Ronald L. Eckelbarger v. State of Indiana , 2015 Ind. App. LEXIS 747 ( 2015 )

Dec 10 2015, 8:49 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman, & Nix, LLP Attorney General of Indiana
Huntington, Indiana
Karl M Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald L. Eckelbarger, December 10, 2015
Appellant-Defendant, Court of Appeals Case No.
90A02-1503-CR-188
v. Appeal from the Wells Circuit
Court
State of Indiana, The Honorable Kenton W.
Appellee-Plaintiff. Kiracofe, Judge
Trial Court Cause No.
90C01-1406-FB-5
Altice, Judge.
Case Summary
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[1] Following a jury trial, Ronald L. Eckelbarger was convicted of three counts of
Dealing in Methamphetamine,1 as Class B felonies, and one count of
Possession of Chemical Reagents or Precursors with Intent to Manufacture a
Controlled Substance,2 a Class D felony. Eckelbarger was sentenced to an
aggregate term of thirty-two years, with eight years suspended to probation.
Eckelbarger presents three issues for our review:
(1) Do Eckelbarger’s convictions for three counts of Class B
felony dealing in methamphetamine violate the State’s
prohibition against double jeopardy?
(2) Did the trial court abuse its discretion by ordering
consecutive sentences in excess of the maximum term permitted
by Ind. Code § 35-50-1-2(c)?
(3) Is Eckelbarger’s sentence inappropriate in light of the nature
of the offense and his character?
[2] We affirm.
Facts & Procedural History
[3] In May of 2014, Rebecca Markley was on probation for two convictions of
check deception when she tested positive for methamphetamine. In order to
1
Ind. Code § 35-48-4-1.1(a)(1). Effective July 1, 2014, this offense was reclassified as a Level 5 felony.
Because Eckelbarger committed these offenses prior to that date, they retain their prior classification as Class
B felonies.
2
I.C. § 35-48-4-14.5(e). Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because
Eckelbarger committed this offense prior to that date, it retains its prior classification as a Class D felony.
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avoid the repercussions of her probation violation, Markley agreed to act as a
confidential informant for the DETECT Drug Task Force—a joint operation
between Adams County and Wells County. Markley had been romantically
involved with Eckelbarger for approximately two and a half years and identified
him as her source for methamphetamine.
[4] On June 5, 2014, Markley met with two members of the DETECT Drug Task
Force—Detective James Paxton of the Wells County Sheriff’s Department and
Detective Andrew Ellis of the Bluffton Police Department—and signed a
confidential informant agreement in which Markley agreed to complete “a
minimum of two (2) purchases of controlled substances, the type and amount to
be determined by [Detective Paxton].” State’s Exhibit 1. In exchange for her
compliance with the terms of the agreement, the State agreed to dismiss her
probation violation.
[5] On June 6, 2014, Markley contacted Eckelbarger and arranged to drop a box of
pseudoephedrine pills off at his trailer in exchange for a portion of the
methamphetamine that could be produced from it. That afternoon, Markley
met with Detective Paxton, Detective Ellis, and other members of the DETECT
Drug Task Force. The officers searched Markley’s person and vehicle for
contraband and outfitted her with a concealed audio recording/transmitting
device. After providing Markley with a box of pseudoephedrine pills, the
DETECT officers discreetly followed Markley’s vehicle to Eckelbarger’s trailer.
Markley delivered the pseudoephedrine directly to Eckelbarger, and he
immediately removed the pseudoephedrine pills from the blister packs and
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began grinding them. Markley indicated that she would return after work to
pick up the methamphetamine. Markley and the task force officers
subsequently reconvened at their pre-determined meeting location, where
Markley was once again subjected to a thorough search. Several hours later,
Markley contacted Detective Paxton to inform him that she had completed her
shift. As before, she met with the task force officers at the established meeting
location where she was searched and equipped with a recording/transmitting
device before she and the officers drove in separate vehicles to Eckelbarger’s
trailer. With the officers parked nearby and listening to the transaction via the
transmitting device, Eckelbarger provided Markley with a plastic bag
containing a grayish/white substance and explained that he did not know what
had gone wrong with the cooking process to cause it to have an unusual color.
Markley left Eckelbarger’s trailer and provided Detective Paxton with the
plastic bag Eckelbarger had given her. It was later determined that the
grayish/white substance in the bag contained .77 grams of methamphetamine.
