FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN     STEVE CARTER
Lawrenceburg, Indiana    Attorney General of Indiana

            GRANT H. CARLTON
            Deputy Attorney General
             Indianapolis, Indiana

MICHAEL ANKNEY,         )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 15A05-0404-CR-216
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

2.    Whether his convictions for attempted escape and resisting law enforcement violate double jeopardy.

3.    Whether the trial court abused its discretion when it sentenced him.

    We affirm in part, reverse in part, and remand with instructions.

It is obvious that he is not competent to stand trial at this time but considered to be restorable with appropriate psychiatric treatment.

Appellant’s App. at 27. After undergoing treatment, Ankney was ultimately deemed competent to stand trial and returned to the LEC. Because Ankney continued to exhibit symptoms of his mental illness, his counsel requested a reevaluation of his competency on July 25, 2003. Accordingly, the trial court ordered that Ankney again be evaluated by two psychiatrists, who concluded that he was competent to stand trial.
    During a December 12, 2003 hearing, Ankney conceded that he was competent to stand trial. However, his counsel advised the trial court and the State as follows:
Mr. Ankney wants this matter brought to trial as soon as possible and I concur with that, although I am going to proceed with a defense and I will put the State on notice at this time that when this action occurred, that Mr. Ankney was not . . . in essence I guess [we would assert] an insanity defense . . . a temporary insanity defense that because of his mental condition at the time, he was not able to control his actions or appreciate the fact that they were illegal and the consequences thereof, and in order to pursue that defense we might have to ask for a continuance if I can’t get that evidence before the Court in time or prepared in time by January 5 . . . .

Transcript at 31. But Ankney never submitted a written notice of his intention to assert an insanity defense, nor did he move for a continuance or submit evidence to the trial court in support of such a defense.
When Ankney’s jury trial began on February 2, 2004, the trial court ruled on the State’s motion in limine, which sought to preclude Ankney from asserting an insanity defense. The trial court granted the motion, but explained that ruling as follows:
COURT:    What that means is . . . before you can present any such evidence [of Ankney’s mental illness] you’re going to have to approach the bench and obtain permission from the Court . . . . I think we’ve discussed this in chambers, is that acceptable Counsel?

[Ankney’s Counsel]:    Yes, Your Honor.
COURT:    That’s not saying that such evidence may not be permitted, . . . it just means you’re going to have to approach the bench and obtain permission from the Court after making an offer to prove so I can see where this is at . . . .

Transcript at 37. Ankney only made one offer to prove in an effort to present evidence of his mental illness, but the trial court excluded that proffered testimony. The jury acquitted Ankney on the public intoxication and false informing charges, but found him guilty of the remaining charges. The trial court entered judgment accordingly and sentenced him to a total executed term of fifteen years. This appeal ensued.

[State]:        He’s been declared competent for trial.

COURT:        . . . I would have to sustain that objection on that.

[Ankney’s counsel]:    I’d like to make an offer to prove just for the record.

COURT:        Proceed.

[Ankney’s counsel]:    I would like to make an offer to prove that if Mr. Ankney was allowed to go into his psychiatric history, it would directly affect his relevance as far as his ability to testify and for the jury to understand his testimony; that it is very relevant, and what he is saying here today does not make any sense unless they can put it into perspective with his past history, and that we would argue that we should have the right to test the law on the issue of whether or not you cannot bring up a person’s mental history just because they do not file for an insanity defense. I don’t think that an insanity defense is always warranted even though there may be mental issues involved as far as going to intent, and I think that the defendant should not have to put in a motion for guilty but mentally ill, because I think that such a plea does not help the defendant in any way whatsoever and merely limits his ability to get an acquittal, so I’d like to offer that . . . we would go for those issues if we were allowed to at this point in time.

COURT:        Response?

[State]:    The State’s response is based upon relevancy. The Indiana Supreme Court case Cardine v. State, 475 N.E.2d 696 [1985][sic]. The state of mind of the defendant is not an issue just because of the knowingly and intentionally [element] as that case points out in a murder case, whether there’s diminished capacity is not a defense, incompetency is not relevant, the insanity defense was not raised, the State objects on relevancy grounds.

