Carlson v. State

• Decision Date: 31 August 1999
• Docket Number: No. 46A03-9804-CR-197.,46A03-9804-CR-197.
• Citation: 716 N.E.2d 469
• Parties: Kenneth E. CARLSON, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

716 N.E.2d 469

Kenneth E. CARLSON, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 46A03-9804-CR-197.

Court of Appeals of Indiana.

August 31, 1999.

Donald W. Pagos, Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, Michigan City, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy

Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

SULLIVAN, Judge

Appellant Kenneth E. Carlson (Carlson) challenges the sentence for his conviction of Dealing in Cocaine, a Class B felony.¹

We reverse and remand.

Carlson claims that the trial court improperly cited the following three aggravating factors in imposing his sentence.

(1) Evidence of the amount of cocaine possessed by Carlson, where defendant pleaded guilty to a lesser included offense and the amount of cocaine was the distinguishing element of the greater offense.

(2) Evidence that Carlson was convicted of a misdemeanor, cocaine-related offense ten years prior to his sentencing in the instant case; and

(3) Recitation, without supporting facts, of the statutory aggravating factor that defendant needed correctional or rehabilitative treatment that could best be provided by commitment to a penal facility.

On February 27, 1995, the State filed a two count information against Carlson, charging him with Possession of Cocaine, a Class C felony,² and Possession of Paraphernalia, a Class A misdemeanor.³ Nine months later, on November 27, 1995, the State moved to allow filing of an amended information, charging Carlson with two counts of Dealing in Cocaine. Count I was charged as a Class A felony,⁴ alleging possession with intent to deliver cocaine, and Count II was charged as a Class B felony alleging actual delivery. The trial court granted the State's motion to file the amended information on March 25, 1996.

A Statement of Plea Agreement was filed with the trial court on January 12, 1998. Carlson agreed to plead guilty to the included offense in Count I of Possession with Intent to Deliver Cocaine as a Class B felony. The parties agreed to argue the sentencing, but the plea agreement contained a cap limiting the sentence to no more than fifteen years of imprisonment. Upon Carlson's sentencing upon Count I, Count II was to be dismissed. The trial court accepted the plea agreement and an argued sentencing hearing was scheduled.⁵ The hearing was conducted on February 26, 1998, and the court took the matter under advisement.

A final sentencing hearing was held on March 16, 1998. On that date, the trial court entered its sentencing order finding Carlson guilty of Dealing in Cocaine as a Class B felony. Carlson was sentenced to twelve years of incarceration, with two years suspended. Further, the trial court ordered that the defendant be placed on probation for two years upon completion of his executed sentence.

In making its decision, the trial court found the following aggravating circumstances:

"1. Circumstances of the crime. The Defendant had 33½ grams of pure cocaine in his possession with a street value of more than $100.00 per gram. He also possessed a cutting agent used to cut pure cocaine, a grinder, screens and a scale. These are all facts indicative of dealing in cocaine and delivery to more than just friends.

2. The Defendant has been previously convicted of Possession of Cocaine in 1987 in LaPorte Superior Court # 3. At that time the Defendant was given a one year suspended sentence and placed on probation. A probation revocation was filed in that matter because the Defendant tested positive for cocaine within three months after having been placed on probation. The first court proceeding made little or no impact on the Defendant as evidenced by this proceeding.

3. The Defendant is in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility. As previously indicated, the Defendant was convicted of a prior drug related charge and that matter has had little or no impact on the Defendant and his involvement with illegal drugs."

Record at 381.⁶ The court cited three mitigating circumstances as well but concluded that they were outweighed by the aggravating circumstances.⁷

Sentencing of a defendant is left to the sound discretion of the trial court and will be reversed only upon a showing of a manifest abuse of that discretion. Utley v. State (1998) Ind.App., 699 N.E.2d 723, 729, trans. denied. Moreover, it is within the trial court's discretion to determine whether a sentence should be enhanced or decreased due to aggravating or mitigating circumstances. Anderson v. State (1998) Ind.App., 695 N.E.2d 156, 158. In Crawley v. State (1997) Ind., 677 N.E.2d 520, 521-22 (citations omitted), our Supreme Court noted:

"Indiana Code Section 35-38-1-3 requires that, if the trial court imposes a sentence based upon aggravating or mitigating circumstances, its record must include a statement of the court's reasons for the sentence. In order to explain the reasoning and logic underlying its sentence, a sentencing statement should (a) identify all significant mitigating and aggravating circumstances found, (b) specify the facts and reasons which lead the court to find the existence of each circumstance, and (c) demonstrate that the mitigating and aggravating circumstances have been evaluated and balanced in determining the sentence."

