Wash v. State
| Decision Date | 24 February 2021 |
| Docket Number | Court of Appeals Case No. 20A-CR-914 |
| Parties | Theodis Washington, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Bower Law Office, LLC
Salem, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
Appeal from the Washington Superior Court
The Honorable Frank Newkirk, Jr., Judge
The Honorable Sabrina R. Bell, Special Judge
[1] Following a jury trial, Theodis Washington was found guilty of dealing in a narcotic drug, a Level 3 felony; possession of a firearm by a serious violent felon, a Level 4 felony; four counts of possession of a controlled substance, all Level 6 felonies; possession of marijuana, a Class A misdemeanor; carrying a handgun without a license, a Class A misdemeanor; and was found to be an habitual offender. The trial court sentenced Washington to sixteen years for dealing in a narcotic drug enhanced by twenty years for being an habitual offender to be executed in the Indiana Department of Correction ("DOC") with two years suspended to probation.1 Washington now appeals, raising several issues which we restate as: (1) whether defects in the amended charging information for the Level 3 felony constituted fundamental error; (2) whether the trial court's jury instructions regarding the Level 3 felony constituted fundamental error; (3) whether the trial court erred in admitting certain evidence; (4) whether the trial court erred by failing to find a violation of Indiana Criminal Rule 4(C); and (5) whether Washington's executed sentence is inappropriate in light of the nature of his offense and his character.
[2] Concluding that the amended charging information did not constitute fundamental error; the jury instructions were not deficient; the trial court did not abuse its discretion by admitting certain evidence; Washington waived anyCriminal Rule 4(C) claim; and Washington's sentence was not inappropriate, we affirm.
[3] In April 2015, Indiana State Police Officer Nathan Teusch initiated a traffic stop on a Ford SUV for speeding. Jeremiah Underwood was driving the vehicle and Washington was the passenger. During the traffic stop, Officer Teusch detected the odor of burnt marijuana and during a preliminary search, he discovered Washington was carrying $4,161 in cash.
[4] Meanwhile, Washington County Sheriff's Department Deputy Joseph Keltner arrived on scene to provide assistance. Deputy Keltner and Officer Teusch then took inventory of the vehicle. During the search, they discovered a small plastic bag containing a white powdery substance believed to be heroin; an off-white powdery substance in aluminum foil believed to be heroin; five pink hydrocodone tablets and one white hydrocodone tablet; two green Oxycodone tablets; nine Suboxone packets; a plastic baggy with a green plant like material suspected to be marijuana; a firearm with a fully loaded magazine; one partially burnt hand-rolled cigarette containing suspected marijuana; and two cellphones. See Exhibits, Volume 5 at 4-22.2 The two white powderedsubstances were in fact heroin, weighing 1.19 and 1.36 grams, respectively. See Transcript, Volume 3 at 66.
[5] On May 4, 2015, the State charged Washington with possession of a narcotic drug, possession of marijuana, four counts of possession of a controlled substance, maintaining a common nuisance, carrying a handgun without a license, and unlawful possession of a firearm by a serious violent offender. The State also alleged that Washington was an habitual offender. Following Washington's initial hearing, his trial was set for September 15. However, on August 24, Washington filed a motion to continue and the trial was moved to January 20, 2016.
[6] On September 28, 2015, Washington entered into a plea agreement where he agreed to plead guilty to possession of a firearm by a serious violent felon as a Level 4 felony. In exchange, Washington was released from pretrial incarceration to be treated at Serenity House.3 However, Washington was subsequently discharged from Serenity House for selling heroin to another resident's girlfriend. Washington did not return to jail as he was ordered and was served a bench warrant and arrested in October 2016.
[7] On November 30, 2016, Washington filed a motion to withdraw his guilty plea. After a hearing, the trial court granted the motion and reset Washington's trial for March 21, 2017. In February 2017, the State filed a motion to amend thecharging information to change the possession of a narcotic drug charge, a Level 4 felony, to dealing in a narcotic drug, a Level 3 felony, and the four counts of possession of a controlled substance, Level 6 felonies, to dealing in a controlled substance, Level 5 felonies.
