Maynard v. State, No. 3-276A34

Docket NºNo. 3-276A34
Citation174 Ind.App. 202, 367 N.E.2d 5
Case DateSeptember 07, 1977
CourtCourt of Appeals of Indiana

Page 5

367 N.E.2d 5
174 Ind.App. 202
Darrell A. MAYNARD, Appellant,
v.
STATE of Indiana, Appellee.
No. 3-276A34.
Court of Appeals of Indiana, Third District.
Sept. 7, 1977.

[174 Ind.App. 203]

Page 6

A. Martin Katz, Katz & Brenman, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

The trial court found Darrell A. Maynard guilty of Delivery of a Controlled Substance. 1 Pursuant to the Minor Sentencing Act, 2 Maynard was sentenced to the care, custody and control of the Superintendent of the Indiana Diagnostic Center for a period of not less than one (1) nor more than ten (10) years. In his appeal to this Court, Maynard raises the following issues:

(1) Was he entrapped?

(2) Was the trial court correct in its determination of the applicable sentencing statute?

We affirm the conviction of Maynard and remand for sentencing under the appropriate statute.

I.

Entrapment

William Michalek, a police officer, and a confidential informant went to Maynard's house trailer to purchase marijuana. When Maynard asked Michalek how much he wanted, he replied that he would like to buy a "lid" or ounce. Maynard told him that this amount would cost twenty-five dollars. Michalek gave Maynard the twenty-five dollars. Maynard left the trailer immediately to obtain the marijuana. After an elapse of forty-five minutes, Maynard returned to the trailer with a plastic bag containing one ounce of marijuana.

[174 Ind.App. 204] Michalek asked if Maynard could obtain marijuana regularly and Maynard replied that he could. Michalek further inquired as to whether Maynard could obtain larger quantities, to which Maynard responded affirmatively and asked how much Michalek wanted. Michalek indicated he was interested in a pound and asked what the price would be. Maynard said that a pound would cost $225. Maynard testified at trial that he had obtained marijuana for the confidential informant on at least one occasion prior to the August 7 transaction.

Maynard's first contention is that the State failed to meet its burden of proving that it had probable cause to suspect him of trafficking in narcotics prior to the August 7 transaction. Probable cause to suspect the accused in an entrapment case was formerly required in Indiana as a protection against potential overreaching by law enforcement officials. Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641. However, in Hardin v. State (1976), Ind., 358 N.E.2d 134, our Supreme Court overruled Walker to the extent that it required proof of probable cause to suspect in an entrapment case. This Court then applied the new rule enunciated in Hardin retroactively in Davila v. State (1977), Ind.App., 360 N.E.2d 283. The retroactive application of Hardin eliminates any need for further...

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22 practice notes
  • Com. v. Weiskerger
    • United States
    • United States State Supreme Court of Pennsylvania
    • 30 Enero 1989
    ...Ga.App. 405, 280 S.E.2d 427 (1981); People v. Thornton, 125 Ill.App.3d 316, 80 Ill.Dec. 703, 465 N.E.2d 1049 (1984); Maynard v. State, 174 Ind.App. 202, 367 N.E.2d 5 (1977); State v. Batiste, 363 So.2d 639 (La.1978); Comm. v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (1969); Simmons v. State, ......
  • Wilkins v. State, No. 3-181A13
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Septiembre 1981
    ...beyond a reasonable doubt. Fundamental due process of law does not permit this burden to be shifted to the defendant." Underwood, supra, 367 N.E.2d at 5. Nine days after Underwood was decided, the Supreme Court, in a rather disjointed collection of three concurring opinions, determined that......
  • Lewandowski v. State, No. 579S130
    • United States
    • Indiana Supreme Court of Indiana
    • 17 Mayo 1979
    ...with respect to each count was less than 30 grams. Under identical facts, the Court of Appeals in Maynard v. State, (1977) Ind.App., 367 N.E.2d 5, held that Maynard should have been sentenced under the amended statute. In so doing, it applied the logic of dicta from its earlier case of Dowd......
  • Townsend v. State, No. 2-479A110
    • United States
    • Indiana Court of Appeals of Indiana
    • 13 Abril 1981
    ...it may be raised. See also Stayton v. State (1st Dist.1980) Ind.App., 400 N.E.2d 784, 786, 787; Maynard v. State (3d Dist.1977) Ind.App., 367 N.E.2d 5, 7. The most recent Supreme Court decision, Williams v. State (1980) Ind., 412 N.E.2d 1211, is also inconclusive. Although it first appears ......
  • Request a trial to view additional results
22 cases
  • Com. v. Weiskerger
    • United States
    • United States State Supreme Court of Pennsylvania
    • 30 Enero 1989
    ...Ga.App. 405, 280 S.E.2d 427 (1981); People v. Thornton, 125 Ill.App.3d 316, 80 Ill.Dec. 703, 465 N.E.2d 1049 (1984); Maynard v. State, 174 Ind.App. 202, 367 N.E.2d 5 (1977); State v. Batiste, 363 So.2d 639 (La.1978); Comm. v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (1969); Simmons v. State, ......
  • Wilkins v. State, No. 3-181A13
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Septiembre 1981
    ...a reasonable doubt. Fundamental due process of law does not permit this burden to be shifted to the defendant." Underwood, supra, 367 N.E.2d at 5. Nine days after Underwood was decided, the Supreme Court, in a rather disjointed collection of three concurring opinions, determined that a......
  • Lewandowski v. State, No. 579S130
    • United States
    • Indiana Supreme Court of Indiana
    • 17 Mayo 1979
    ...with respect to each count was less than 30 grams. Under identical facts, the Court of Appeals in Maynard v. State, (1977) Ind.App., 367 N.E.2d 5, held that Maynard should have been sentenced under the amended statute. In so doing, it applied the logic of dicta from its earlier case of Dowd......
  • Townsend v. State, No. 2-479A110
    • United States
    • Indiana Court of Appeals of Indiana
    • 13 Abril 1981
    ...it may be raised. See also Stayton v. State (1st Dist.1980) Ind.App., 400 N.E.2d 784, 786, 787; Maynard v. State (3d Dist.1977) Ind.App., 367 N.E.2d 5, 7. The most recent Supreme Court decision, Williams v. State (1980) Ind., 412 N.E.2d 1211, is also inconclusive. Although it first appears ......
  • Request a trial to view additional results

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