Cross v. State

• Decision Date: 06 November 2013
• Docket Number: No. 73A01–1303–CR–134.,73A01–1303–CR–134.
• Citation: 997 N.E.2d 1125
• Parties: Christopher CROSS, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff.
• Court: Indiana Appellate Court

997 N.E.2d 1125

Christopher CROSS, Appellant/Defendant,

v.STATE of Indiana, Appellee/Plaintiff.

No. 73A01–1303–CR–134.

Court of Appeals of Indiana.

Nov. 6, 2013.

Background: After petitioner's convictions for Class A felony dealing in cocaine, Class A felony possession of cocaine, Class A misdemeanor carrying handgun without permit, and Class C felony carrying handgun without permit after felony conviction were affirmed, 2008 WL 2673228, petitioner filed post-conviction relief petition and request for resentencing. The Superior Court, Shelby County, Jack A. Tandy, J., granted petition and sentenced petitioner to enhanced aggregate term. Petitioner appealed.

Holdings: The Court of Appeals, Bradford, J., held that:

(1) classification of act was not disproportionate to nature of offense;

(2) variance between language in charging instrument and proof at trial was not fatal;

(3) evidence was sufficient to establish that petitioner used handgun during commission of offense;

(4) conviction and sentence enhancement did not violate double jeopardy; and

(5) misdemeanor conviction was lesser-included offense of felony conviction.

Affirmed in part, reversed in part, and remanded with instructions.Joel M. Schumm, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

CASE SUMMARY

In August of 2006, Appellant–Defendant Christopher Cross engaged in the sale of cocaine in Shelby County. As a result of his actions, he was convicted of Class A felony dealing in cocaine, Class A felony possession of cocaine, Class D felony maintaininga common nuisance, Class A misdemeanor resisting law enforcement, Class A misdemeanor carrying a handgun without a permit, and Class C felony carrying a handgun without a permit after felony conviction. Cross was also found to have committed the acts necessary to warrant a sentence enhancement for using a firearm during the commission of a controlled substance offense, and was found to be a habitual offender. Cross was sentenced to an aggregate term of fifty years. Cross's convictions and sentence were affirmed on direct appeal.

On January 31, 2013, Cross and Appellee–Plaintiff the State of Indiana filed a joint petition for post-conviction relief and request for resentencing. The joint petition was granted and, following resentencing, Cross was sentenced to an aggregate term of thirty-eight years. On appeal, Cross contends that the classification of his acts of dealing in cocaine and possession of cocaine as Class A felonies was disproportionate to the nature of his offenses and that he suffered certain double jeopardy violations. We affirm in part, reverse in part, and remand to the trial court with instructions.

FACTS AND PROCEDURAL HISTORY

This court's opinion in Cross's prior direct appeal, which was handed down on July 9, 2008, instructs us as to the underlying facts leading to this subsequent direct appeal following resentencing:

In August 2006, Larry Sizemore assisted the Shelbyville Police Department by setting up a drug transaction involving Sizemore, Cross, and John Mellentine. Sizemore attempted to call Cross, from whom he had bought drugs in the past. When Sizemore reached Cross'[s] voice mail, Sizemore called Mellentine, who told Sizemore he could reach Cross. Mellentine telephoned Cross and told him that Sizemore wanted to purchase $200.00 worth of cocaine.

Cross and Mellentine drove to Sizemore's Shelbyville hotel room. Shelbyville Police Department Officer Bart Smith was parked down the street at [a youth center], which was about 120 feet from the hotel. When Cross and Mellentine arrived at the hotel, Officer Smith radioed the officers that were hiding in Sizemore's hotel bathroom. When Cross pulled a bag of cocaine out of his pocket, the police entered the room and yelled, “Police. Down.” Tr. at 120.

Cross reached for his waistband, which led Officer Ed Hadley to believe that Cross was reaching for a weapon. Officer Hadley tackled Cross, and the two men fell on the floor. Cross continued to struggle with the officer and reach for his waistband. After subduing Cross, Officer Hadley felt a gun slide down Cross'[s] leg. A subsequent search of Cross revealed the gun and three grams of cocaine. The State charged Cross with multiple counts. Following a bench trial, the court convicted Cross of all counts and adjudicated him to be an habitual substance offender as well as an habitual offender.

