Patrick Cummings v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Apr 22 2016, 6:31 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Gregory F. Zoeller
Nashville, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Patrick Cummings, April 22, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1509-CR-1472
v. Appeal from the Marion Superior
Court
State of Indiana,
The Honorable Shatrese M.
Appellee-Plaintiff Flowers, Judge
The Honorable David Seiter,
Commissioner
Trial Court Cause No.
49G20-1312-FB-79001
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1472 | April 22, 2016 Page 1 of 3
[1] Patrick Cummings was charged with and convicted of class B felony dealing in
cocaine and class D felony possession of cocaine based on a single sale to
undercover officers in December 2013. The trial court entered judgment of
conviction on both counts, “merge[d]” them for sentencing purposes, and
sentenced Cummings to twelve years on the dealing conviction. Tr. at 105.
[2] On appeal, Cummings argues that his convictions violate double jeopardy
principles. The State concedes the issue. As we explained in Bookwalter v. State,
The Indiana Constitution provides in part, “No person shall be
put in jeopardy twice for the same offense.” Ind. Const. art. I, §
14. Two offenses are the “same offense” and violate the double
jeopardy clause of the Indiana Constitution if, with respect either
to the statutory elements of the challenged crimes or the actual
evidence used to convict the defendant of the offenses, the
essential elements of one challenged offense also establish the
essential elements of another challenged offense. Spivey v. State,
761 N.E.2d 831, 832 (Ind. 2002). The latter of these forms of
double jeopardy is termed the “actual evidence test.” Id.
“Possession of a narcotic drug is an inherently included lesser
offense of dealing that drug, and a defendant generally may not
be convicted and sentenced separately for both dealing and
possession of the same drug,” unless “the dealing and possession
charges are specifically based only on the respective quantities.”
Quick v. State, 660 N.E.2d 598, 601 (Ind. Ct. App. 1996) (citing,
inter alia, Mason v. State, 532 N.E.2d 1169, 1172 (Ind. 1989), cert.
denied ).
22 N.E.3d 735, 742 (Ind. Ct. App. 2014), trans. denied (2015).
[3] The charging information in this case does not distinguish quantities, and
therefore Cummings’s possession and dealing of cocaine was the “same
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1472 | April 22, 2016 Page 2 of 3
offense” for double jeopardy purposes. “A double jeopardy violation occurs
when judgments of conviction are entered and cannot be remedied by the
‘practical effect’ of concurrent sentences or by merger after conviction has been
entered.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008) (quoting
Morrison v. State, 824 N.E.2d 734, 741-42 (Ind. Ct. App. 2005), trans. denied),
trans. denied (2009). Therefore, we remand with instructions to vacate the class
D felony possession conviction, which will not affect Cummings’s sentence.
The trial court need not hold a new sentencing hearing on remand.
[4] Remanded.
Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1472 | April 22, 2016 Page 3 of 3