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

• Court: Indiana Court of Appeals
• Decided: February 23, 2016
• Docket: 49A02-1508-CR-1209
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1209| February 23, 2016 Page 1 of 5 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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1209| February 23, 2016 Page 2 of 5 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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1209| February 23, 2016 Page 3 of 5 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,

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1209| February 23, 2016 Page 4 of 5 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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1209| February 23, 2016 Page 5 of 5