[6] On June 13, 2014, the task force set up a second controlled buy with Markley.
Markley again agreed to supply Eckelbarger with pseudoephedrine pills in
exchange for methamphetamine. The task force officers followed the same
procedure as during the prior controlled buy. This time, when Markley
returned to Eckelbarger’s trailer to pick up the finished product, there were
several other people present, and Eckelbarger asked Markley if she wanted “to
do a ‘bump’ real quick.” Appellant’s Appendix at 24. Markley declined and then
went to retrieve a plastic bag containing a white, powdery substance from
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Eckelbarger’s nightstand upon his indication “that it was her stuff.” Id. Again,
Markley turned the bag containing the white, powdery substance over to
Detective Paxton. Subsequent testing confirmed that the bag contained .84
grams of methamphetamine.
[7] On June 14, 2014, Detective Paxton, along with officers from the DETECT
Drug Task Force and Indiana State Police Meth Suppression Team, obtained
and executed a search warrant for Eckelbarger’s trailer. During the search,
officers seized numerous items and ingredients necessary for the one-pot
method3 of manufacturing methamphetamine, including homemade ammonia
reaction vessels (i.e., one pots); homemade hydrochloric acid gas (HCL
generators); Crystal Drain Opener and Kleen-Out drain opener (i.e., sodium
hydroxide/lye); numerous instant cold packs (i.e., ammonium nitrate); Liquid
Fire and Liquid Lightning drain openers (i.e., sulfuric acid); Coleman fuel (i.e.,
organic solvent); salt; lithium battery casings; coffee filters; plastic funnels;
Ziploc bags; vinyl tubing; and hypodermic needles. The officers also found a
receipt in Eckelbarger’s wallet that indicated he had attempted to purchase
Sudafed on May 17, 2014, but had been blocked after the National Precursor
Log Exchange (NPLEx) revealed that he had already purchased his annual
limit of 61.2 grams of pseudoephedrine.
3
At trial, Indiana State Police Trooper Lionel Smith described in significant detail the most commonly
utilized procedure for manufacturing methamphetamine—the “one pot method”—which combines “regular
household chemicals” in a two-step process. Transcript at 266.
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[8] On June 16, 2014, the State charged Eckelbarger with two counts of dealing in
methamphetamine by delivery, Class B felonies (Counts I and II). On June 19,
2014, the State filed additional charges of dealing in methamphetamine by
manufacturing, a Class B felony (Count III) and possession of chemical
reagents or precursors with intent to manufacture a controlled substance, a
Class D felony (Count IV).
[9] A jury trial commenced on January 20, 2015. At the close of the evidence, the
jury found Eckelbarger guilty on all four counts, and the trial court entered a
judgment of conviction accordingly. The trial court held a sentencing hearing
on March 11, 2015. The trial court sentenced Eckelbarger to sixteen years with
four years suspended on each of Counts I, II, and III. As to Count IV, the trial
court sentenced Eckelbarger to three years. The trial court ordered the
sentences on Counts I and II to be served concurrent with one another and
consecutive to the sentence on Count III. The sentence on Count IV was
ordered to run concurrently with the sentence on Count III. Thus, the trial
court sentenced Eckelbarger to an aggregate term of thirty-two years, with eight
years suspended to probation. Eckelbarger now appeals. Additional facts will
be provided as necessary.
Discussion & Decision
Double Jeopardy
[10] Eckelbarger claims that his “two separate convictions for dealing in
methamphetamine by manufacturing it and then delivering it” violate the
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Double Jeopardy Clause of the Indiana Constitution.4 Article 1, section 14 of
the Indiana Constitution provides that “[n]o person shall be put in jeopardy
twice for the same offense.” The Indiana Supreme Court has determined that
two or more offenses constitute the same offense for double jeopardy purposes
“if, with respect to either the statutory elements of the challenged crimes or the
actual evidence used to obtain convictions, the essential elements of one
challenged offense also establish the essential elements of another challenged
offense.” Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013) (citing
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). “Whether convictions
violate double jeopardy is a question of law which we review de novo.” Id.
[11] In arguing that double jeopardy “prohibit[s] two separate convictions for
manufacturing methamphetamine and delivering methamphetamine[,]”
Eckelbarger relies on Indiana’s continuing crime doctrine. See Hines v. State, 30
N.E.3d 1216, 1219 (Ind. 2015). As this court has previously stated, “the
continuing crime doctrine reflects a category of Indiana’s prohibition against
double jeopardy.” Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010).
