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October 2008 Posts
Double jeopardy – possession and dealing methamphetamine
Micheau v. State, 38A05-0710-CR-578
5th Dist., 09-16-08, Ind.App.
Defense Attorney: Mark A. Delgado
Holding: Where State used evidence of precursors to support Attempted Dealing conviction and evidence of methamphetamine to support Dealing conviction, there was no double jeopardy violation. An offense is the same as another under the actual evidence test when there is a reasonable possibility that the evidence used by the fact-finder to establish the essential elements of one offense may have been used to establish the essential elements of a second challenged offense.
Here, Defendant was charged with: (1) Dealing in Methamphetamine as a Class B felony by possessing, with the intent to manufacture, methamphetamine; (2) Attempted Dealing in Methamphetamine as a Class A felony by possessing enough precursors to produce more than three grams of methamphetamine with the intent to manufacture more than three grams of methamphetamine; (3) Possession of precursors with intent to manufacture methamphetamine as a Class C felony; and (4) Possession of methamphetamine as a Class D felony. Because at trial the State carefully parsed the evidence such that the precursors were used to prove attempted dealing and 0.48 grams of methamphetamine was used to prove dealing in methamphetamine, there was no double jeopardy violation for the two convictions. However, because 0.48 grams was used to prove both possession of methamphetamine and dealing in methamphetamine, the possession of methamphetamine must be vacated.
The parties also agreed that the possession of precursors conviction must be vacated to avoid a double jeopardy violation with the attempted dealing conviction, which was based on the possession of precursors. Held, judgment affirmed, in part, and reversed, in part. Robb, J., concurring on separate issue.
Erroneous imposition of concurrent sentences – issue raised on cross-appeal
Hardley v. State, 49A05-0801-CR-29
5th Dist., 09-26-08, Ind.App. 893/740
Defense Attorney: Kathy Bradley
Holding: Trial court erred in ordering sentences Defendant received in two different cause numbers to be served concurrently. Defendant was charged with theft, released on his own recognizance and then committed and was charged with criminal confinement and battery. Trial court found Defendant guilty of multiple offenses but ordered all counts served concurrently. This was improper in light of I.C. 35-50-1-2(d), which provides: “[i]f, after being arrested for one (1) crime, a person commits another crime…upon the person’s own recognizance[,] the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.” Thus, sentences from two cause numbers were required to be served consecutively. To the extent Hoggatt v. State, 805 N.E.2d 1281 (Ind.Ct.App. 2004), suggests that State must challenge a sentence within thirty days, Majority declines to follow it. State may challenge an illegal sentence in a cross-appeal, even when the defect is not facially apparent. Held, judgment affirmed in part, reversed and remanded to order sentences to be served consecutively. Sullivan, S.J., concurring in part and dissenting in part, would hold: 1) Defendant’s convictions for criminal confinement and battery arose from continuing incident and violate double jeopardy under “actual evidence” test; and 2) where, as here, sentence is not facially erroneous, and State seeks relief on appeal, it must take action within thirty days of sentence or forfeit its right to challenge erroneous sentence, under rationale of Hoggatt.
Bond – court must consider evidence of statutory factors
Samm, Jr. v. State, 46A03-0804-CR-143
3rd Dist., 09-22-08, Ind.App. 893/761
Defense Attorney: Donald W. Pagos
Holding: Although trial court abused its discretion in failing to acknowledge uncontroverted evidence of several of the statutory factors in setting bond, Defendant’s $100,000 cash only bond was not excessive. In addition to considering the seriousness of charges, when setting bond, a trial court should also consider: the length and character of the defendant’s residence in the community; the defendant’s employment status and history; the defendant’s family ties and relationship; the defendant’s criminal record; and the defendant’s previous record in not responding to court appearances. I.C. 35-33-8-4.
Here, Defendant presented uncontroverted testimony that: he was 45-years old and had resided in the county his entire life; he was currently receiving only disability income; he had lived with his mother who also lived in the community; he had submitted to authorities when previously convicted; and he had cooperated with the police prior to arrest by performing controlled buys. In issuing the $100,000 cash bond, trial court relied primarily upon the number of charges that Defendant was facing to determine the amount of bond. Although it is possible that trial court considered all factors, including those based on Defendant’s evidence, without statements on the record the appellate court cannot assume that it did so. Although trial court abused its discretion by failing to acknowledge uncontroverted evidence of several of the factors listed I.C. 35-33-8-4, the $100,000 cash only bond for multiple dealing charges, including a Class A felony, was not excessive. Held, judgment affirmed and remanded; Baker, C.J., dissenting on basis that the majority should not have decided this case under an exception to the mootness doctrine, and rather the case should have been dismissed because it was moot when Defendant eventually was released on a $5,000 surety bond.
