MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 30 2019, 9:11 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E. C. Leicht Curtis T. Hill, Jr. Peru, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus Noy, October 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-820 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff. Menges, Judge Trial Court Cause No. 34D01-1707-F2-820
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 1 of 7 Statement of the Case [1] Marcus Noy (“Noy”) appeals the sentence imposed after a jury convicted him
of Level 2 felony dealing in cocaine;1 Level 3 felony possession of a narcotic
drug;2 and Level 3 felony possession of cocaine.3 He argues that the trial court
abused its discretion in denying trial counsel’s motion to withdraw and also
asks this Court to remand the case to the trial court for clarification of his
sentence. Concluding that: (1) the trial court did not abuse its discretion in
denying trial counsel’s motion to withdraw; and (2) there is a conflict between
the trial court’s oral sentencing statement and the written sentencing statement,
we affirm and remand with instructions for the trial court to clarify the sentence
that it intended to impose.
[2] Affirmed and remanded with instructions.
Issues 1. Whether the trial court abused its discretion in denying trial counsel’s motion to withdraw.
2. Whether this case should be remanded to the trial court for clarification of Noy’s sentence.
1 IND. CODE § 35-48-4-1. 2 I.C. § 35-48-4-6. 3 Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 2 of 7 Decision [3] In June 2017, Noy was a long-term guest at the Baymont Inn in Kokomo.
While cleaning his room, a housekeeper observed on the nightstand a bag
containing a white powdered substance. The housekeeper contacted the hotel
manager, who found in the room another bag containing a white powered
substance. The manager contacted law enforcement officials, who obtained a
warrant to search the room. During the search, law enforcement officials found
296 grams of compressed heroin, 52 grams of cocaine, a digital scale covered in
white residue, Noy’s credit card that also had a white residue on it, and a
cutting agent.
[4] The State charged Noy with Count 1, Level 2 felony dealing in a narcotic drug
(heroin); Count 2, Level 2 felony dealing in cocaine; Count 3, Level 3 felony
possession of a narcotic drug (heroin); and Count 4, Level 3 felony possession
of cocaine. Private counsel (“private counsel”) represented Noy at trial. A jury
convicted Noy of Level 2 felony dealing in cocaine, Level 3 felony possession of
a narcotic drug, and Level 3 felony possession of cocaine, and acquitted him of
Level 2 felony dealing in a narcotic drug.
[5] In February 2019, after the trial, but before the sentencing hearing, Noy sent a
letter to the trial court. In the letter, Noy explained that although he had paid
private counsel to represent him, counsel was “the reason why [Noy] was found
guilty.” (App. 32). According to Noy, counsel “did none of the things [Noy
had] asked.” (App. 32). Specifically, Noy explained that he had asked counsel
“to file a suppression motion about the hotel maids entering [his] room illegally Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 3 of 7 and about hotel policy about the maids cleaning a room that [was] occupied.”
(App. 32). Noy, who believed that he would not have been convicted had the
motion been filed, asked the trial court to appoint a public defender for the
sentencing hearing.
[6] In response to Noy’s letter, private counsel filed a motion to set a counsel status
hearing, which the trial court granted. At the hearing, private counsel told the
trial court that based on Noy’s letter, private counsel believed that there had
been a breakdown in the attorney and client relationship. Private counsel
tendered a motion to withdraw his appearance. The State took no position on
the motion. The trial court explained that Noy did not have the right to have a
public defender appointed for the sentencing hearing “simply because [he did
not] like the way that [private counsel had] handled the trial.” (Tr. Vol. 2 at
170-71). The trial court further explained that there had “been absolutely
nothing that the Court ha[d] seen to show that [private counsel was] either
ineffective or unethical or violated anything else.” (Tr. Vol. 2 at 171).
According to the trial court, it “s[aw] no reason to discharge [private counsel]
simply because [Noy . . . ] didn’t like the outcome of the trial.” (Tr. Vol. 2 at
171). The trial court instructed Noy to choose whether he wanted to represent
himself or be represented by private counsel. After some discussion, Noy
decided that he wanted to proceed with private counsel at the sentencing
hearing. Accordingly, the trial court denied private counsel’s motion to
withdraw, and private counsel represented Noy at the sentencing hearing the
following day.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 4 of 7 [7] After hearing testimony at the sentencing hearing, the trial court vacated the
conviction for Level 3 felony possession of cocaine for double jeopardy reasons.