The continuing crime doctrine provides that “actions that are sufficient in
themselves to constitute separate criminal offenses may be so compressed in
terms of time, place, singleness of purpose, and continuity of action as to
4
Eckelbarger also generally asserts that his conviction runs afoul of the Fifth Amendment to the United
States Constitution, which specifies that “[n]o person shall . . . be subject for the same offen[s]e to be twice
put in jeopardy of life or limb.” None of the cases relied upon by Eckelbarger pertain to a claim under the
United States Constitution. We therefore find Eckelbarger has waived his Fifth Amendment double jeopardy
argument. See Ind. Appellate Rule 46(A)(8)(a).
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constitute a single transaction.” Id. at 735. Thus, in addition to precluding a
defendant from being convicted “of two or more distinct chargeable crimes
when they constitute the ‘same offense[,]’” double jeopardy prohibits
“convicting a defendant multiple times for the same continuous offense.” Id. at
736-37.
[12] At the time Eckelbarger committed the instant offenses, I.C. § 35-48-4-1.1(a)(1)
provided as follows:
[a] person who . . . knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
methamphetamine, pure or adulterated[,] commits dealing in
methamphetamine, a Class B felony.
In Counts I and II, the State alleged that Eckelbarger knowingly delivered
methamphetamine to Markley in controlled drug purchases on June 6 and June
13, 2014, respectively. Count III charged that Eckelbarger knowingly
manufactured methamphetamine on or about June 14, 2014. “Delivery” is
statutorily defined as the “actual or constructive transfer from one (1) person to
another of a controlled substance, whether or not there is an agency
relationship.” I.C. § 35-48-1-11. On the other hand, “[m]anufacture” refers to
the production, preparation, propagation, compounding,
conversion, or processing of a controlled substance, either
directly or indirectly by extraction from substances of natural
origin, independently by means of chemical synthesis, or by a
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combination of extraction and chemical synthesis, and includes
any packaging or repackaging of the substance or labeling or
relabeling of its container. . . .
I.C. § 35-48-1-18.
[13] Eckelbarger concedes that the crime of dealing in methamphetamine “can be
committed by separate acts of manufacturing and delivering
methamphetamine[,]” and that here, “there are separate facts to establish the
manufacturing and the delivery of methamphetamine.” Appellant’s Brief at 8.
Nonetheless, Eckelbarger argues that “[t]he transactions in this case specifically
called for Markley to provide a key ingredient, pseudoephedrine, to Eckelbarger
in order to manufacture methamphetamine, which Markley could later
retrieve.” Id. at 9. According to Eckelbarger, “[t]he manufacture of
methamphetamine was so compressed in terms of time, place, singleness of
purpose and continuity with the delivery of methamphetamine that it did not
constitute a second and distinct crime.” Id. We disagree.
[14] In order to prove that Eckelbarger delivered methamphetamine as charged in
Counts I and II, the State presented evidence that on June 6 and 13, 2014,
Eckelbarger provided Markley with 0.77 gram of methamphetamine and 0.84
gram of methamphetamine, respectively. Therefore, the crime of delivering
methamphetamine was completed each time Eckelbarger transferred
methamphetamine to Markley during the controlled buys.
[15] In turn, in order to convict Eckelbarger of manufacturing methamphetamine,
the State relied on the evidence that was seized from Eckelbarger’s home on
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June 14, 2014, which included numerous items commonly utilized in the
manufacture of methamphetamine, including ammonia reaction vessels, HCL
generators, cut-open instant cold packs, ammonium nitrate pellets, drain
cleaners, organic solvents, stripped out lithium battery casings, soiled coffee
filters, homemade funnels, and vinyl tubing stained with a white residue.
Trooper Smith testified that they found neither an active methamphetamine lab
nor any pseudoephedrine during the search of Eckelbarger’s home. As such, he
opined that the spent ammonia reaction vessels and HCL generators would
have been used in the past to manufacture methamphetamine—“anywhere
from hours to a month” prior to the execution of the warrant. Transcript at 315.