COURT:    I’m going to sustain the objection. Your offer to prove is noted . . . and I also want to note for the record that the recent examination reflected in the Court’s file found that Mr. Ankney was determined to be competent to stand trial at this time, and that no defense has been filed of insanity.

Transcript at 315-16 (emphases added).
    On appeal, in support of his contention that he was denied his right to present a defense, Ankney states that he “sought to undermine the State’s evidence of intent by presenting to the jury his history of mental illness. Because he was not allowed to do so, the jury had nothing to explain his unusual actions at the jail to determine how those actions bore on the ultimate issue of intent.” Brief of Appellant at 20. But Ankney did not specifically proffer the evidence for the purpose of showing lack of intent. Instead, his stated purpose for the proffered evidence was to help the jury better understand his testimony. We conclude that Ankney has not demonstrated that the trial court denied him his right to present a defense.

Appellant’s App. at 12. In addition, the State charged Ankney with battery for inflicting those same injuries upon each of the three officers. Thus, there is a reasonable possibility that the jury used the same evidence to convict Ankney of resisting law enforcement and each of the batteries. As a result, we remand to the trial court to vacate his conviction for resisting law enforcement. See James v. State, 755 N.E.2d 226 (Ind. Ct. App. 2001) (holding resisting law enforcement conviction violated double jeopardy where same injury supported that conviction and aggravated battery conviction), trans. denied.
Ankney also contends that his Class B felony attempted escape conviction and his felony battery convictions cannot stand because the same injuries were used to enhance each conviction. See footnote We have long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). Among these is the doctrine that where a burglary conviction is elevated to a Class A felony based on the same bodily injury that forms the basis of a Class B felony robbery conviction, the two cannot stand. Id. That principle applies here, and we instruct the trial court to reduce each of Ankney’s battery convictions to Class A misdemeanors. See footnote See id.

689 N.E.2d 678, 685 (footnotes omitted).
In Archer, the defendant pleaded guilty but mentally ill to four Class A felonies, namely, attempted murder, rape, and two counts of criminal deviate conduct, and he was found guilty of being an habitual offender following a bench trial. At sentencing, the trial court found several aggravators, including defendant’s long criminal history, defendant was on parole at the time of the offenses, and the nature and circumstances of the crimes. The court found a single mitigator, namely, the defendant’s mental illness. With regard to that mitigator, the trial court stated:
. . . although the Court does find that there is some evidence presented to the Court that the defendant has some psychological problems, the Court does not find that those psychological problems are to such an extent as to make it impossible for the defendant to control his actions and behavior in society. The Court further finds that any aggravating circumstances, as indicated by the Court, far outweigh that one mitigating circumstance.

Archer, 689 N.E.2d at 682. The trial court sentenced Archer to a total term of 165 years, and he appealed, alleging that his sentence was manifestly unreasonable.
On direct appeal, our supreme court observed that:
With regard to the one mitigating factor, to the extent that the court here makes any effort to go beyond a conclusional assertion that defendant has “some psychological problems,” the court seems to base its statement on the faulty premise that mental illness is an all or nothing proposition, and that unless a defendant is without any ability to control his actions and behavior by virtue of his mental illness, the court should accord little or no weight to his mental illness as a mitigating factor. Specifically, the court stated that defendant’s psychological problems are not “to such an extent as to make it impossible for the defendant to control his actions and behavior in society.” (R. at 663.) The court’s premise is inconsistent with the nature of mental illness, as it has been described by the governing statute which defines it as including any disorder that “substantially disturbs” a person’s behavior and “impairs” the person’s ability to function. Ind. Code § 35-36-1-1. Thus, while a defendant’s ability to control his behavior may be one important factor to consider when evaluating the weight to be accorded a defendant’s mental illness, it is also appropriate to recognize degrees of impairment of that ability, as well as other factors such as the overall limitations upon functioning and the longstanding nature of the mental illness. Stated another way, there may be many kinds of mental illnesses and different degrees to which a person’s behavior can be “substantially disturbed” or his ability to function “impaired” within the meaning of Ind. Code § 35-36-1-1.

Id. at 684-85 (emphases added, footnotes omitted). And the court held that:
Although there are several aggravating circumstances which the court properly found, and although we agree that the facts in this case are “egregious,” defendant’s mental illness should warrant at least some offset to these aggravating circumstances. We conclude that, because defendant’s mental illness is well-documented and long-standing and because it apparently limits his ability to function, it is entitled to some mitigating weight and warrants a reduction of defendant’s total sentence.