Thereafter, the trial court orally sentenced Noy to thirty (30) years executed for
Level 2 felony dealing cocaine conviction and sixteen (16) years for the Level 3
felony possession of a controlled substance conviction. The trial court ordered
the sentences to run consecutively to each other and suspended the sixteen (16)
year sentence to supervised probation.
[8] A few days later, the trial court issued a written sentencing order wherein it
sentenced Noy to thirty (30) years executed for the Level 2 felony dealing
cocaine conviction and sixteen (16) years for the Level 3 possession of a
controlled substance conviction. However, the trial court ordered the sixteen
(16) year sentence to be served in the Department of Correction rather than on
probation. Noy now appeals.
Decision [9] Noy argues that the trial court abused its discretion in denying private counsel’s
motion to withdraw. He also asks this Court to remand the case to the trial
court for clarification of his sentence. We address each of his arguments in
turn.
1. Motion to Withdraw
[10] Noy first argues that the trial court abused its discretion in denying private
counsel’s motion to withdraw. However, Noy has waived appellate review of
this issue because his brief, conclusory argument is supported neither by citation Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 5 of 7 to authority nor cogent argument. See Smith v. State, 822 N.E.2d 193, 202-03
(Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 30 2019, 9:11 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E. C. Leicht Curtis T. Hill, Jr. Peru, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus Noy, October 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-820 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff. Menges, Judge Trial Court Cause No. 34D01-1707-F2-820
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 1 of 7 Statement of the Case [1] Marcus Noy (“Noy”) appeals the sentence imposed after a jury convicted him
of Level 2 felony dealing in cocaine;1 Level 3 felony possession of a narcotic
drug;2 and Level 3 felony possession of cocaine.3 He argues that the trial court
abused its discretion in denying trial counsel’s motion to withdraw and also
asks this Court to remand the case to the trial court for clarification of his
sentence. Concluding that: (1) the trial court did not abuse its discretion in
denying trial counsel’s motion to withdraw; and (2) there is a conflict between
the trial court’s oral sentencing statement and the written sentencing statement,
we affirm and remand with instructions for the trial court to clarify the sentence
that it intended to impose.
[2] Affirmed and remanded with instructions.
Issues 1. Whether the trial court abused its discretion in denying trial counsel’s motion to withdraw.
2. Whether this case should be remanded to the trial court for clarification of Noy’s sentence.
1 IND. CODE § 35-48-4-1. 2 I.C. § 35-48-4-6. 3 Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 2 of 7 Decision [3] In June 2017, Noy was a long-term guest at the Baymont Inn in Kokomo.
While cleaning his room, a housekeeper observed on the nightstand a bag
containing a white powdered substance. The housekeeper contacted the hotel
manager, who found in the room another bag containing a white powered
substance. The manager contacted law enforcement officials, who obtained a
warrant to search the room. During the search, law enforcement officials found
296 grams of compressed heroin, 52 grams of cocaine, a digital scale covered in
white residue, Noy’s credit card that also had a white residue on it, and a
cutting agent.
[4] The State charged Noy with Count 1, Level 2 felony dealing in a narcotic drug
(heroin); Count 2, Level 2 felony dealing in cocaine; Count 3, Level 3 felony
possession of a narcotic drug (heroin); and Count 4, Level 3 felony possession
of cocaine. Private counsel (“private counsel”) represented Noy at trial. A jury
convicted Noy of Level 2 felony dealing in cocaine, Level 3 felony possession of
a narcotic drug, and Level 3 felony possession of cocaine, and acquitted him of
Level 2 felony dealing in a narcotic drug.
[5] In February 2019, after the trial, but before the sentencing hearing, Noy sent a
letter to the trial court. In the letter, Noy explained that although he had paid
private counsel to represent him, counsel was “the reason why [Noy] was found
guilty.” (App. 32). According to Noy, counsel “did none of the things [Noy
had] asked.” (App. 32). Specifically, Noy explained that he had asked counsel
“to file a suppression motion about the hotel maids entering [his] room illegally Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 3 of 7 and about hotel policy about the maids cleaning a room that [was] occupied.”
(App. 32). Noy, who believed that he would not have been convicted had the
motion been filed, asked the trial court to appoint a public defender for the
sentencing hearing.