See Bulthuis v. State, 17 N.E.3d 378, 387-88 (Ind. Ct. App. 2014) (sustaining a
conviction for manufacturing methamphetamine where the police found items
commonly used to manufacture methamphetamine even though there was no
evidence of an active methamphetamine lab), trans. denied; see also Vanzyll v.
State, 978 N.E.2d 511, 518 (Ind. Ct. App. 2012) (citing Bush v. State, 772 N.E.2d
1020, 1023 (Ind. Ct. App. 2002), trans. denied) (noting that a conviction for
manufacturing methamphetamine does not require that manufacturing be
completed or that there be actual product).
[16] Although Markley provided Eckelbarger with pseudoephedrine pills on June 6
and June 13, 2014, to use to manufacture methamphetamine which he
subsequently delivered to her, the State did not rely on this evidence to prove
that Eckelbarger solely manufactured methamphetamine on those particular
dates. Rather, the State also presented evidence that between July 21, 2013,
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and June 12, 2014, Eckelbarger purchased pseudoephedrine pills on thirty-eight
separate occasions and was blocked by the NPLEx system on three occasions
because he had already surpassed the annual, legal limit of 61.2 grams.
Detective Ellis testified that “[a] normal person would not buy this [amount of
pseudoephedrine] and it would indicate to me that he has manufactured
methamphetamine.” Transcript at 233. We therefore conclude that
Eckelbarger’s acts of delivering methamphetamine and manufacturing
methamphetamine were not part of the same continuous offense. Eckelbarger’s
convictions do no run afoul of the State’s prohibition against double jeopardy.
Consecutive Sentences
[17] Eckelbarger argues that the trial court abused its discretion in ordering his
sentence on Count II to run consecutively to the concurrent sentences imposed
on Counts III and IV for an aggregate sentence of thirty-two years. He claims
this violates I.C. 35-50-1-2(c), which provides that, except for statutory crimes
of violence,
the total of the consecutive terms of imprisonment . . . to which
the defendant is sentenced for felony convictions arising out of an
episode of criminal conduct shall not exceed the advisory sentence
for a felony which is one (1) class of felony higher than the most
serious of the felonies for which the person has been convicted.
Id. (emphasis added). In this case, Eckelbarger’s most serious charge was a
Class B felony and the advisory sentence for the next highest class of felony—a
Class A felony—is thirty years. See I.C. § 35-50-2-4. Eckelbarger asserts that
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“the trial court was limited to imposing a sentence of [thirty] years” because
“all three counts were closely related in time, place, and circumstance and were
part of a single episode of criminal conduct.” Appellant’s Brief at 10.
[18] An “episode of criminal conduct” refers to “offenses or a connected series of
offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-
1-2(b). Whether multiple offenses “constitute a single episode of criminal
conduct is a fact-intensive inquiry to be determined by the trial court.” Slone v.
State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (quoting Schlichter v. State, 779
N.E.2d 1155, 1157 (Ind. 2002)). In making this determination, “the focus is on
the timing of the offenses and the simultaneous and contemporaneous nature, if
any, of the crimes.” Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008)
(quoting Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006)). The test for
determining whether offenses arise out of a single episode of criminal conduct is
whether “a full account of each crime can be given without referring to the
other offenses.” Reeves v. State, 953 N.E.2d 665, 671 (Ind. Ct. App. 2011), trans.
denied.
[19] Here, Eckelbarger’s conviction for dealing in methamphetamine by delivery
was not dependent on evidence that he also manufactured methamphetamine.
This crime was committed simply by transferring possession of
methamphetamine to Markley on June 13, 2014 (Count II). Likewise,
Eckelbarger’s conviction for dealing in methamphetamine by manufacturing
(Count III) was proven by the discovery of numerous ingredients used in the
production of methamphetamine without reference to Eckelbarger’s delivery of
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the drug to Markley. As we have already determined, the crimes were distinct
in nature and were not part of a continuous transaction. Therefore, we
conclude that Eckelbarger’s crimes were not part of a single episode of criminal
conduct. The trial court was not constrained to impose a sentence capped at
the advisory sentence for a Class A felony.
Inappropriate Sentence
[20] Eckelbarger claims that his thirty-two year sentence is inappropriate. It is well
established that matters of sentencing reside within the discretion of the trial
court, and “the trial court’s judgment should receive considerable deference.”
