Cannon v. State

• Decision Date: 28 December 2018
• Docket Number: Court of Appeals Case No. 34A04-1708-CR-1784
• Citation: 117 N.E.3d 643
• Parties: Dion C. CANNON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

117 N.E.3d 643

Dion C. CANNON, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 34A04-1708-CR-1784

Court of Appeals of Indiana.

Filed December 28, 2018

Attorney for Appellant: Derick W. Steele, Kokomo, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Matthew B. Mackenzie, Deputy Attorney General, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Dion C. Cannon (Cannon), appeals the trial court's imposition of a consecutive sentence following a guilty plea.

[2] We affirm.

ISSUE

[3] Cannon presents us with one issue on appeal, which we restate as: Whether the trial court appropriately imposed a consecutive sentence.

FACTS AND PROCEDURAL HISTORY

[4] On January 16, 2014, August 17, 2015, and August 24, 2015, police officers with the Kokomo Police Department, assisted

by confidential informants, engaged in several controlled buys of narcotics from Cannon. On November 5, 2015, the State filed an Information under cause number 34D01-1511-F3-985 (Cause F3-985), charging Cannon with three Counts of dealing a narcotic drug as Level 3 felonies, two Counts of dealing a narcotic drug as Level 5 felonies, and one Count of dealing cocaine, as a Class A felony. A warrant was issued under seal for Cannon's arrest following the filing of these charges.

[5] On November 18, 2015, officers with the Kokomo Police Department served the sealed arrest warrant on Cannon at his residence. When the officers knocked on the residence's door, Cannon, who was alone in the house, yelled, "oh s***, just a minute." Cannon v. State , 99 N.E.3d 274, 277 (Ind. Ct. App. 2018), trans. denied . From a window, the officers observed Cannon conceal something and when he opened the door, the officers detected the odor of burnt marijuana. After Cannon was handcuffed and read his rights, Cannon admitted that "it was marijuana, and that's all the illegal drugs that [I have] in the house." Id. Based on Cannon's statement and the smell of marijuana, the officers obtained a search warrant for the residence. Following evidence recovered during the execution of the search warrant, the State filed an Information under Cause number 34D01-1511-F2-1036 (Cause F2-1036), charging Cannon with dealing a narcotic drug as a Level 2 felony, possession of a narcotic drug as a Level 3 felony, neglect of a dependent as a Level 5 felony, theft of a firearm as a Level 6 felony, possession of marijuana as a Level 6 felony, and maintaining a common nuisance as a Level 6 felony. After a jury trial, Cannon was found guilty of the Level 3 felony possession of a narcotic drug, Class A misdemeanor possession of marijuana, and Level 6 felony maintaining a common nuisance. On June 13, 2017, the trial court sentenced Cannon to an aggregate sentence of fifteen years. We affirmed his sentence on appeal.

[6] After Cannon was convicted and sentenced under Cause F2-1036, Cannon entered into a plea agreement with the State in the instant Cause F3-985, in which he agreed to plead guilty to dealing a narcotic drug as a Level 5 felony, with dismissal of the remaining Counts and sentencing left to the discretion of the trial court. On July 25, 2017, the trial court conducted a sentencing hearing in Cause F3-985. At the completion of the evidence, the trial court sentenced Cannon to 1,825 days in the Department of Correction, with the sentence to run consecutive to the sentence imposed in Cause F2-1036.

[7] Cannon now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

[8] Cannon contends that the trial court abused its discretion by ordering his sentence to be served consecutively to an already imposed sentence in a separate case. This court has the constitutional authority to revise a sentence authorized by statute, if "after due consideration of the trial court's decision," the court finds that the sentence imposed is inappropriate in light of the nature of the offense and the character of the offender. See Ind. Appellate Rule 7(B). The question under App. R. 7(B) is "not whether another sentence is more appropriate" but rather "whether the sentence imposed is inappropriate." King v. State , 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The burden is on the defendant to persuade the appellate court that his sentence is inappropriate. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006). "Sentencing review under Appellate Rule 7(B) is very deferential to the trial court."

Conley v. State , 972 N.E.2d 864, 876 (Ind. 2012). Therefore, when reviewing a sentence, our principal role is to "leaven the outliers" rather than necessarily achieve what is perceived as the "correct" result. Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008). We do not look to determine if the sentence was inappropriate; instead, we look to ensure the sentence was not inappropriate. King , 894 N.E.2d at 268.

[9] In disputing his sentence, Cannon claims that, pursuant to the rationale advanced in Beno v. State , 581 N.E.2d 922 (Ind. 1999) and its progeny, the State cannot be allowed "to create State-sponsored criminal activity, cause a delay in criminal prosecution, and then stack charges resulting directly from the evidence obtained during the State-sponsored criminal activity." (Appellant's Br. p. 9). In Beno , our supreme court held that a series of undercover drug buys performed during a sting operation, while permissible, did not create a circumstance in which it would be "appropriate to then impose maximum and consecutive sentences for each additional violation." Id. at 924. The court elaborated that

[a]s a result of this operation, Beno was hooked once. The State then chose to let out a little more line and hook Beno for a second offense. There is nothing that would have prevented the State from conducting any number of additional buys and thereby hook Beno for additional crimes with each subsequent sale. We understand the rationale behind conducting more than one buy during a sting operation, however, we do not consider it appropriate to then impose maximum and consecutive sentences for each additional violation. If Beno, for instance, had sold drugs to different persons, or if he had provided a different type of drug during each buy, the consecutive sentences imposed might seem more appropriate. Here, however, because the crimes committed where nearly identical State-sponsored buys, consecutive sentences were inappropriate.

Id.

[10] Seven years later, our supreme court expanded on Beno 's precedent in Eckelbarger v. State , 51 N.E.3d 169 (Ind. 2016). In Eckelbarger , the State, through an informant, purchased methamphetamine from Eckelbarger on two occasions and then procured a search warrant based on the informant's buys. Id. at 170. During the execution of the warrant, methamphetamine precursors and evidence of previous manufacturing were recovered. Id. Eckelbarger was charged and convicted of two Counts of dealing methamphetamine by delivery, one Count of dealing methamphetamine by manufacture, and one Count of possession of precursors. Id. The two delivery Counts were to be served concurrent to each other, and consecutive to the manufacturing and possession Counts, which were in turn to be served concurrent to each other. Id. Our supreme court noted that "consecutive sentences are not appropriate when the State sponsors a series of...