Perry v. State

• Court: Indiana Appellate Court
• Writing for the Court: LOWDERMILK; LYBROOK, P. J., and ROBERTSON
• Citation: Perry v. State, 379 N.E.2d 531, 177 Ind.App. 334 (Ind. App. 1978)
• Decision Date: 22 August 1978
• Docket Number: No. 1-478A93,1-478A93
• Parties: Terry PERRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

Page 531

379 N.E.2d 531

177 Ind.App. 334

Terry PERRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-478A93.

Court of Appeals of Indiana, First District.

Aug. 22, 1978.

B. William Keithley, Yvonne F. Watkins, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

Defendant-appellant Terry Perry appeals after a jury found him guilty of four counts of attempted forgery, ¹ four counts of attempted possession of a controlled substance, ² and one count of being a habitual offender. ³

FACTS

Terry Perry provided a forged prescription and persuaded Deanna Parker and Suella Douglas to present the prescription at various pharmacies. Deanna Parker unsuccessfully attempted to have the prescription filled at Baxter's Drugstore in Covington, at Hook's Drugstore in Covington, and at Baxter's Drugstore in Veedersburg. Police arrested Suella Douglas when she presented the prescription at the Hook's Drugstore in Attica.

A jury found Terry Perry guilty of four counts of attempted forgery, four counts of attempted possession of a controlled substance, and one count of being a habitual offender. ⁴ The trial court imposed consecutive sentences which total fifty-eight years.

Terry Perry elects on appeal to rely upon only one of the twelve specifications of error contained in his motion to correct errors. That specification reads as follows:

"12. The determination by the Court that sentence for all eight (8) counts charged were required to be served consecutively is an improper interpretation of IC 35-50-1-2. Insofar as the eight (8) counts charged herein constitute one (1) transaction, the Judge would have had discretion to cause all sentences for all of said transactions to be served concurrently, all of which should be consecutive to the sentence, if any, remaining to be served on the charge for which the defendant was at the time these offenses were committed, on parole. Insofar as this case involved one continuing transaction on the date of October 29, 1977, for the purpose of consecutive and concurrent terms, it should be treated as one (1) crime and the various sentences for the various counts of that crime should be served concurrently. . . ."

ISSUE

Terry Perry frames the following issue for exploration:

"Can a court constitutionally impose upon a convicted defendant that he serve consecutive terms of imprisonment upon being found guilty of eight counts in a single Information where each such count identifies a single spacial or temporal unit in a single criminal enterprise?"

CONTENTIONS

Terry Perry contends that the four counts of attempted forgery and four counts of attempted possession of a controlled substance are all based upon a single criminal intent to obtain a controlled substance by use of a forged prescription. He argues that the singular criminal intent is proved by two facts: only one forged prescription form was used; any pharmacist who might have filled the prescription would have retained the prescription form and made it impossible to have the prescription filled four times. Perry insists that the multiple convictions based upon a singular criminal transaction violate his constitutional right to be free from double jeopardy.

The State answers Perry's argument by insisting that the convictions are based upon deeds independently identifiable; therefore, no double jeopardy problem exists.

DISCUSSION AND DECISION

IC 1971, 35-48-4-7 (Burns Supp. 1977) provides "A person who, without a valid prescription or order of a practitioner acting in the course of his professional practice, knowingly or intentionally possesses a controlled substance classified in schedule I, II, III, IV, or V, except marijuana or hashish, commits possession of a controlled substance, a class D felony."

IC 1971, 35-41-5-1 (Burns Supp. 1977) provides:

"(a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a class A felony.

(b) It is no defense that, because of a misapprehension of the circumstances, it would have been impossible for the accused person to commit the crime attempted."

The first statute set forth above implements a policy decision that persons should not have possession of certain controlled substances unless a practitioner deems it necessary for a particular person to have access to the particular controlled substance.

The second statute set forth above implements a policy decision that the failure to accomplish a crime does not necessarily dictate that conduct should go unpunished when the conduct evinces an intent to commit a crime; by punishing the attempt, the criminal law serves as a tool of deterrence.

The evidence shows that Perry had the intent to obtain possession of a controlled substance by use of a forged prescription. Deanna Parker and Suella Douglas visited four different drugstores in Perry's behalf in an effort to execute the deed intended. To approve four convictions for attempted possession of a controlled substance, based upon this set of facts, would not promote the policies represented by the relevant statutes. One conviction punishes Perry for his criminal intent and the subsequent efforts to fulfill that intent. The three additional convictions only punish Perry for persistence; our criminal code does not make persistence a criminal act Per se.

We emphasize that our statements herein must be read with due regard for the specific facts. This case does not involve an impossibility unknown to Perry, such as paragraph (b) of IC 1971, 35-41-5-1, Supra, addresses. This case does not involve an act which could have been repeated without forming an additional criminal intent. ⁵ Perry had only one prescription; if the prescription had been filled, the pharmacist would have retained the form. We hold that the evidence supports only one conviction for attempted possession of a controlled substance.

IC 1971, 35-43-5-2 (Burns Supp. 1977) provides:

"A person who, with intent to defraud, makes or utters a written instrument in such a manner that it purports to have been made:

(1) By another person;

(2) At another time;

(3) With different provisions; or

(4) By authority of one who did not give authority; commits forgery, a class C felony."

IC 1971, 35-41-1-2 (Burns Supp. 1977) defines "utter": "to issue, authenticate, transfer, publish, deliver, sell, transmit, present, or use."

The evidence warrants a finding that Deanna Parker and Suella Douglas, acting on behalf of Terry Perry, did present the forged prescription to pharmacists at four different drugstores. In presenting the forged instrument, they committed forgery attributable to Terry Perry pursuant to IC 1971, 35-41-2-4 (Burns Supp. 1977).

Perry has raised no issue concerning the propriety of his convictions for attempted forgery when the State proved that his attempts were successful. ⁶ We affirm the four convictions for attempted forgery. ⁷

IC 1971, 35-50-1-2 (Burns Supp. 1977) provides:

(a) Except as provided in subsection (b) of this section, the court shall determine whether terms of imprisonment shall be served concurrently or consecutively.

(b) If a person commits a crime:

(1) After having been arrested for another crime; and

(2) Before the date he is discharged from probation, parole, or a term of imprisonment imposed for that other crime; the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed."

The trial court's view of its obligations in sentencing Perry is shown in the order book entry:

". . . Sentencing hearing is now conducted and The Court after hearing argument Does now find that the Court must order the...