[6] In response to Noy’s letter, private counsel filed a motion to set a counsel status
hearing, which the trial court granted. At the hearing, private counsel told the
trial court that based on Noy’s letter, private counsel believed that there had
been a breakdown in the attorney and client relationship. Private counsel
tendered a motion to withdraw his appearance. The State took no position on
the motion. The trial court explained that Noy did not have the right to have a
public defender appointed for the sentencing hearing “simply because [he did
not] like the way that [private counsel had] handled the trial.” (Tr. Vol. 2 at
170-71). The trial court further explained that there had “been absolutely
nothing that the Court ha[d] seen to show that [private counsel was] either
ineffective or unethical or violated anything else.” (Tr. Vol. 2 at 171).
According to the trial court, it “s[aw] no reason to discharge [private counsel]
simply because [Noy . . . ] didn’t like the outcome of the trial.” (Tr. Vol. 2 at
171). The trial court instructed Noy to choose whether he wanted to represent
himself or be represented by private counsel. After some discussion, Noy
decided that he wanted to proceed with private counsel at the sentencing
hearing. Accordingly, the trial court denied private counsel’s motion to
withdraw, and private counsel represented Noy at the sentencing hearing the
following day.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 4 of 7 [7] After hearing testimony at the sentencing hearing, the trial court vacated the
conviction for Level 3 felony possession of cocaine for double jeopardy reasons.
Thereafter, the trial court orally sentenced Noy to thirty (30) years executed for
Level 2 felony dealing cocaine conviction and sixteen (16) years for the Level 3
felony possession of a controlled substance conviction. The trial court ordered
the sentences to run consecutively to each other and suspended the sixteen (16)
year sentence to supervised probation.
[8] A few days later, the trial court issued a written sentencing order wherein it
sentenced Noy to thirty (30) years executed for the Level 2 felony dealing
cocaine conviction and sixteen (16) years for the Level 3 possession of a
controlled substance conviction. However, the trial court ordered the sixteen
(16) year sentence to be served in the Department of Correction rather than on
probation. Noy now appeals.
Decision [9] Noy argues that the trial court abused its discretion in denying private counsel’s
motion to withdraw. He also asks this Court to remand the case to the trial
court for clarification of his sentence. We address each of his arguments in
turn.
1. Motion to Withdraw
[10] Noy first argues that the trial court abused its discretion in denying private
counsel’s motion to withdraw. However, Noy has waived appellate review of
this issue because his brief, conclusory argument is supported neither by citation Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 5 of 7 to authority nor cogent argument. See Smith v. State, 822 N.E.2d 193, 202-03
(Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal
where the party fails to develop a cogent argument or provide adequate citation
to authority and portions of the record.”), trans. denied.
[11] Waiver notwithstanding, we find no error. Whether to allow counsel to
withdraw is within the trial court’s discretion, and we will reverse only “when
denial constitutes a clear abuse of discretion and prejudices the defendant’s
right to a fair trial.” Strong v. State, 633 N.E.2d 296, 300 (Ind. Ct. App. 1994).
A defendant must demonstrate that he was prejudiced before we may reverse
on this issue. Bronaugh v. State, 942 N.E.2d 826, 830 (Ind. Ct. App. 2011), trans.
denied. Here, Noy has failed to allege or demonstrate that private counsel’s
continued representation at sentencing prejudiced him. The trial court did not
abuse its discretion in denying counsel’s motion to withdraw.
2. Clarification of Noy’s Sentence
[12] Noy also asks this Court to remand the case to the trial court for clarification of
his sentence. The State agrees with Noy’s request. Our review of the
sentencing statements reveals that in the oral sentencing statement, the trial
court ordered Noy’s sixteen (16) year sentence for Level 3 possession of a
controlled substance to be suspended to probation. However, in its written
sentencing statement, the trial court ordered Noy to serve the sixteen (16) year
sentence in the Department of Correction. Where, as here, we are confronted
with a conflict between the oral sentencing statement and the written sentencing
Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 6 of 7 statement, we may remand for clarification. See Weston v. State, 2019 WL
4783480 (Ind. Ct. App. October 1, 2019). Accordingly, we remand with
instructions for the trial court to clarify whether it intended for Noy to serve the
sixteen (16) year sentence on supervised probation or in the Department of
Correction.4
[13] Affirmed and remanded with instructions.
Robb, J., and Mathias, J., concur.
4 Noy also argues that the trial court erred in ordering his sentences to run consecutively to each other and that his aggregate sentence is inappropriate. However, because we are remanding the case to the trial court for a clarification of Noy’s sentence, we need not address these issues.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 7 of 7