Kevin M. Dolick v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 6, 2017
• Docket: 79A02-1701-CR-21
• Status: Published

Opinion

MEMORANDUM DECISION FILED Dec 06 2017, 9:26 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin M. Dolick, December 6, 2017

Appellant-Defendant, Court of Appeals Case No. 79A02-1701-CR-21 v. Appeal from the Tippecanoe Circuit Court. The Honorable Thomas H. Busch, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 79C01-1605-F3-12

Friedlander, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017 Page 1 of 6 [1] Kevin M. Dolick pleaded guilty to dealing in methamphetamine, as a Level 3 1 felony, and to using a firearm in a controlled substance offense, an 2 enhancement. The six-year sentence he received for the dealing in

methamphetamine conviction was enhanced by three years based upon his

guilty plea to using a firearm in the commission of the controlled substance

offense. The sole issue Dolick raises for our review, restated, is whether the

three-year enhancement constituted a double jeopardy violation. We affirm.

[2] On September 16, 2015, Tippecanoe County Drug Task Force Officer Donald

Miller was working in an undercover capacity when he conducted a controlled

buy from Dolick for two grams of methamphetamine. Officer Miller met

Dolick in a parking lot, and Dolick entered the officer’s vehicle. Dolick reached

into a bag he was carrying, pulled out a revolver, and laid the weapon on his

lap. Dolick then pulled a plastic container from the same bag, rummaged

through several prepackaged baggies containing methamphetamine, selected a

baggie, and gave the baggie to the officer. Officer Miller paid Dolick $200.00

for the methamphetamine. On September 17 and 23, 2015, Officer Miller

conducted two more controlled buys from Dolick for methamphetamine.

[3] On May 16, 2016, the State charged Dolick with Level 3 felony dealing in

methamphetamine, Level 5 felony possession of methamphetamine, Class A

1 Ind. Code § 35-48-4-1.1(a)(1)(d)(2) (2014). 2 Ind. Code § 35-50-2-13(a)(1) (2015).

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017 Page 2 of 6 misdemeanor carrying a handgun without a license, two counts of Level 4

felony dealing in methamphetamine, two counts of Level 6 felony possession of

methamphetamine, and using a firearm in a controlled substance offense. On

November 21, 2016, Dolick signed a plea agreement and pleaded guilty to

Level 3 felony dealing in methamphetamine and to using a firearm in a

controlled substance offense, an enhancement. The trial court accepted

Dolick’s guilty plea and dismissed the balance of the charges. Dolick was

sentenced to six years for dealing in methamphetamine, enhanced by three

years because he admitted to using a firearm during the commission of the

controlled substance offense. The trial court suspended three years of Dolick’s

aggregate nine-year sentence to probation. Dolick appeals.

[4] Dolick contends that the three-year enhancement of his sentence was an

“impermissible double enhancement” that constituted a double jeopardy

violation under the Indiana Constitution which provides: “No person shall be

put in jeopardy twice for the same offense.” Appellant’s Br. p. 5; Ind. Const.

Art. 1, § 14. He argues his convictions and subsequent sentence violate the

actual evidence test announced in Richardson v. State, 717 N.E.2d 32 (Ind.

1999), which provides:

[T]wo or more offenses are the “same offense” in violation of Article 1, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017 Page 3 of 6 Id. at 49. Specifically, according to Dolick, error occurred when the trial court:

entered judgment of conviction and sentence upon [the dealing in methamphetamine Count] which was elevated to a Level 3 felony by reason of Dolick’s possession of a handgun and then enhanced that sentence . . . by an additional 3 year term [sic] based upon Dolick’s possession of the same handgun as alleged in Count VIII[, using or possessing a handgun while committing a controlled substance offense.]

Appellant’s Br. pp. 5-6. The State argues that Dolick’s double jeopardy

argument is waived because he pleaded guilty.

[5] We note that because Dolick’s argument focuses on duplicative consideration

of the handgun and not of a prior felony, a double enhancement analysis is

inapposite, and Dolick’s argument is more appropriately addressed as a

violation of the double jeopardy clause of the Indiana Constitution. See Ind.

Const. Art. 1, § 14; see also Sweatt v. State, 887 N.E.2d 81, 83 (Ind. 2008) (“The

line of Indiana cases involving the issue of double enhancement reflects an

ongoing examination as to when courts may impose more severe sentences on

defendants who have proven to be repeat offenders.”) (citations omitted). We

cannot entertain this double jeopardy argument, however, because Dolick’s

guilty plea forecloses it.

[6] “Defendants waive a whole panoply of rights by voluntarily pleading guilty.”

Mapp v. State, 770 N.E.2d 332, 334-35 (Ind. 2002). “One consequence of

pleading guilty is restriction of the ability to challenge the conviction on direct

appeal.” Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996). This includes

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017 Page 4 of 6 double jeopardy challenges, Games v. State, 743 N.E.2d 1132 (Ind. 2001),

without exception for even “‘facially duplicative’ charges.” Mapp, 770 N.E.2d

at 334.

[7] Dolick had a choice to either plead guilty to Level 3 felony dealing in

methamphetamine and using a firearm in a controlled substance offense or

proceed to trial on eight criminal counts that included dealing and possession of

methamphetamine and carrying a handgun without a license. Dolick chose to

enter into the plea deal. At the guilty plea hearing, the trial court explained to

Dolick that by pleading guilty, he was waiving any argument that he might

have that he “[could not] be punished twice for having a firearm.” Guilty Plea

Tr. p. 12. Dolick indicated that he understood this. Dolick was told that the

sentencing range for a Level 3 felony is between three and sixteen years, that

the maximum sentencing enhancement for using a firearm is five years, and

that Dolick would “serve both these two counts one at a time because the

enhancement adds on to the basic charge.” Id. at 15. In return for his guilty

plea, the prosecution agreed to dismiss all remaining counts against Dolick. In

its sentencing order, the trial court found as a mitigating factor that Dolick “has

pled guilty [sic] taken responsibility for his crime . . . .” Appellant’s App. Vol. 2

p. 11.

[8] By pleading guilty, Dolick benefited from a bargain. We are now bound to

hold him to the bargain. See Games, 743 N.E.2d at 1135 (explaining that a

defendant who enters plea agreement to achieve advantageous position must

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017 Page 5 of 6 keep the bargain). Dolick has waived his claim of double jeopardy. His

convictions and sentence are affirmed.

[9] Judgment affirmed.

May, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017 Page 6 of 6