Carlin Graffenread v. State of Indiana , 2014 Ind. App. LEXIS 329 ( 2014 )

Jul 17 2014, 9:53 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW D. ANGLEMEYER GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CARLIN GRAFFENREAD, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1310-CR-499
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Amy M. Jones, Judge
The Honorable David Hooper, Commissioner
Cause No. 49F08-1302-CM-10681
July 17, 2014
OPINION FOR PUBLICATION
BARNES, Judge
Case Summary
Carlin Graffenread appeals the trial court’s denial of his motion to defer his dealing
in marijuana charge. We affirm.
Issue
The sole issue before us is whether Indiana Code Section 35-48-4-12 allows for the
deferral of a dealing in marijuana charge.
Facts
On February 1, 2013, an officer found a plastic bag containing approximately
twenty-six grams of marijuana, a metal grinder, a digital scale, and a box of plastic bags in
Graffenread’s car, which was parked on the shoulder of I-70 in Indianapolis. Graffenread
was charged with possession of marijuana and dealing in marijuana, both Class A
misdemeanors. The charges read in part as follows:
Count I: On or about February 1st, 2013, in Marion County,
State of Indiana, the following named defendant,
CARLIN GRAFFENREAD, did knowingly possess,
with intent to deliver, a Controlled Substance, that is:
MARIJUANA, of an aggregate weight of less than
30 grams.
Count II: On or about February 1st, 2013, in Marion County,
State of Indiana, the following named defendant,
CARLIN GRAFFENREAD, did knowingly possess
a Controlled Substance, that is: MARIJUANA, of an
aggregate weight of less than 30 grams.
App. pp. 15-16.
Graffenread petitioned the trial court to defer both charges under Indiana Code
Section 35-48-4-12, which allows a defendant who is charged with possession of marijuana
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as a first offense to have the charge deferred and dismissed if the defendant abides by the
conditions imposed by the trial court. The trial court deferred Graffenread’s possession of
marijuana charge but denied his petition to defer his dealing in marijuana charge.
Graffenread has been granted permission to pursue this interlocutory appeal.
Analysis
Whether Graffenread is entitled to a dismissal of his dealing in marijuana charge is
a matter of statutory interpretation. A question of statutory interpretation is a matter of law
to be determined de novo. Maynard v. State, 859 N.E.2d 1272, 1274 (Ind. 2007), trans.
denied. We are not bound by a trial court’s legal interpretation of a statute and need not
give it deference. Id. We independently determine the statute’s meaning and apply it to
the facts before us, using the express language of the statute and following the rules of
statutory construction. Id. Where the language of the statute is clear and unambiguous,
there is nothing to construe; however, where the language is susceptible to more than one
reasonable interpretation, the statute must be construed to give effect to the legislature’s
intent. Id. The legislature is presumed to have intended the language to be applied logically
and not to bring about an unjust or absurd result. Id. An unambiguous statute must be held
to mean what it plainly expresses, and its plain and obvious meaning may not be expanded
or restricted. Gibson v. Review Bd. of Ind. Dep’t of Workforce Dev., 671 N.E.2d 933,
935-36 (Ind. Ct. App. 1996). At the time Graffenread was charged, the relevant statute in
effect provided:
If a person who has no prior conviction of an offense under this
article or under a law of another jurisdiction relating to
controlled substances pleads guilty to possession of marijuana,
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hashish, salvia, or a synthetic drug as a Class A misdemeanor,
the court, without entering a judgment of conviction and with
the consent of the person, may defer further proceedings and
place the person in the custody of the court under such
conditions as the court determines. Upon violation of a
condition of the custody, the court may enter a judgment of
conviction. However, if the person fulfills the conditions of
the custody, the court shall dismiss the charges against the
person. There may be only one (1) dismissal under this section
with respect to a person.
Ind. Code § 35-48-4-12.
