Patrick Cummings v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 22, 2016
• Docket: 49A05-1509-CR-1472
• Status: Published

Opinion

MEMORANDUM DECISION FILED Apr 22 2016, 6:31 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

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 Kurt A. Young Gregory F. Zoeller Nashville, Indiana Attorney General of Indiana

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Patrick Cummings, April 22, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1509-CR-1472 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Shatrese M. Appellee-Plaintiff Flowers, Judge

The Honorable David Seiter, Commissioner Trial Court Cause No. 49G20-1312-FB-79001

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1472 | April 22, 2016 Page 1 of 3 [1] Patrick Cummings was charged with and convicted of class B felony dealing in

cocaine and class D felony possession of cocaine based on a single sale to

undercover officers in December 2013. The trial court entered judgment of

conviction on both counts, “merge[d]” them for sentencing purposes, and

sentenced Cummings to twelve years on the dealing conviction. Tr. at 105.

[2] On appeal, Cummings argues that his convictions violate double jeopardy

principles. The State concedes the issue. As we explained in Bookwalter v. State,

The Indiana Constitution provides in part, “No person shall be put in jeopardy twice for the same offense.” Ind. Const. art. I, § 14. Two offenses are the “same offense” and violate the double jeopardy clause of the Indiana Constitution if, with respect either to the statutory elements of the challenged crimes or the actual evidence used to convict the defendant of the offenses, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). The latter of these forms of double jeopardy is termed the “actual evidence test.” Id. “Possession of a narcotic drug is an inherently included lesser offense of dealing that drug, and a defendant generally may not be convicted and sentenced separately for both dealing and possession of the same drug,” unless “the dealing and possession charges are specifically based only on the respective quantities.” Quick v. State, 660 N.E.2d 598, 601 (Ind. Ct. App. 1996) (citing, inter alia, Mason v. State, 532 N.E.2d 1169, 1172 (Ind. 1989), cert. denied ).

22 N.E.3d 735, 742 (Ind. Ct. App. 2014), trans. denied (2015).

[3] The charging information in this case does not distinguish quantities, and

therefore Cummings’s possession and dealing of cocaine was the “same

Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1472 | April 22, 2016 Page 2 of 3 offense” for double jeopardy purposes. “A double jeopardy violation occurs

when judgments of conviction are entered and cannot be remedied by the

‘practical effect’ of concurrent sentences or by merger after conviction has been

entered.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008) (quoting

Morrison v. State, 824 N.E.2d 734, 741-42 (Ind. Ct. App. 2005), trans. denied),

trans. denied (2009). Therefore, we remand with instructions to vacate the class

D felony possession conviction, which will not affect Cummings’s sentence.

The trial court need not hold a new sentencing hearing on remand.

[4] Remanded.

Najam, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1472 | April 22, 2016 Page 3 of 3