Cannon v. State

Decision Date01 December 2005
Docket NumberNo. 49A05-0411-CR-622.,49A05-0411-CR-622.
Citation839 N.E.2d 185
PartiesEddie CANNON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Supreme Court

Kimberly A. Jackson, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Maureen Ann Bartolo, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Eddie Cannon appeals from his conviction for Operating a Motor Vehicle after License Forfeited for Life,1 a class C felony, and from the five-year sentence imposed by the trial court. In particular, Cannon contends that the trial court erred in: (1) admitting evidence of the police stop of Cannon in violation of the state and federal constitutions; and (2) sentencing him to an enhanced term of incarceration while impermissibly relying on ex parte communications with another judge, violating the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Finding that the trial court improperly relied on ex parte communications in imposing Cannon's sentence but that such error was harmless, and finding no other error, we affirm the judgment of the trial court.

FACTS2

On May 13, 2004, Indianapolis Police Officer Matthew Jennings was directing traffic at the entrance to the International School of Indiana on Michigan Road. The intersection did not have a traffic light, and the road was under construction. Consequently, Officer Jennings stood in the middle of the intersection, ordering vehicles traveling northbound and southbound to stop at intermittent times to allow drivers to enter and exit the school safely. The area was marked as a school zone.

Cannon was traveling southbound on Michigan Road when Officer Jennings put up his hand to signal to Cannon to stop. In the probable cause affidavit and in his direct testimony, Officer Jennings stated that he believed that Cannon was approximately 100 feet away from him when he ordered Cannon to stop. Officer Jennings clarified later on cross-examination that he believed that Cannon was approximately a football field's distance, or about 100 yards, away from him when he ordered Cannon to stop.

After Officer Jennings indicated to Cannon that he wanted the vehicle to come to a stop, Officer Jennings observed Cannon cross the double yellow line in the center of the road three times, nearly hitting a vehicle traveling northbound. Cannon's vehicle finally came to a "screeching halt" approximately fifteen feet from Officer Jennings. Tr. p. 7.

As Officer Jennings approached the vehicle, he observed Cannon attempt to hide a pint of gin between the vehicle's seats. The officer observed that Cannon had an odor of alcohol on his breath and person and that his speech was slurred. Accordingly, Officer Jennings ordered Cannon to proceed into the school parking lot for further investigation. Cannon complied, and as Officer Jennings approached Cannon's vehicle in the parking lot, the passenger of Cannon's vehicle threw the bottle of gin into a grassy area near the school. Officer Jennings asked Cannon to step out of his vehicle, noting that Cannon appeared unstable and that his passenger was unruly. The officer further noted that Cannon's eyes were glassy and bloodshot. Cannon refused a field sobriety test and blood, breath, and urine tests for intoxication. He was also belligerent and disruptive. Officer Jennings checked on the status of Cannon's driving privileges and discovered that his driver's license had been suspended for life.

On May 17, 2004, Cannon was charged with class C felony operating a motor vehicle after license forfeited for life, class A misdemeanor operating a motor vehicle while intoxicated, and class B misdemeanor public intoxication. A bench trial was held on September 23, 2004. Cannon moved to suppress the evidence acquired during the police stop, and the trial court denied his motion. The trial court found Cannon guilty of operating a motor vehicle after license forfeited for life and dismissed the remaining counts.

At Cannon's sentencing hearing on October 22, 2004, the trial court found the following mitigating circumstances: (1) Cannon's alcohol problem, and (2) the hardship on Cannon's wife if he were to be incarcerated. The trial court also found the following aggravating factors: (1) Cannon's criminal history, including a continued pattern of offenses involving operation of a motor vehicle, and (2) Cannon's need for rehabilitation provided by incarceration because he is likely to reoffend and because alternative programs have had no effect on his behavior. Specifically, the trial court detailed portions of Cannon's lengthy criminal history:

I am just going to highlight a few of the convictions I find. First, in 1971, Disorderly Conduct, False Display of an Automobile Certificate, and not having an operator's license; in July 1976, you were convicted of not having an operator's license. In March of 1978 you were convicted of resisting the police; in April 1978 you were convicted of [operating a vehicle while intoxicated]; in May 1978 you were convicted of disorderly conduct. In June of 1982 you were convicted of public intoxication. In June of 1984 you were convicted of disorderly conduct. In January of 1988 you were convicted of being a habitual traffic violator. In January of 1992 you were convicted of operating a motor vehicle after having your license forfeited for life as well as [operating a vehicle while intoxicated].... In December 1994 in Hamilton County you were convicted of the same offense of operating a motor vehicle after having your license forfeited for life.... In November of 1997 you were, again, convicted of the same offense, operating a motor vehicle after having your license forfeited for life... Then in March of 2003 you were convicted once again of operating a motor vehicle while having your license forfeited for life.