We first note that this interlocutory appeal is premature, which affects our ability to
consider this appeal. Here, Graffenread relies on Indiana Trial Rule 41(B), asserting that
a dismissal of his possession of marijuana charge will be considered an adjudication on the
merits, precluding prosecution of the dealing in marijuana charge. However, he cites no
authority indicating that Trial Rule 41(B) should apply to conditional discharges. In order
for this appeal to be ripe, Graffenread must successfully complete the trial court’s custody
conditions thereby compelling the trial court to dismiss his possession of marijuana charge
in compliance with Indiana Code Section 35-48-4-12. We have held that a conditional
discharge is functionally equivalent to probation, which may be revoked. Perkins v. State,
715 N.E.2d 1016, 1017 (Ind. Ct. App. 1999). Because Graffenread has not fulfilled those
conditions, his conditional discharge may be revoked, and he is not presently entitled to a
dismissal.
Graffenread also asserts that the State will run afoul of double jeopardy by further
prosecution of the dealing in marijuana charge, if the possession charge is dismissed. In
analyzing double jeopardy claims where the same act or transaction violates two distinct
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statutory provisions, the “same elements” test requires that courts look only to statutory
elements of offenses and determine whether each provision requires proof of an additional
fact which the other does not. See Richardson v. State, 717 N.E.2d 32, 50 (Ind. 1999)
holding modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013). Here, dealing in
marijuana contains an essential element not found in simple possession—the intent to
deliver. Possession of marijuana is defined in part as:
A person who: (1) knowingly or intentionally possesses (pure
or adulterated) marijuana, hash oil, hashish, salvia, or a
synthetic drug; (2) knowingly or intentionally grows or
cultivates marijuana; or (3) knowing that marijuana is growing
on the person's premises, fails to destroy the marijuana plants;
commits possession of marijuana, hash oil, hashish, salvia, or
a synthetic drug, a Class A misdemeanor.
I. C. § 35-48-4-11. Dealing in marijuana is defined in part as:
A person who: (1) knowingly or intentionally: (A)
manufactures; (B) finances the manufacture of; (C) delivers; or
(D) finances the delivery of; marijuana, hash oil, hashish,
salvia, or a synthetic drug, pure or adulterated; or (2)
possesses, with intent to: (A) manufacture; (B) finance the
manufacture of; (C) deliver; or (D) finance the delivery of;
marijuana, hash oil, hashish, salvia, or a synthetic drug, pure
or adulterated; commits dealing in marijuana, hash oil, hashish,
salvia, or a synthetic drug, a Class A misdemeanor.
I. C. § 35-48-4-10.
Graffenread’s contention may be restated as collateral estoppel, which is not the
same as double jeopardy but rather is embodied within the protection against double
jeopardy. Garrett, 992 N.E.2d at 720. Collateral estoppel precludes the government from
using certain facts already decided by a jury’s acquittal in a prior trial to establish the facts
of a crime in relitigation. See id. Graffenread points out that both charges include the
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knowing possession of marijuana as elements and claims that the State will not be able to
relitigate those facts after he completes the conditions of his conditional discharge. Even
if Graffenread eventually has his possession of marijuana charge dismissed, seeking a
conviction for dealing in marijuana will invoke neither the double jeopardy clause nor
collateral estoppel. Double Jeopardy is designed to prevent retrial for the “same offense.”
Here, there has been no trial and no acquittal as evidenced by the fact that the statutory
conditional discharge requires a plea of guilty to the offense being discharged. A defendant
cannot plead guilty to a lesser offense and then claim double jeopardy bars prosecution for
a greater offense. See Moore v. State, 882 N.E.2d 788, 793-94 (Ind. Ct. App. 2008).
Furthermore, the dealing in marijuana offense is not the same offense as possession of
marijuana because it contains the additional essential element of the intent to deliver.
We conclude that the language of Indiana Code Section 35-48-4-12 is clear and
unambiguous on its face and does not run afoul of double jeopardy or collateral estoppel.
We therefore must not expand or restrict what the statute clearly and plainly expresses.
The statute’s conditional deferment and dismissal clearly applies only to first time
offenders who are charged with possession of marijuana, hashish, salvia, or a synthetic
drug. There is no language within the statute to indicate that the legislature intended to
include within the statute greater offenses that might include possession as an element. The
legislature chose to allow leniency for some drug possession charges, but not drug dealing
charges.
Conclusion
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The language of Indiana Code Section 35-48-4-12 is clear and unambiguous on its
face and does not run afoul of double jeopardy or collateral estoppel protections. We
affirm.
Affirmed.
BAKER, J., and CRONE, J., concur.
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