Walton v. State
| Decision Date | 04 August 2017 |
| Docket Number | Court of Appeals Case No. 79A04-1604-CR-768 |
| Parties | Arrion WALTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellant : Timothy P. Broden, Lafayette, Indiana
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, Indiana
[1] Indiana Code section 35-47-4-5 provides that "[a] serious violent felon who possesses a firearm commits unlawful possession of a firearm by a serious violent felon" ("SVF"). In Taylor v. State , 929 N.E.2d 912 (Ind. Ct. App. 2010), trans. denied , we held that our General Assembly's use of the singular phrase "possesses a firearm" means that a serious violent felon who possesses more than one firearm has committed more than one offense. Consistent with that holding, Arrion Walton was convicted of multiple counts of SVF (along with various drug crimes) after being found in possession of multiple firearms. Today we reaffirm Taylor and uphold Walton's SVF convictions. However, we find that Walton's sixty-four-year sentence is inappropriate, and we remand this matter to the trial court for imposition of a sentence of forty-two years.
[2] On five days in early 2015—January 30, February 2, April 8, April 23, and May 8—the Tippecanoe County Drug Task Force used a confidential informant to purchase cocaine from Walton. Then, on May 11, the police conducted searches at two apartments Walton was renting on two different floors of the same building. In the downstairs apartment, in which Walton was residing, officers found cocaine and a Bersa handgun. In the upstairs apartment, officers found additional cocaine, a Ruger handgun, and a Phoenix Arms handgun.
[3] With regard to the five controlled cocaine buys, the State charged Walton with five counts of dealing in cocaine: one Level 2 felony for the April 23 transaction, three Level 3 felonies, and one Level 4 felony. The State also charged him with the lesser-included offense of possession of cocaine as to each of the five buys. Furthermore, in relation to the search on May 11, the State charged Walton with six additional counts: Level 2 felony dealing in cocaine—possession with intent to deliver (based on the cocaine found in the downstairs apartment), Level 3 felony possession of cocaine (based on the cocaine found in the upstairs apartment), Level 2 felony conspiracy to commit dealing in cocaine, Level 6 felony maintaining a common nuisance, and two counts of Level 4 felony unlawful possession of a firearm by a serious violent felon ("SVF") (one based on the Bersa found in the downstairs apartment and one based on the Ruger and the Phoenix Arms found in the upstairs apartment). In addition, the State accused Walton of being a habitual offender based on his prior felony convictions.
[4] Walton was found guilty of all the charges listed above and was found to be a habitual offender. In sentencing Walton, the trial court distinguished the convictions relating to the controlled buys from the convictions relating to the search on May 11. Regarding the charges arising from the five controlled buys, the trial court merged the possession counts into the dealing counts and entered convictions and sentences on the dealing counts only. On the most serious dealing count, the Level 2 felony (Count IX), the trial court imposed a sentence of twenty-four years, enhanced by ten years based on the habitual-offender finding, for a total of thirty-four years. The court imposed shorter sentences for the other four dealing convictions and ordered them to run concurrently with the thirty-four-year sentence for the Level 2 felony.1
[5] As for the convictions arising from the search, the trial court imposed sentences of twenty-four years for dealing in cocaine—possession with intent to deliver, thirteen years for possession of cocaine, twenty-four years for conspiracy to commit dealing in cocaine, two years for maintaining a common nuisance, and eight years for each SVF count. However, the court also found that these six offenses constituted an "episode of criminal conduct" subject to a maximum total sentence of thirty years under Indiana Code section 35-50-1-2(c), and it sentenced Walton accordingly. The trial court then ordered that thirty-year sentence to run consecutive to the thirty-four-year sentence for the controlled buys, for a total sentence of sixty-four years.
[6] Walton now appeals.
[7] Walton contends that his two SVF convictions constitute double jeopardy under Article 1, Section 14 of the Indiana Constitution and that his sentence is inappropriate.
