precedent supported construing the double jeopardy provision of the Indiana Constitution to provide greater protection than its federal counterpart. Valentin v. State, 685 N.E.2d 1100 (Ind.Ct.App. 1997). The State seeks transfer, asserting in part that the opinion of the Court of Appeals misconstrues applicable precedent.

Since our decisions in Games and Grinstead there has been considerable discussion by the Court of Appeals regarding the viability of the "manner in which the offenses are charged" test for double jeopardy claims. We grant transfer to address this question.

In Games, we held that "this Court's previous interpretation of the federal Double Jeopardy Clause — which looked beyond the statutory elements, adding the requirement that a reviewing court look to the offenses as charged or to the jury instructions outlining the elements of the crimes — does not comport with federal jurisprudence." Games, 684 N.E.2d at 474. In this case, responding to the State's petition for rehearing in light of Games and Grinstead, the Court of Appeals determined that, as a matter of Indiana constitutional law, it still looks to the manner in which the offenses are charged. Valentin, 685 N.E.2d at 1102.

The Court of Appeals opined that the defendant, by citing to Buie v. State, 633 N.E.2d 250, 260 (Ind. 1994), "invoked the protections of the Indiana Constitution in his brief and through his reliance on Indiana case law," Valentin, 685 N.E.2d at 1102. The court also relied upon Buie to conclude that "Indiana's double jeopardy analysis goes beyond the simple comparison of statutes called for under federal jurisprudence . . . ." Id.

We first note that the defendant in the present case expressly invoked only the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Brief of Petitioner-Appellant at 1, 5, 6. The defendant's brief does not provide a separate analysis of the state double jeopardy claim or argue why it provides protection different than the federal constitution. Brief of Appellant at 11-12. In the absence of any separate state constitutional law argument by defendant, the Court of Appeals should not have based its reversal of defendant's conspiracy conviction on the Indiana double jeopardy clause. Buie is insufficient to support a claim of double jeopardy under the Indiana Constitution. We leave for another day the question of whether double jeopardy claims under Article 1, Section 14 of the Indiana Constitution are entitled to an analysis separate and distinct from the federal constitution.

Transfer is granted. The trial court is affirmed.

SHEPARD, C.J., and SULLIVAN, SELBY, and BOEHM, JJ., concur.