Improper use of an aggravator will not necessarily invalidate a sentence where other valid aggravating circumstances are found. Angle v. State (1998) Ind.App., 698 N.E.2d 356, 361.

I. Cocaine Evidence

Carlson asserts that the trial court improperly considered as an aggravating factor circumstances of the charge of Dealing in Cocaine as a Class A felony, because such charge was dismissed pursuant to the plea agreement. While it was Count II which was dismissed and Carlson pleaded guilty to the included offense of Count I, we agree that the trial court should not have considered evidence of the large amount of cocaine which police found in the defendant's possession and which would have justified a Class A felony conviction. Conwell v. State (1989) Ind.App., 542 N.E.2d 1024 guides our decision. In Conwell, the defendant was charged with Burglary, a Class B felony. He was thereafter sentenced to eight years of imprisonment upon pleading guilty to Burglary, a Class C felony. The presumptive sentence for a Class C felony was five years, with up to three years added for aggravating circumstances. The trial court had noted the mitigating circumstance that the defendant lacked a prior criminal record. As an aggravating circumstance, the trial court pointed out that the defendant had broken into someone's home.

Upon appeal, the defendant in Conwell claimed that the trial court could not properly use the fact that he had broken into a dwelling as an aggravating circumstance. The burglary statute provided, "[a] person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is a Class B felony ... if the building or structure is a dwelling." I.C. XX-XX-X-X (Burns Code Ed. Repl.1998). In vacating the defendant's sentence, we ruled:

"[W]hen a defendant pleads guilty to an included offense, the element(s) distinguishing it from the greater offense— here, that the building or structure was a dwelling—may not be used as an aggravating circumstance to enhance the sentence. The trial court is entitled to refuse to accept the plea to the included offense, but it may not attempt to sentence as if the defendant had pled to the greater offense by using the distinguishing element(s) as an aggravating factor."

Conwell, supra, 542 N.E.2d at 1025 (relying upon Hammons v. State (1986) Ind., 493 N.E.2d 1250, opinion on denial of rehearing, 496 N.E.2d 1284). We further found invalid the trial court's conclusion that the mitigating circumstance was outweighed by the improper aggravating circumstance, concluding that "resentencing is mandated." Id. at 1026; see also Miller v. State (1999) Ind.App., 709 N.E.2d 48, 50 (determining that trial court improperly considered as aggravating factors facts surrounding defendant's subsequent arrest, where charges related thereto had been dismissed pursuant to a plea agreement and where the facts involved in the subsequent arrest had neither been proved nor admitted by defendant).

In the instant case, the trial court cites as an aggravating factor the fact that Carlson possessed thirty-three and one-half grams of pure cocaine at the time of his arrest. Dealing in three grams or more of cocaine is an element of Dealing in Cocaine, a Class A felony.⁸ The State and Carlson agreed that the defendant would only plea guilty to the included offense. We find that, pursuant to Conwell, supra, the distinguishing element, i.e. the amount of cocaine in Carlson's possession equaling three grams or more, could not be properly used as an aggravating factor with which to enhance the defendant's sentence. The trial court was not obligated to accept his guilty plea. It could not circumvent the plea agreement by sentencing defendant using the distinguishing element as an aggravator.⁹ Thus, we conclude that the trial court erred in considering as an aggravator evidence of the amount of cocaine possessed by Carlson at the time of his arrest.¹⁰

II. Prior Misdemeanor Conviction

Carlson contends that the trial court improperly considered his conviction in 1987 for Possession of Cocaine, a Class A misdemeanor, as an aggravating circumstance. We initially note that I.C. XX-XX-X-X.1(b)(2) (Burns Code Ed. Repl.1998) allows the trial court to consider as an aggravator that "[t]he person has a history of criminal or delinquent activity." "This language does not limit the court's consideration to prior felony convictions but allows courts to consider misdemeanors and other prior criminal activity which has...