“We assign aggravating weight in the low range to Smith’s prior criminal history due to the lack of proximity in time between the prior offenses and the instant offenses.”
How later courts described this case
- “We assign aggravating weight in the low range to Smith’s prior criminal history due to the lack of proximity in time between the prior offenses and the instant offenses.”
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 22 2016, 8:20 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Gregory F. Zoeller
Marion County Public Defender Agency Attorney General
Indianapolis, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Troy Stevenson, July 22, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1512-CR-2057
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff. Flowers, Judge
Trial Court Cause No.
49G20-1308-FB-56735
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016 Page 1 of 8
Statement of the Case
[1] Troy Stevenson (“Stevenson”) challenges his sentences for his Class B felony
dealing in a narcotic drug1 conviction and habitual offender enhancement2 and
his judgment of conviction for his Class D felony possession of a narcotic drug
conviction.3 He argues that: (1) the trial court abused its discretion when it
sentenced him because it did not properly identify aggravating factors; and (2)
the trial court erred when it merged his possession and dealing convictions
without vacating the possession conviction. Because we conclude that the trial
court did not abuse its discretion in identifying aggravators, we affirm in part.
However, we agree that the trial court erred when it merged Stevenson’s
possession and dealing convictions without vacating the possession conviction.
We reverse in part and remand with instructions for the trial court to vacate
Stevenson’s conviction for possession of a narcotic drug.
[2] We affirm in part, reverse in part, and remand.
Issues
1. Whether the trial court abused its discretion when it sentenced
Stevenson.
2. Whether the trial court erred when it merged two of
Stevenson’s convictions without also vacating one of the
convictions.
1
IND. CODE § 35-48-4-1(a)(1)(C).
2
I.C. § 35-30-2-8(a).
3
I.C. § 35-48-4-6.
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016 Page 2 of 8
Facts
[3] In August 2013, Indianapolis Metropolitan Police Department (“IMPD”)
Detective Nicholas Andrews (“Detective Andrews”) received a tip from a
confidential informant that a man with the nickname of “Run” was selling
heroin on the southside of Indianapolis. (Tr. 124). The confidential informant
gave Run’s phone number to Detective Andrews and told him the
neighborhood where Run usually conducted his narcotics transactions.
Detective Andrews and other detectives then set up surveillance in that
neighborhood on August 7 and 14, 2013 and identified “Run” as Stevenson.
[4] On the second day of surveillance, Detective Andrews decided to arrange a
controlled purchase of heroin from Stevenson. That night, he provided a
confidential informant with $120 of prerecorded buy money and outfitted an
undercover detective, David Durant (“Detective Durant”), with an audio
recording device. Detective Durant and the confidential informant then called
Stevenson and arranged to buy heroin. After multiple location changes, they,
along with six to seven officers in an undercover backup van, eventually drove
to a gas station at the intersection of 56th Street and Shadeland Way. At the gas
station, Detective Durant gave Stevenson the $120 in buy money, and
Stevenson gave him 0.9511 grams of heroin in exchange. Subsequently,
Stevenson drove away from the gas station “at a high rate of speed,” and
Detective Durant and the informant met with Detective Andrews and gave him
the heroin. (Tr. 159). Detective Andrews later tried to arrange a second
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016 Page 3 of 8
controlled purchase of heroin from Stevenson, but Stevenson did not answer his
phone.
[5] On August 28, 2013, the State charged Stevenson with Count I, Class B felony
dealing in a narcotic drug and Count II, Class D felony possession of cocaine.4
On February 28, 2014, the State then added an allegation that Stevenson
qualified as an habitual offender because of two prior unrelated felony
convictions.
[6] On October 29, 2014, the trial court conducted a jury trial. However, the trial
resulted in a mistrial due to a misstatement by one of the detectives. The trial
court then held a second jury trial on September 30, 2015, but that trial resulted
in a hung jury. Finally, the trial court held the instant jury trial on October 21,
2015, and the jury found Stevenson guilty of Counts I and II. Stevenson
waived a jury trial on his habitual offender allegation and pled guilty to being
an habitual offender.
[7] Thereafter, the trial court held a sentencing hearing on November 9, 2015. At
the conclusion of the sentencing hearing, the court entered judgments of
conviction on all of the counts. It merged Stevenson’s possession of a narcotic
drug conviction into his dealing conviction and sentenced him to twelve (12)
years executed for the dealing conviction. The court then enhanced this
sentence by ten (10) years for Stevenson’s habitual offender adjudication.
4
The State later amended Count II to Class D felony possession of a narcotic drug.
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016 Page 4 of 8
Stevenson’s aggregate sentence totaled twenty-two (22) years executed in the
Department of Correction.