[8] After a series of continuances, Washington was tried beginning on March 3, 2020. After a three-day trial, the jury found Washington guilty of dealing in a narcotic drug, a Level 3 felony; possession of a firearm by a serious violent felon, a Level 4 felony; four counts of possession of a controlled substance, all Level 6 felonies, as lesser included offenses of dealing in a controlled substance; possession of marijuana, a Class A misdemeanor; carrying a handgun without a license, a Class A misdemeanor; and was found to be an habitual offender.
[9] At the sentencing hearing, the trial court found Washington's significant criminal history, his lack of remorse, substance abuse, and the fact he has never successfully completed probation to be aggravating factors. See Tr., Vol. 4 at 145-46. The trial court found no mitigating factors. See id. at 146. The trial court sentenced Washington to sixteen years for dealing in a narcotic drug enhanced by twenty years for being an habitual offender to be executed in the DOC with two years suspended to probation. The sentences for the remainder of Washington's convictions were to run concurrently with the dealing in a narcotic drug sentence.
[10] Washington now appeals. Additional facts will be provided as necessary.
[11] Washington argues that the State's charging information for the dealing in a narcotic drug charge contained a misstatement of law that was never corrected. "The proper method to challenge deficiencies in a charging information is to file a motion to dismiss the information, no later than twenty days before the omnibus date." Chavez v. State, 988 N.E.2d 1226, 1230 (Ind. Ct. App. 2013) (citation and quotation omitted), trans. denied. Washington filed no such a motion.
[12] Failure to timely challenge an allegedly defective charging information results in waiver unless fundamental error has occurred. See Hayden v. State, 19 N.E.3d 831, 840 (Ind. Ct. App. 2014), trans. denied. Fundamental error is an extremely narrow exception to the waiver rule, and the defendant faces the heavy burden of showing that the alleged error is so prejudicial to the defendant's rights as to make a fair trial impossible. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). An error in a charging information is fundamental if it "mislead[s] the defendant or fail[s] to give him notice of the charges against him so that he is unable to prepare a defense to the accusation." Leggs v. State, 966 N.E.2d 204, 208 (Ind. Ct. App. 2012) (quotation omitted).
[13] The State's amended information for dealing in a narcotic drug was based on Indiana Code section 35-48-4-1 and stated:
[Washington], did then and there knowingly or intentionally possess a narcotic drug, to wit: heroin, with intent to deliver and the aggregate amount of the substance is less than five (5) grams and an enhancing circumstances applies, to wit: possession of a firearm or manufacturing through packaging[.]
Appellant's Third Amended Appendix ("Appellant's App."), Volume 2 at 102. Indiana Code section 35-48-4-1(d)(2) states that dealing is a Level 3 felony if "the amount of the drug involved is at least one (1) gram but less than five (5) grams and an enhancing circumstance applies[.]"
[14] Washington claims that the charge against him is a misstatement of law because it omits that the heroin must be "at least one (1) gram" and thus he was not adequately informed of the charges against him. Appellant's Amended Brief ("Appellant's Br.") at 8. Specifically, Washington argues that he Id. at 17.
[15] Here, the charging information references both the overarching statute, Indiana Code 35-48-4-1, and that Washington was being charged with a Level 3 felony. Therefore, Washington was given notice of the one gram minimum and any potential trial strategy he claims to have been prevented from focusing on was always available to him. See Wilhoite v. State, 7 N.E.350, 353 (Ind. Ct. App. 2014) ()
(citation omitted). Further, we are unpersuaded that Washington has shown that he was prejudiced. The bags of heroin found weighed 1.19 and 1.36 grams, thus combined to be almost twice the omitted weight minimum.
[16] We conclude that Washington did not show fundamental error, and his argument fails. See Wine v. State, 637 N.E.2d 1369, 1374-75 (Ind. Ct. App. 1994) (...
To continue reading
Request your trial