Curtis Martin v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                       FILED
    regarded as precedent or cited before any
    court except for the purpose of establishing                           Nov 13 2019, 9:26 am
    the defense of res judicata, collateral                                     CLERK
    Indiana Supreme Court
    estoppel, or the law of the case.                                          Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Ellen M. O’Connor                                       Curtis T. Hill, Jr.
    Indianapolis, Indiana                                   Attorney General of Indiana
    Josiah Swinney
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Curtis Martin,                                          November 13, 2019
    Appellant-Defendant,                                    Court of Appeals Case No.
    19A-CR-718
    v.                                              Appeal from the Marion Superior
    Court
    State of Indiana,                                       The Honorable Jennifer Harrison,
    Appellee-Plaintiff.                                     Judge
    Trial Court Cause No.
    49G20-1808-F2-29166
    Riley, Judge.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019                Page 1 of 5
    STATEMENT OF THE CASE
    [1]   Appellant-Defendant, Curtis Martin (Martin), appeals his conviction for
    possession of methamphetamine, a Level 3 felony, 
    Ind. Code §§ 35-48-4-6
    .1(a),
    (d)(1).
    [2]   We reverse and remand with instructions.
    ISSUE
    [3]   Martin presents one issue on appeal, which we restate as: Whether his
    conviction for possession of methamphetamine must be vacated because it was
    an included offense of his dealing in methamphetamine conviction.
    FACTS AND PROCEDURAL HISTORY
    [4]   After making two controlled buys of methamphetamine from Martin at his
    home located in the 4800 block of Rixon Avenue in Indianapolis, Indiana,
    officers of the Indianapolis Metropolitan Police Department obtained a search
    warrant for Martin’s home. The search warrant was executed on August 29,
    2018, and netted over thirty grams of methamphetamine, less than one gram of
    heroin, multiple firearms, scales, $868 in cash, surveillance cameras, and body
    armor.
    [5]   On August 31, 2018, the State filed an Information, charging Martin with
    dealing in methamphetamine, a Level 2 felony; possession of
    methamphetamine, a Level 3 felony; possession of a narcotic drug, a Level 5
    felony; unlawful possession of a firearm by a serious violent felon, a Level 4
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019   Page 2 of 5
    felony; and escape, a Level 6 felony. On February 3, 2019, the State filed an
    additional Information, alleging that Martin was an habitual offender.
    [6]   On February 4, 2019, Martin’s bifurcated jury trial began on all charges apart
    from the escape charge, which the State later dismissed. After a two-day trial,
    the jury found Martin guilty as charged. In a separate proceeding, Martin
    pleaded guilty to being a serious violent felon and an habitual offender. On
    March 1, 2019, the trial court entered judgment of conviction on all of the
    charges and sentenced Martin to twenty years for dealing in methamphetamine,
    enhanced by six years for being an habitual offender; ten years for possession of
    methamphetamine; four years for possession of a narcotic drug; and seven years
    for unlawful possession of a firearm by a serious violent felon. All of Martin’s
    sentences were to be served concurrently, for an aggregate sentence of twenty-
    six years.
    [7]   Martin now appeals. Additional facts will be provided as necessary.
    DISCUSSION AND DECISION
    [8]   Martin argues that his convictions and sentencing for dealing in
    methamphetamine and possession of methamphetamine violate statutory
    double jeopardy prohibitions. Indiana Code section 35-38-1-6 provides that
    where a defendant is “charged with an offense and an included offense in
    separate counts[,] and the defendant is found guilty of both counts[,] judgment
    and sentence may not be entered against the defendant for the included
    offense.” An offense is an included offense if it “is established by proof of the
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019   Page 3 of 5
    same material elements or less than all the material elements required to
    establish the commission of the offense charged[.]” I.C. § 35-31.5-2-168(1).
    Possession of methamphetamine is a lesser-included offense of dealing in
    methamphetamine if it is based upon possession of the same
    methamphetamine. Micheau v. State, 
    893 N.E.2d 1053
    , 1066-67 (Ind. Ct. App.
    2008), trans. denied.
    [9]   The State charged Martin with dealing in methamphetamine as follows:
    On or about August 29, 2018, [Martin] did knowingly or
    intentionally possess with the intent to deliver
    methamphetamine, pure or adulterated, said methamphetamine
    having a weight of at least ten (10) grams[.]
    (Appellant’s App. p. 21). The State charged Martin with possession of
    methamphetamine as follows:
    On or about August 29, 2018, [Martin] did knowingly or
    intentionally possess methamphetamine, pure or adulterated the
    said methamphetamine weighing at least 28 grams[.]
    (Appellant’s App. p. 21). On appeal, the State concedes that the “same
    methamphetamine supported each conviction because all the
    methamphetamine was found in the same area of the basement—30.1438
    grams of the 33.1341 grams of methamphetamine was all found in the same
    bag[.]” (Appellee’s Br. p. 6). As a result, the State acknowledges that the
    simple possession offense was an included offense of dealing in
    methamphetamine in this case.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019   Page 4 of 5
    [10]   The trial court erred when it entered judgment on and sentenced Martin for the
    included offense of possession of methamphetamine. See I.C. § 35-38-1-6.
    Accordingly, we remand this case to the trial court with instructions to vacate
    Martin’s possession of methamphetamine conviction.
    CONCLUSION
    [11]   Based on the foregoing, we conclude that the trial court erred in entering
    judgment of conviction and sentence on the included offense of possession of
    methamphetamine.
    [12]   Reversed and remanded with instructions.
    Vaidik, C. J. and Bradford, J. concur
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019   Page 5 of 5
    

Document Info

Docket Number: 19A-CR-718

Filed Date: 11/13/2019

Precedential Status: Precedential

Modified Date: 11/13/2019