Hines, 30 N.E.3d at 1225. Nevertheless, despite the fact that the trial court
imposed a sentence that is authorized by statute, we may revise Eckelbarger’s
sentence if, “after due consideration of the trial court’s decision, [we] find[] that
the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Ind. Appellate Rule 7(B). Ultimately, “[t]he
principal role of appellate review should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a perceived ‘correct’
result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
Thus, “whether we regard a sentence as appropriate . . . turns on our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Id. at 1224.
In making this determination, the relevant considerations are the length of the
aggregate sentence and how it is to be served. Id. Eckelbarger bears the burden
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of persuading our court that his sentence is inappropriate. Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012).
[21] Eckelbarger was convicted of three Class B felonies and one Class D felony.
For a Class B felony, the sentencing range is six to twenty years, and the
advisory sentence is ten years; for a Class D felony, the sentencing range is six
months to three years, with an advisory sentence of one and one-half years.
I.C. §§ 35-50-2-5; -7(a). Eckelbarger was sentenced to sixteen years on each of
the Class B felonies and three years on the Class D felony. The sentences for
the two dealing convictions which arose out of the two controlled buys were
ordered to be served concurrently. It was only the sentences for dealing by
delivery and dealing by manufacturing that were ordered to be served
consecutively. With the imposition of consecutive sentences for these distinct
crimes, Eckelbarger received an aggregate sentence of thirty-two years with
eight years suspended to probation.
[22] We begin with the nature of the offense. As noted by the trial court,
Eckelbarger manufactured methamphetamine, which necessarily involves the
use of toxic, corrosive, and volatile chemicals and the process of which is
extremely dangerous, and he did so “in a trailer park where the homes are
literally feet away from one another.” Transcript at 368. In addition to
manufacturing the drug without regard to the danger posed to others,
Eckelbarger provided methamphetamine to Markley in exchange for
pseudoephedrine during two separate controlled buys.
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[23] With regard to the character of the offender, we note that Eckelbarger attempts
to minimize his culpability by shifting the blame to Markley, suggesting that he
manufactured methamphetamine for her only after she provided him with the
essential ingredient of pseudoephedrine in order to set him up for a controlled
buy. The NPLEx records belie this assertion in that they establish Eckelbarger
was purchasing pseudoephedrine on a frequent basis long before Markley acted
as a confidential informant. Further, Markley informed task force officers that
Eckelbarger had been supplying her with methamphetamine for a substantial
period of time.
[24] Eckelbarger also directs our attention to the fact that he was a member of the
United States Marine Corps from 1969 through 1973, serving in Vietnam before
receiving an honorable discharge. While his service to our country is certainly
admirable, during his subsequent employment as a truck driver, Eckelbarger
began using methamphetamine on a regular basis. Also, at age forty-three,
Eckelbarger experimented with cocaine and used one gram per day for the next
five years. Despite attending substance abuse treatment in 2001, 2012, and for
one week while released on bond in the instant case, Eckelbarger admits that he
continues to suffer from a serious drug addiction.
[25] Eckelbarger additionally notes that he is the father of three grown children, as
well as a six-year-old, and a four-year-old. This fact, however, carries little
weight as a positive attribute of his character considering that Eckelbarger’s
parental rights to his two youngest children were terminated because he failed
to participate in the services recommended by the Department of Child
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Services. Those children are now in the custody of Eckelbarger’s adult
daughter.
[26] In addition to the foregoing, perhaps the most telling of Eckelbarger’s character
is his criminal history. In addition to the numerous uncharged drug offenses
mentioned above, Eckelbarger has a prior conviction for class B felony dealing
in methamphetamine. Eckelbarger has also accumulated convictions for public
intoxication, possession of marijuana, and battery resulting in bodily injury. As
a result of his prior convictions, Eckelbarger has been ordered to complete
community service, has been placed on probation and work release, and has
served time in both jail and the Department of Correction. Eckelbarger has also
previously had his probation revoked for failing a drug test. Neither his prior
penalties nor his rehabilitation attempts in substance abuse facilities have been
sufficient to deter Eckelbarger from committing additional crimes. This is
further evidenced by the fact that less than three months after Eckelbarger was
released on bond to await trial in the instant case, he was charged with a new
offense, assisting a criminal as a Class A misdemeanor. As a result, his bond
was revoked. We further note that Eckelbarger’s own statement during his pre-
sentence investigation interview that he “did [his] part to keep [his] friends[’]
habits going” (Appellant’s Confidential Appendix at 303) gives credence to the trial
court’s statement that Eckelbarger was “a factor in [the] explosion and
epidemic” of methamphetamine cases in Wells County. Transcript at 368.