Accordingly, we affirm defendant’s convictions. We reduce his sentence on the attempted murder and rape counts each from forty-five (45) to twenty-five (25) years, thus reducing the total sentence from one hundred sixty-five (165) to one hundred twenty-five (125) years.

Id. at 686.
In this case, at sentencing, the trial court found that Ankney’s mental illness “as set forth in the Presentence Investigation” was a mitigating factor and stated that:
the effective mitigation must be tempered by his significant dangerousness to the community at large through his actions before, during and awaiting trial in this matter. Again, I note that during the proceedings today, he has risen from his seat and attempted to confront the Court, which behavior will not be tolerated, but I think is illustrative of his dangerousness that I’m taking into consideration here today.

Transcript at 389-90. The trial court did not acknowledge the severity or long-standing nature of Ankney’s mental illness, and the court did not assess whether Ankney’s illness renders him unable to control his behavior or otherwise limits his ability to function. See Weeks, 697 N.E.2d at 30.
Included in Ankney’s presentence investigation report is the April 2002 competency evaluation report by Thomas Ingraham, M.D., a staff psychiatrist at Logansport State Hospital. That report states in relevant part:
Over the course of the last 9 years, the patient reports having at least 10 psychiatric hospitalizations.

During this hospitalization, the patient appears to have made some progress in the area of insight and judgment concerning his illness and the need for treatment. He recognizes the need for ongoing treatment and particularly for compliance with his medication regimen to prevent any psychiatric decompensations or psychotic episodes. I have also stressed the importance of abstinence from alcohol and drug abuse. The patient does understand that any psychiatric treatment or medication management would be undermined by any alcohol or substance abuse.

Appellant’s App. at 234 (emphasis added).
    In light of the well-documented evidence of Ankney’s significant and long-standing mental illness, we conclude that it is entitled to some mitigating weight and warrants a reduction in his total sentence. As we have already noted, our supreme court in Archer reduced the defendant’s sentence based on the evidence of his mental illness which, the court concluded, “apparently limits his ability to function[.]” 689 N.E.2d at 686. Further, in Weeks, our supreme court ordered a reduction in the defendant’s sentence See footnote to the presumptive term despite the lack of a “clear nexus between Weeks’s illness and the killing[.]” 697 N.E.2d at 31. Weeks had been diagnosed as having schizophrenia, schizoaffective disorder, and bipolar disorder. The court concluded that it was sufficient that “Weeks’s apparently spontaneous act of following [his victim] to the restroom and shooting him, as well as Weeks’s denial of the incident after the fact, are consistent with, if not the obvious product of, his mental impairments.” Id.
Likewise, here, Ankney’s attacks on the officers and attempted escape are “consistent with, if not the obvious product of,” his mental illness, which includes paranoia. See id. Further, within two days after his arrest, two physicians concluded that he was in “a state of psychotic decompensation.” Appellant’s App. at 27. “Psychosis” is defined as “[a] severe mental disorder . . . characterized by derangement of personality and loss of contact with reality and causing deterioration of normal social functioning.” The American Heritage Dictionary 1462 (3d ed. 1992) (emphasis added). Thus, the physicians’ report shows that Ankney’s “ability to function” was limited within two days after he committed the offenses. See Archer, 689 N.E.2d at 686.
Relying on our supreme court’s reasoning in Archer and Weeks, and taking Ankney’s mental illness into account, we hold that Ankney’s fifteen-year sentence is inappropriate in light of the nature of the offenses and Ankney’s character. See App. R. 7(B). Accordingly, we instruct the trial court to reduce Ankney’s sentence for his Class B felony attempted escape conviction to the presumptive term of ten years. See Archer, 689 N.E.2d at 686; Weeks, 697 N.E.2d at 31 (holding reduction to presumptive sentence warranted despite “egregious” nature of offense where evidence showed severe and long-standing mental illness). Also on remand, the trial court should impose the presumptive sentence for each of Ankney’s reduced battery convictions, and all of the sentences should run concurrently, for a total term of ten years. See footnote

Appellant’s App. at 230.