[8] As a basis for this sentence, the trial court explained:
Court finds in mitigation that defendant is a high school
graduate, so that is a mitigator[] that the court is finding. Many
people come before the court, defendants specifically, they do not
have a diploma, so the court does find that that’s a mitigator[].
That is the only mitigator the court finds in this case. In
aggravation[,] the court finds the defendant’s criminal history,
and the criminal history that the court finds [a]s the aggravators,
is the two prior misdemeanor convictions only. The court does
not find the two prior felony convictions as aggravators, because
they were used for the habitual offender enhancement, so the
prior misdemeanor convictions are an aggravator. Another
statutory aggravator the court is finding is the defendant’s
violation, recently of probation. The defendant had a prior Court
20 sentence, Community Corrections was imposed, he was then
placed on probation, and his probation was revoked as a result of
the new offense, and a new conviction. So, the court does find
that as [an] aggravator. Also in aggravation, the court notes the
nature and circumstances of this offense.
(Tr. 254-55). Stevenson now appeals.
Decision
[9] On appeal, Stevenson raises two arguments: (1) that the trial court abused its
discretion in sentencing him because it did not properly identify aggravating
factors; and (2) the trial court erred because it merged his conviction for
possession of a narcotic drug into his conviction for dealing in a narcotic drug
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016 Page 5 of 8
without vacating the formal judgment of conviction for the possession
conviction. We will address each of these arguments in turn.
1. Sentencing
[10] Stevenson’s argument that the trial court abused its discretion when sentencing
him has two components. First, he asserts that the trial court abused its
discretion because it did not give a detailed explanation for why the nature and
circumstances of his offense were aggravating. Second, he asserts that the trial
court abused its discretion when it found that his probation violation was an
aggravator because the violation was not “recent” like the trial court said in its
oral sentencing statement. (Tr. 255).
[11] Preliminarily, we note that sentencing decisions rest within the sound discretion
of the trial court. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007). Under Indiana’s advisory sentencing
scheme, “once the trial court has entered a sentencing statement, which may or
may not include the existence of aggravating and mitigating factors, it may then
‘impose any sentence that is . . . authorized by statute; and . . . permissible
under the Constitution of the State of Indiana.’” Id. at 491 (quoting I.C. § 35-
38-1-7.1(d) (stating that a court may impose any sentence authorized by statute
“regardless of the presence or absence of aggravating or mitigating
circumstances.”)). As long as the sentence is within the statutory range, it is
subject to review only for an abuse of discretion. Id. at 490. We will find an
abuse of discretion where the decision is clearly against the logic and effect of
the facts and circumstances before the court or the reasonable, probable, and
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016 Page 6 of 8
actual deductions to be drawn therefrom. Id. A trial court may abuse its
discretion in a variety of ways, including: (1) failure to enter a sentencing
statement at all; (2) entering a sentencing statement that includes aggravating
and mitigating factors that are unsupported by the record; (3) entering a
sentencing statement that omits reasons that are clearly supported by the
record; or (4) entering a sentencing statement that includes reasons that are
improper as a matter of law. Id. at 490-91.
[12] We need not address either of Stevenson’s sentencing arguments because
Stevenson does not challenge the trial court’s finding that his criminal history
was an aggravating factor. It is a well-established principle that a single
aggravator is sufficient to support an enhanced sentence. Williams v. State, 891
N.E.2d 621, 633 (Ind. Ct. App. 2008). Therefore, regardless of our
consideration of the trial court’s other two aggravators, the trial court’s
identification of Stevenson’s criminal history was sufficient to support his
sentence. Moreover, it is not an abuse of discretion for a trial court to consider
a remote probation violation as an aggravating factor. See Smith v. State, 889
N.E.2d 261, 264 (Ind. 2008). The proximity in time of the violation merely
impacts the weight that the trial court should assign to it. See id. (“We assign
aggravating weight in the low range to Smith’s prior criminal history due to the
lack of proximity in time between the prior offenses and the instant offenses.”).
We will not review the weight that the trial court assigned to the factor on
appeal. See Anglemyer, 868 N.E.2d at 491.
2. Judgment of Conviction
Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016 Page 7 of 8
[13] Next, Stevenson argues, and the State concedes, that the trial court erred when
it merged Stevenson’s dealing and possession convictions without vacating the
judgment of conviction for the possession conviction. We agree. A trial court’s
act of merging, without also vacating, convictions that violate double jeopardy
prohibitions, is not sufficient to cure the double jeopardy violation. Gregory v.
State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008). Accordingly, we remand this
cause to the trial court with instructions for the trial court to issue a new
sentencing order and abstract of judgment vacating Stevenson’s conviction for
Class D felony possession of a narcotic drug.
[14] Affirmed in part, reversed in part, and remanded.
Kirsch, J., and Riley, J., concur.
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