[27] In light of the nature of the offense and particularly the character of the
offender, which demonstrates quite clearly that Eckelbarger has no regard for
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the laws of this state and has disdain for legal authority, we conclude that the
sentence imposed by the trial court is not inappropriate. 5
[28] Judgment affirmed.
Brown, J., concurs.
Riley, J., concurs in part and dissents in part with separate opinion.
5
The dissent, citing Williams v. State, 891 N.E.2d 621 (Ind. Ct. App. 2008) as support, would exercise this
court’s authority under Ind. Appellate Rule 7(B) to revise Eckelbarger’s sentence such that the sentences
imposed on Counts I and II would run concurrently with the sentences imposed on Counts III and IV. We
understand the Williams court’s stated concern that the State “may not ‘pile on’ sentences by postponing
prosecution in order to gather more evidence.” Id. at 635. We disagree, however, that this concern is
implicated when the underlying crimes are wholly distinct, even where such crimes were discovered as part
of state-sponsored activity. Here, the trial court ordered the sentences for the dealing convictions arising
from the two controlled buys to run concurrently with each other but consecutively to the sentence imposed
for the dealing by manufacturing conviction arising from evidence gathered during execution of a search
warrant. In short, this is not a situation that gives rise to the concern that the State was seeking to “pile on”
charges and resulting sentences.
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IN THE
COURT OF APPEALS OF INDIANA
Ronald L. Eckelbarger, Court of Appeals Case No.
90A02-1503-CR-188
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Riley, Judge, concurring in part and dissenting in part.
[29] I concur with the majority’s conclusion that Eckelbarger’s conviction for
multiple Counts of dealing in methamphetamine does not violate double
jeopardy principles, and I further concur that the trial court was not constrained
in its imposition of consecutive sentences amounting to thirty-two years
because Eckelbarger’s crimes were not part of a single episode of criminal
conduct. However, I dissent with respect to the majority’s determination that
Eckelbarger’s aggregate thirty-two-year sentence is appropriate.
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[30] As the majority found, the serious nature of Eckelbarger’s offenses and his lack
of positive character attributes indicate that a sentence revision is not merited.
Nevertheless, I note that in its argument regarding consecutive sentences, the
State relies on Williams v. State, 891 N.E.2d 621 (Ind. Ct. App. 2008). In
Williams, the defendant was convicted, in part, of two Counts of Class A felony
dealing in cocaine and one Count of Class A felony cocaine possession
following “two nearly-identical, State-sponsored drug transactions within a
short period of time, as well as from evidence seized pursuant to a search
warrant that was procured solely as a result of those State-sponsored
transactions.” Id. at 634-35. The controlled drug purchases in Williams
occurred within twenty-four hours of each other, and the search warrant was
executed within twenty-four hours of the second transaction. Id. at 635. As in
the present case, the Williams court found that the defendant’s “crimes were
separate episodes of criminal conduct justifying multiple convictions.” Id.
Nonetheless, the Williams court concluded that the imposition of consecutive
sentences (i.e., the concurrent sentences for the two dealing charges arising from
the controlled purchases were ordered to be served consecutively to the
sentence for the possession charge arising from the execution of the warrant)
was inappropriate. Id. The court reasoned that “the State may not ‘pile on’
sentences by postponing prosecution in order to gather more evidence . . . as a
direct result of the State-sponsored criminal activity.” Id.
[31] Analogous to Williams, Eckelbarger’s charges for delivering methamphetamine
arose from two, nearly-identical State-sponsored drug purchases that were
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separated by a week. One day after the second transaction, the police executed
a search warrant that was procured solely as the result of those State-sponsored
drug purchases, the fruits of which led to Eckelbarger’s conviction for
manufacturing methamphetamine and possession of precursors with intent to
manufacture. Therefore, as in Williams, I would elect to exercise this court’s
authority under Appellate Rule 7(B) and order that Eckelbarger’s sentences on
Counts I and II run concurrently with his sentences on Counts III and IV, for
an aggregate term of sixteen years, with twelve years executed and four years
suspended to probation. In all other respects, I would affirm.
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