Tr. p. 46-47. As a result of the March 2003 conviction, Cannon was sentenced to a four-year home detention sentence in the HOCCS3 program. Tr. p. 45. He was still serving that sentence when he committed the offense at issue in this case. The trial court also made the following observation:

I am giving you the benefit of the doubt [regarding the existence of an alcohol problem], and I am also finding that the imposition of a sentence in the Department of Correction would constitute a hardship on your wife. I know she wants you back. I know she has made a fervent plea on your behalf, but I am noting the Court's own hand notes from the Court 6 case that indicates on 7/25/03 and this is a direct quote from the judge, Judge Barker, "If he messes up off to DOC. Can't use his wife's hardship again." The prior judge gave me notice that you would likely bring your wife in here to make the same plea in an effort to get leniency.

Tr. p. 48-49. The trial court imposed a five-year sentence on Cannon, which is one year greater than the advisory sentence for a class C felony.4 Cannon now appeals.

DISCUSSION AND DECISION

Cannon contends that the trial court erred in denying his motion to suppress the evidence gathered at the police stop, in considering the ex parte communication from another judge regarding a former case of Cannon's, and in imposing an enhanced sentence in violation of Blakely v. Washington.

I. Motion to Suppress

Cannon first contends that the trial court should have suppressed the evidence gathered at the police stop. As we consider this argument, we note that a trial court has broad discretion in ruling on the admissibility of evidence. Ransom v. State, 741 N.E.2d 419, 421 (Ind.Ct.App.2000), trans. denied. We will reverse a trial court's ruling on the admissibility of evidence only when the trial court abused its discretion. Id. We will neither reweigh the evidence nor judge the credibility of witnesses but will instead consider all uncontroverted evidence together with the conflicting evidence in a light most favorable to the trial court's ruling, together with uncontested evidence favorable to the defendant. Id.

A. Federal Constitution

Cannon contends that the warrantless police stop and the evidence gathered as a result of that stop violated the Fourth Amendment to the United States Constitution. The Fourth Amendment prohibits unreasonable searches and seizures by the government, and its safeguards extend to brief investigatory stops. Moultry v. State, 808 N.E.2d 168, 170 (Ind.Ct.App.2004) (citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). But a police officer may briefly detain a person for investigatory purposes without a warrant or probable cause if the stop is based upon specific and articulable facts together with rational inferences from those facts, the intrusion is reasonably warranted, and the officer has reasonable suspicion that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

When determining whether the officer had reasonable suspicion, we examine the totality of the circumstances to conclude whether the officer had a "particularized and objective basis" for suspecting legal wrongdoing. Arvizu, 534 U.S. at 273, 122 S.Ct. 744. The reasonable suspicion requirement is met where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe criminal activity has occurred or is about to occur. Moultry, 808 N.E.2d at 170.

Here, Cannon argues that the police stop was improper based upon inconsistencies in Officer Jennings's description of events. In the probable cause affidavit and during questioning by the State at trial, Officer Jennings testified that Cannon's vehicle was approximately 100 feet away from him when he held his hand up to inform Cannon to stop. After Cannon's attorney challenged Officer Jennings on...

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2 cases
  • Howard v. State, No. 79A02-0511-CR-1028 (Ind. App. 8/23/2006), 79A02-0511-CR-1028
    • United States
    • Court of Appeals of Indiana
    • August 23, 2006
    ...A single aggravating factor is sufficient to support the imposition of both an enhanced and consecutive sentence. Cannon v. State, 839 N.E.2d 185, 193 (Ind. Ct. App. 2005). In addition, Indiana Appellate Rule 7(B) gives us authority to review and revise sentences to ensure that they are app......
  • Cannon v. State
    • United States
    • Supreme Court of Indiana
    • May 22, 2007
    ...for life and was sentenced to five years in prison. The Court of Appeals affirmed the conviction and sentence. Cannon v. State, 839 N.E.2d 185 (Ind.Ct.App.2005). We grant transfer solely to address a claim about ex parte Background and Case History In 2003, in a case not on appeal here, Can......

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