Curtis Martin v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 13, 2019
• Docket: 19A-CR-718
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Nov 13 2019, 9:26 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Curtis Martin, November 13, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-718 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jennifer Harrison, Appellee-Plaintiff. Judge Trial Court Cause No. 49G20-1808-F2-29166

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019 Page 1 of 5 STATEMENT OF THE CASE [1] Appellant-Defendant, Curtis Martin (Martin), appeals his conviction for

possession of methamphetamine, a Level 3 felony, Ind. Code §§ 35-48-4-6.1(a),

(d)(1).

[2] We reverse and remand with instructions.

ISSUE [3] Martin presents one issue on appeal, which we restate as: Whether his

conviction for possession of methamphetamine must be vacated because it was

an included offense of his dealing in methamphetamine conviction.

FACTS AND PROCEDURAL HISTORY [4] After making two controlled buys of methamphetamine from Martin at his

home located in the 4800 block of Rixon Avenue in Indianapolis, Indiana,

officers of the Indianapolis Metropolitan Police Department obtained a search

warrant for Martin’s home. The search warrant was executed on August 29,

2018, and netted over thirty grams of methamphetamine, less than one gram of

heroin, multiple firearms, scales, $868 in cash, surveillance cameras, and body

armor.

[5] On August 31, 2018, the State filed an Information, charging Martin with

dealing in methamphetamine, a Level 2 felony; possession of

methamphetamine, a Level 3 felony; possession of a narcotic drug, a Level 5

felony; unlawful possession of a firearm by a serious violent felon, a Level 4

Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019 Page 2 of 5 felony; and escape, a Level 6 felony. On February 3, 2019, the State filed an

additional Information, alleging that Martin was an habitual offender.

[6] On February 4, 2019, Martin’s bifurcated jury trial began on all charges apart

from the escape charge, which the State later dismissed. After a two-day trial,

the jury found Martin guilty as charged. In a separate proceeding, Martin

pleaded guilty to being a serious violent felon and an habitual offender. On

March 1, 2019, the trial court entered judgment of conviction on all of the

charges and sentenced Martin to twenty years for dealing in methamphetamine,

enhanced by six years for being an habitual offender; ten years for possession of

methamphetamine; four years for possession of a narcotic drug; and seven years

for unlawful possession of a firearm by a serious violent felon. All of Martin’s

sentences were to be served concurrently, for an aggregate sentence of twenty-

six years.

[7] Martin now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [8] Martin argues that his convictions and sentencing for dealing in

methamphetamine and possession of methamphetamine violate statutory

double jeopardy prohibitions. Indiana Code section 35-38-1-6 provides that

where a defendant is “charged with an offense and an included offense in

separate counts[,] and the defendant is found guilty of both counts[,] judgment

and sentence may not be entered against the defendant for the included

offense.” An offense is an included offense if it “is established by proof of the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019 Page 3 of 5 same material elements or less than all the material elements required to

establish the commission of the offense charged[.]” I.C. § 35-31.5-2-168(1).

Possession of methamphetamine is a lesser-included offense of dealing in

methamphetamine if it is based upon possession of the same

methamphetamine. Micheau v. State, 893 N.E.2d 1053, 1066-67 (Ind. Ct. App.

2008), trans. denied.

[9] The State charged Martin with dealing in methamphetamine as follows:

On or about August 29, 2018, [Martin] did knowingly or intentionally possess with the intent to deliver methamphetamine, pure or adulterated, said methamphetamine having a weight of at least ten (10) grams[.]

(Appellant’s App. p. 21). The State charged Martin with possession of

methamphetamine as follows:

On or about August 29, 2018, [Martin] did knowingly or intentionally possess methamphetamine, pure or adulterated the said methamphetamine weighing at least 28 grams[.]

(Appellant’s App. p. 21). On appeal, the State concedes that the “same

methamphetamine supported each conviction because all the

methamphetamine was found in the same area of the basement—30.1438

grams of the 33.1341 grams of methamphetamine was all found in the same

bag[.]” (Appellee’s Br. p. 6). As a result, the State acknowledges that the

simple possession offense was an included offense of dealing in

methamphetamine in this case.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019 Page 4 of 5 [10] The trial court erred when it entered judgment on and sentenced Martin for the

included offense of possession of methamphetamine. See I.C. § 35-38-1-6.

Accordingly, we remand this case to the trial court with instructions to vacate

Martin’s possession of methamphetamine conviction.

CONCLUSION [11] Based on the foregoing, we conclude that the trial court erred in entering

judgment of conviction and sentence on the included offense of possession of

methamphetamine.

[12] Reversed and remanded with instructions.

Vaidik, C. J. and Bradford, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-CR-718 | November 13, 2019 Page 5 of 5