Justin Corbin v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 23 2016, 8:53 am
regarded as precedent or cited before any
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
Darren Bedwell Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justin Corbin, February 23, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1508-CR-1209
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Daniel L. Pflum,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
49G20-1211-FA-78169
Najam, Judge.
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Statement of the Case
[1] Justin Corbin appeals his conviction and sentence for possession of heroin, as a
Class C felony, following a guilty plea. Corbin raises a single issue for our
review, namely, whether the trial court violated Corbin’s right to be free from
double jeopardy when it entered its judgment of conviction against Corbin for
possession of heroin. We affirm.
Facts and Procedural History
[2] On November 16, 2012, the State charged Corbin with two counts. Count I
alleged that Corbin had, on November 15, knowingly possessed heroin with
intent to deliver, as a Class A felony. Count II alleged that, on the same day,
Corbin had knowingly possessed heroin.
[3] The trial court scheduled Corbin’s jury trial for November 13, 2014. After the
jury had been empaneled but before the presentation of evidence, Corbin
pleaded guilty to both Count I and Count II in open court and without the
benefit of a plea agreement. Thereafter, the State informed the trial court as
follows:
If this case had gone to trial, Judge, the State would have shown
that[,] on November 15, 2012[,] in the afternoon, a 2004 Toyota
was stopped . . . for a traffic offense. Driving that vehicle
was . . . Corbin. It was discovered that his driving privileges
were suspended. He was placed under arrest. At this time there
was a K-9 sniff of his vehicle . . . which . . . indicated . . .
positive . . . . The vehicle was searched and nothing was found.
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The officer that was involved with the traffic stop suspected Mr.
Corbin may have narcotics on him by the way he was acting. He
was taken to roll call . . . where he was searched, and actually he
recovered it himself and gave approximately 14 grams of heroin
that was in his buttocks area to Sergeant Scott Primer. He then
gave a brief interview to Sergeant Primer in which he admitted
that he put the heroin on his body as he was being pulled over
and that he intended to deal that heroin at various locations to
various different people. He then gave consent to search a
residen[ce] . . . where he lives with his girlfriend . . . . An[]
additional approximately 11 grams of heroin was found there
with two razor blades[;] several were individually packaged in
small portions of heroin. There w[ere] also two razor blades and
a marijuana pipe was also found at that residence.
That constitutes dealing in a narcotic drug as a Class A Felony
[as alleged in Count I] and possession of a narcotic drug as a
Class C Felony [as alleged in Count II].
Tr. at 10-11. Corbin agreed with the State’s assertions, and the court accepted
Corbin’s guilty plea. The court then entered its judgment of conviction against
Corbin on both Count I and Count II and sentenced Corbin accordingly. This
appeal ensued.
Discussion and Decision
[4] Corbin asserts that the entry of the judgment of conviction against him on
Count II violated his right to be free from double jeopardy because, according
to Corbin, Count II was an inherently lesser included offense to Count I. Entry
of conviction for both an offense and its lesser-included offenses “is
impermissible under both state and federal double jeopardy rules.” Wentz v.
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State, 766 N.E.2d 351, 359-60 (Ind. 2002). An offense is an inherently lesser
included offense when it may be established by proof of the same material
elements or less than all the material elements that define the “greater” crime
charged. Smith v. State, 881 N.E.2d 1040, 1046 (Ind. Ct. App. 2008). Stated
another way, an offense is an inherently lesser included offense “if it is
impossible to commit the greater offense without first having committed the
lesser.” Bush v. State, 772 N.E.2d 1020, 1023-24 (Ind. Ct. App. 2002) (citing
Zachary v. State, 469 N.E.2d 744, 749 (Ind. 1984)), trans. denied. Of course, “if
the evidence indicates that one crime is independent of another crime, it is not
an included offense.” Wilhelmus v. State, 824 N.E.2d 405, 416 (Ind. Ct. App.
2005) (citing Ingram v. State, 718 N.E.2d 379 N.E.2d 381 (Ind. 1999)). Thus,
whether an offense is included in another “requires careful examination of the
facts and circumstances of each particular case.” Iddings v. State, 772 N.E.2d
1006, 1017 (Ind. Ct. App. 2002), trans. denied.
[5] We initially note that the State asserts that Corbin has waived his argument on
appeal by pleading guilty in the trial court. In particular, the State relies on
Mapp v. State, 770 N.E.2d 332, 334-35 (Ind. 2002), in which the Indiana
Supreme Court stated that, generally, “[d]efendants waive a whole panoply of
rights by voluntarily pleading guilty,” including “the right to attack collaterally
one’s plea based on double jeopardy.” However, this court has repeatedly
recognized that, “[w]hen a defendant pleads guilty without the benefit of a plea
bargain,” as Corbin did, “there is no waiver.” Kunberger v. State, ___ N.E.3d
___, No. 02A03-1505-CR-304, 2015 WL 7753077, at *3 (Ind. Ct. App. Dec. 2,
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2015) (collecting cases). Accordingly, we reject the State’s argument that
Corbin has waived his claim of error on appeal.
[6] Turning to the merits of Corbin’s appeal, we cannot agree with his assertion
that Count II was an inherently lesser included offense to Count I. As
demonstrated by the factual basis presented to the trial court, had Corbin gone
to trial the State would have presented evidence that showed two offenses. In
particular, the State would have demonstrated that Corbin possessed heroin on
his person at the time of his arrest that he “intended to deal . . . at various
locations to various different people.” Tr. at 11. Those facts were the basis for
Count I. The State then separately would have demonstrated that Corbin
possessed an “additional approximately 11 grams of heroin” at his residence.
Id. That fact formed the basis for Count II. Hence, the evidence demonstrated
that Count II was independent of Count I; that is, Corbin separately committed
dealing, as alleged in Count I, and possession, as alleged in Count II. Thus,
Count II is not an included offense of Count I. See Wilhelmus, 824 N.E.2d at
416; Iddings, 772 N.E.2d at 1017-18. We affirm Corbin’s conviction for Count
II.
[7] Affirmed.
Riley, J., and May, J., concur.
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