[8] Walton's first argument is that his two SVF convictions fail the actual-evidence test under the double-jeopardy clause of the Indiana Constitution. "Under the actual-evidence test, we examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts." Frazier v. State , 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013). "To find a double-jeopardy violation under this test, we must conclude that there is ‘a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.’ " Id . (quoting Richardson v. State , 717 N.E.2d 32, 53 (Ind. 1999) ). Here, the first SVF count was specifically based on the handgun found in the downstairs apartment, and the second count was specifically based on the handguns found in the upstairs apartment, and Walton gives us no reason to believe that he was actually convicted of the two counts based on the same evidence, i.e., the same gun. Therefore, Walton's double-jeopardy claim fails.
[9] The dissent addresses an issue that Walton has not raised: whether multiple SVF convictions based on the simultaneous possession of multiple firearms are ever permissible under the SVF statute, Indiana Code section 35-47-4-5. The statute provides, in pertinent part, "A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Level 4 felony." Ind. Code § 35-47-4-5(c). In Taylor v. State , we held that the General Assembly's use of the singular "possesses a firearm" reflects its intent to allow a separate conviction for each firearm a serious violent felon possesses. 929 N.E.2d 912, 921 (Ind. Ct. App. 2010), trans. denied ; see also Daugherty v. State , 52 N.E.3d 885, 892 (Ind. Ct. App. 2016) (), trans. denied . The dissent concludes that Taylor was wrongly decided. We disagree.
[10] If our legislature had intended to allow only a single possession conviction regardless of the number of firearms possessed, it could have used the phrase "possesses one or more firearms," see State v. Stratton , 132 N.H. 451, 567 A.2d 986, 989 (1989), or "possesses any firearm," see, e.g., United States v. Valentine , 706 F.2d 282, 292-94 (10th Cir. 1983), instead of "possesses a firearm." It has thus far chosen not to do so. We also note that our interpretation of section 35-47-4-5(c) in Taylor is consistent with the way courts around the country have interpreted similar statutes. See, e.g., State v. Kidd , 562 N.W.2d 764, 765-66 (Iowa 1997) (collecting cases); Stratton , 567 A.2d at 989 ; State v. Gutierrez , 240 Ariz. 460, 381 P.3d 254, 260 (Ariz. Ct. App. 2016) (collecting cases, including Taylor ), rev. denied ; State v. Lindsey , 583 So.2d 1200, 1203-04 (La. Ct. App. 1991), writ denied . For these reasons and the other reasons stated in Taylor , Walton's SVF convictions are permissible under the language of the SVF statute.
[11] While we reject Walton's challenge to his SVF convictions, we find, sua sponte, that one of his other convictions must be vacated to avoid a double-jeopardy violation. In relation to the search on May 11, Walton was convicted of one count of dealing in cocaine—possession with intent to deliver, based on the cocaine found in the downstairs apartment (Count XIII), and a separate count of possession of cocaine, based on the cocaine found in the upstairs apartment (Count XIV). However, this Court has held that a defendant cannot be convicted of two counts of drug possession (including possession with intent to deliver) based on two quantities of drugs simultaneously possessed in two closely related locations. Donnegan v. State , 809 N.E.2d 966, 974-75 (Ind. Ct. App. 2004) (), trans. denied ; see also Campbell v. State , 734 N.E.2d 248, 250-51 (Ind. Ct. App. 2000) (); Young v. State , 564 N.E.2d 968, 972 (Ind. Ct. App. 1991) (), aff'd on reh'g, trans. denied . Therefore, we must remand this matter to the trial court with instructions to vacate the judgment of conviction and the sentence on Count XIV.
[12] Walton also asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B), which provides that an appellate court "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Because we generally defer to the judgment of trial courts in sentencing matters, defendants have the burden of persuading us that their sentences are inappropriate. Schaaf v. State , 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016). "Whether a sentence is inappropriate ultimately turns on the culpability of the...
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... ... Id.[11] The next year, we applied these precedents on a slightly different variation of the facts. In Walton v. State , 81 N.E.3d 679, 680 (Ind. Ct. App. 2017), we analyzed the situation where the State conducted a series of controlled buys over several months in 2015. After concluding the controlled buys but before Walton was charged for his conduct, the State obtained a search warrant for Walton's ... ...