Following the sentencing hearing, the trial court “adopted” the following aggravating circumstances set forth in the presentence report: 1) Cross has a history of criminal behavior; 2) Cross is in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility; and 3) Cross threatened the life of a witness/co-defendant by means of a letter. Appellant's App. at 46. The court found no mitigating factors, and sentenced Cross to 1) thirty years for dealing in cocaine, 2) thirty years for possession of cocaine, 3) three years for maintaining a common nuisance, 4) one year for resisting law enforcement, and 5) eight years for carrying a handgun without a permit with a prior felony conviction, all sentences to run concurrently. The court enhanced Cross'[s] thirty-year sentence by twenty years for his habitual offender adjudication, for a total sentence of fifty years.

Cross v. State, 73A01–0709–CR–427 *1, 2008 WL 2673228 (Ind.Ct.App. July 9, 2008). On appeal, this court concluded that the evidence was sufficient to sustain Cross's convictions and that the trial court did not err in sentencing Cross. Id. at *2–3.

On January 31, 2013, the State and Cross filed a joint petition for post-conviction relief and request to set the matter for resentencing. In this joint motion, the parties requested the trial court to vacate the habitual offender enhancement. The trial court granted the parties' joint petition and, after a sentencing hearing held on March 1, 2013, resentenced Cross to an aggregate thirty-eight year sentence.

DISCUSSION AND DECISION

On appeal, Cross contends that the classification of his acts of possessing more than three grams of cocaine within 1000 feet of a youth program center with the intent to deliver as Class A felonies was disproportionate to the nature of his offenses. Cross also contends that he suffered certain double jeopardy violations.

I. Proportionality of Class A Felony Classification

Cross contends that the classification of his convictions for dealing in cocaine and possession of cocaine as a Class A felonies was disproportionate to the nature of his offenses. “Article I, Section 16, of the Indiana Constitution requires that ‘[a]ll penalties shall be proportioned to the nature of the offense.’ ” State v. Moss–Dwyer, 686 N.E.2d 109, 111 (Ind.1997) (brackets in original). In cases such as the instant matter, where the statutory punishment of a single crime is alleged to be constitutionally disproportionate, our analysis is relatively straightforward. Id. (citing Conner v. State, 626 N.E.2d 803, 806 (Ind.1993)).

Indiana courts have consistently supported the proposition that “[t]he nature and extent of penal sanctions are primarily legislative considerations....” Person v. State, 661 N.E.2d 587, 593 (Ind.App.1996), trans. denied. Our separation of powers doctrine requires we take a highly restrained approach when reviewing legislative prescriptions of punishments. While legislative decisions do not completely escape review, “judicial review of a legislatively sanctioned penalty is very deferential.” Person, 661 N.E.2d at 593 (citing Conner, 626 N.E.2d at 806). We will not disturb the legislative determination of the appropriate penalty for criminal behavior except upon a showing of clear constitutional infirmity. [Steelman v. State, 602 N.E.2d 152, 160 (Ind.Ct.App.1992) ]. As the court stated in Person, “When considering the constitutionality of a statute, we begin with the presumption of constitutional validity, and therefore the party challenging the statute labors under a heavy burden to show that the statute is unconstitutional.” 661 N.E.2d at 592 (citing Jackson v. State, 634 N.E.2d 532, 535 (Ind.App.1994)). A court is not at liberty to set aside the legislative determination as to the appropriate penalty merely because it seems too severe. Conner, 626 N.E.2d at 806;Clark v. State, 561 N.E.2d 759 (Ind.1990).

Id. at 111–12.

In adopting Indiana Code section 35–48–4–1(a), the General Assembly decreed that a person who knowingly or intentionally possesses cocaine with the intent to deliver commits dealing in cocaine, a Class B felony. However, the offense is a Class A felony if the amount of the drug involved exceeds three grams or the person delivered the drug in, on, or within 1000 feet of a school property, a public park, a family housing complex, or a youth program center. Ind.Code § 35–48–4–1(b). Here, the State alleged and the evidence presented during trial proved that Cross possessed, with the intent to deliver, more than three grams of cocaine within 1000 feet of a youth program center.

In raising the contention that the Class A felony classification for his act of possessing more than three grams of cocaine within 1000 feet of a youth program center with the intent to deal was disproportionate, Cross argues that the crimes of dealing in cocaine and possession of cocaine should not be classified as Class A felonies because the offenses lack the serious physical harm that is inherent in other Class A felony offenses. We disagree.

The Indiana Supreme Court has previously upheld the constitutionality of the “school-zone enhancement,” concluding that “the ‘violent and dangerous criminal milieu’ created by drug dealing and possession is a sufficient rationale to render [the enhancement] constitutional.” Polk v. State, 683 N.E.2d 567, 571 (Ind.1997) (quoting Reynolds/Herr v....