Pedro Alvarez v. State of Indiana , 983 N.E.2d 626 ( 2013 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LISA M. TRAYLOR-WOLFF GREGORY F. ZOELLER
Logansport, Indiana Attorney General of Indiana
ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
FILED
Feb 26 2013, 8:58 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
PEDRO ALVAREZ, )
)
Appellant-Defendant, )
)
vs. ) No. 09A02-1203-CR-241
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CASS SUPERIOR COURT
The Honorable Rick Maughmer, Judge
Cause No. 09D02-0403-FB-5
February 26, 2013
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Pedro Alvarez (“Alvarez”) appeals his convictions and sentence for two counts of
Class B felony dealing in cocaine. 1
We affirm in part, reverse in part and, remand.
ISSUES
1. Whether the trial court erred in admitting a mug shot of Alvarez.
2. Whether the trial court’s order of consecutive sentences for his
convictions is appropriate.
FACTS
In October of 2003, Kendall Kerschner (“Kerschner”) contacted Detective Jeff
Schnepp (“Detective Schnepp”) of the Cass County Drug Task Force regarding the sale
of crack cocaine by Alvarez. On February 25, 2004, Kerschner, acting as a confidential
informant, along with other officers on the task force, conducted a controlled drug buy
from Alvarez. Kerschner called Alvarez and arranged a meeting at Alvarez’s apartment.
Before leaving task force headquarters, Detective Schnepp searched Kerschner for any
contraband and found none. Kerschner received buy money and was outfitted with an
audio transmitter.
Detective Schnepp drove Kerschner to the area of Alvarez’s apartment and
dropped him off. Detective Schnepp then parked his vehicle in a spot where he was able
to watch Kerschner enter and exit Alvarez’s apartment. Kerschner gave Alvarez $150; in
exchange, Alvarez gave Kerschner three rocks of crack cocaine. Kerschner returned to
Dectective Schnepp’s vehicle and gave him the cocaine.
1
Ind. Code § 35-48-4-1.
2
On February 26, 2004, Detective Schnepp used Kerschner again as a confidential
informant and conducted another controlled drug buy using the same procedures.
Kerschner again gave Alvarez $80, and Alvarez gave Kerschner crack cocaine.
On March 1, 2004, the State charged Alvarez with two counts of dealing in
cocaine, as Class B felonies. On May 10, 2006, a jury trial was held. Having received
notice of the trial date, Alvarez failed to appear. In place of in-court identification, the
State used a redacted mug shot of Alvarez. The jury found Alvarez guilty of both counts
of dealing in cocaine.
Eventually, Alvarez was arrested in Mississippi and a sentencing hearing was held
on February 27, 2012. Finding that the aggravating circumstances outweighed the
mitigating circumstances, the trial court sentenced Alvarez to twenty (20) years executed
on both counts, to be served consecutively in the Department of Correction.
DECISION
1. Admissibility of Mug Shot
Alvarez argues that the trial court erred in allowing the State to introduce his mug
shot into evidence. Alvarez asserts that the manner in which the State admitted the
photograph caused him undue prejudice. We disagree.
“Appellate review of admissibility determinations by the trial court is for abuse of
discretion, and reversal is appropriate only where the decision is clearly against the logic
and effect of the facts and circumstances.” Joyner v. State, 678 N.E.2d 386, 390 (Ind.
1997). “Generally, evidence of a defendant’s prior criminal history is highly prejudicial
and is not admissible.” Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001). “The
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admission of a photo array or fingerprint evidence can lead jurors to conclude that a
defendant has previously been arrested.” Id. But, our Indiana Supreme Court has held
that mug shots are admissible if they are not (1) unduly prejudicial and (2) if they have
substantial independent probative value. Wisehart v. State, 693 N.E.2d 23, 47 (Ind.
1998). Further, we have held that where a defendant fails to appear at trial, the
defendant’s mug shot has substantial probative value for the purpose of proving identity.
See McHenry v. State 401 N.E.2d 745, 749 (Ind. Ct. App. 1980), trans. denied.
Here, the State introduced the mug shot so that witnesses could identify Alvarez as
the person who sold cocaine to the confidential informant. However, the Cass County
Sheriff’s Department only possessed a photograph of Alvarez from a prior arrest and not
his current case. The mug shot was redacted to remove references to the prior arrest. We
also note that neither the State nor its witnesses referred to the origin of the mug shot. In
fact, the only implication that the photo came from a prior arrest arose through the
questioning and argument of Alvarez’s defense counsel. (Tr. 185, 227). Finally, had
Alvarez simply appeared for his trial, there would have been no reason to admit the mug
shot. With these facts and circumstances, we find no abuse of discretion with the trial
court’s admission of the mug shot.
2. Inappropriate Sentence
Alvarez also argues that his sentence was inappropriate. Here, we agree, and the
State concedes, that Alvarez’s sentence was inappropriate. In Beno v. State, 581 N.E.2d
922 (Ind. 1991), our Supreme Court held that where a defendant is convicted of multiple
acts of dealing narcotics arising from sting operations contained in the same
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investigation, maximum and consecutive sentences were not appropriate for each act. In
these types of investigations, the State controls the number of opportunities presented to a
defendant to engage in criminal conduct. As a result, “stacking” the individual counts
has been deemed inappropriate. We held the same in Rios v. State, 930 N.E.2d 664 (Ind.
Ct. App. 2010) (holding that consecutive sentences for two counts based on almost
identical police-sponsored buys was inappropriate), and Bell v. State, 881 N.E.2d 1080(Ind Ct. App. 2008), trans denied (holding that maximum consecutive sentences for three
controlled buys in the same investigation was inappropriate).
“When we find an irregularity in the trial court’s sentencing decision, we may
remand to the trial court for a clarification or a new sentencing determination, or affirm
the sentence if the error is harmless, or impose a proper sentence.” Rios, 930 N.E2d at
669. We elect to impose a proper sentence pursuant to Beno; Alvarez’s sentences shall
run concurrently and not consecutively. All other aspects of the sentence are affirmed.
We remand to the trial court with instructions to enter a new sentencing order and
abstract of judgment consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
FRIEDLANDER, J., and BROWN, J., concur.
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