Whaley v. State
| Decision Date | 07 February 2006 |
| Docket Number | No. 49A04-0502-CR-99.,49A04-0502-CR-99. |
| Citation | 843 N.E.2d 1 |
| Parties | Garland WHALEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Hilary Bowe Ricks, Indianapolis, for Appellant.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, for Appellee.
Garland Whaley appeals his convictions and sentences for dealing in cocaine as a class A felony,1 resisting law enforcement as a class C felony,2 two counts of resisting law enforcement as class D felonies,3 and his status as an habitual substance offender4 and an habitual offender.5 Whaley raises five issues, which we revise and restate as:
I. Whether the evidence is sufficient to sustain his convictions for dealing in cocaine, resisting law enforcement as a class C felony, and two counts of resisting law enforcement as class D felonies, and his status as an habitual substance offender;
II. Whether the trial court erred by sentencing Whaley as an habitual offender and habitual substance offender without having first found that Whaley was an habitual offender and habitual substance offender;
III. Whether the trial court abused its discretion by ordering a sentence enhanced by Whaley's status as an habitual offender to be served consecutive to a sentence enhanced by Whaley's status as an habitual substance offender;
IV. Whether Whaley was subject to multiple punishments for the same offense in violation of the prohibition against double jeopardy as a result of his two convictions for resisting law enforcement as class D felonies; and
V. Whether Whaley's sentences violate Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh'g denied.
We affirm in part, reverse in part, and remand.
The relevant facts follow. Ronnie Dunham was a cooperating individual for the Marion County Sheriff's Department Covert Operations Narcotics section. On March 1, 2003, Dunham met with Detective Michael O'Day and Deputy Luke Schmitt. Dunham called Whaley and arranged to meet at a Village Pantry to purchase one-quarter ounce of crack cocaine for $300.00. Deputy Schmitt then searched Dunham and drove him to the Village Pantry. Upon arriving at the Village Pantry, Dunham talked to Whaley, and Whaley changed the location of the transaction to a McDonald's restaurant. Deputy Schmitt and Dunham drove to the McDonald's restaurant and waited for Whaley to arrive. When Whaley arrived, Deputy Schmitt gave $300.00 in photocopied buy money to Dunham, and Dunham exited Deputy Schmitt's vehicle and got into the backseat of Whaley's vehicle. Whaley gave Dunham a plastic baggie containing crack cocaine, and Dunham gave the $300.00 to Whaley. Dunham then returned to Deputy Schmitt's vehicle and showed Deputy Schmitt the baggie. Deputy Schmitt then gave the "takedown signal." Transcript at 137.
Sergeant Garth Schwomeyer pulled into the McDonald's parking lot, activated his emergency lights, and stopped his car near Whaley's vehicle. He exited his vehicle and pointed his weapon at Whaley's windshield. Whaley drove his car toward Sergeant Schwomeyer but swerved and struck a car driven by Detective Bryan Durham. As a result, Detective Durham's hand, wrist, arm, shoulder, back, and neck were injured.
Whaley sped toward the parking lot exit and was pursued by Sergeant Schwomeyer. Deputy Larry Craciunoiu and Deputy Matthew Morgan entered the parking lot with their emergency lights activated, and Whaley drove around them and into a ditch. Whaley then exited his vehicle and fled on foot. Deputy Craciunoiu and Deputy Morgan chased Whaley and caught him when he fell down. Whaley put his arms underneath his body to prevent the deputies from handcuffing him. The deputies had to hit Whaley's forearms in order to bring his arms behind his back. As a result, Deputy Craciunoiu injured his right hand, and Deputy Morgan injured his wrist and right hand. The $300.00 in buy money was recovered from Whaley, and testing revealed that the baggie contained 5.0760 grams of cocaine.
The State charged Whaley with: (1) Count I, dealing in cocaine as a class A felony; (2) Count II, possession of cocaine as a class D felony; (3) Count III, resisting law enforcement as a class D felony, for fleeing from Deputy Morgan; (4) Count IV, criminal recklessness as a class A misdemeanor, by operating his vehicle at and toward Detective Durham; (5) Count V, resisting law enforcement as a class A misdemeanor, for forcibly resisting Deputy Morgan; (6) Count VI, resisting law enforcement as a class C felony, for fleeing from Deputy Morgan and Deputy Craciunoiu and injuring Detective Durham; (7) Count VII, resisting law enforcement as a class D felony, for forcibly resisting Deputy Morgan and injuring Deputy Morgan; and (8) Count VIII, resisting law enforcement as a class D felony, for forcibly resisting Deputy Craciunoiu and injuring Deputy Craciunoiu. The State also alleged that Whaley was an habitual substance offender due to prior convictions for conspiracy to commit possession of cocaine and possession of marijuana and an habitual offender due to prior convictions for attempted auto theft and resisting law enforcement as a class D felony.
After a bench trial, the trial court found Whaley guilty of: (1) Count I, dealing in cocaine as a class A felony; (2) Count II, possession of cocaine as a class D felony, which the trial court merged with Count I; (3) Count III, resisting law enforcement as a class D felony, which the trial court merged with Count VI; (4) Count IV, criminal recklessness as a class A misdemeanor; (5) Count V, resisting law enforcement as a class A misdemeanor, which the trial court merged with Count VI; (6) Count VI, resisting law enforcement as a class C felony; (7) Count VII, resisting law enforcement as a class D felony; and (8) Count VIII, resisting law enforcement as a class D felony. In the habitual phase, the State presented evidence regarding Whaley's prior convictions, and Whaley stipulated as to his prior convictions. The trial court then took the habitual offender and habitual substance offender allegations under advisement.
At sentencing, the trial court found one mitigator, the fact that Whaley made attempts to improve his life while incarcerated. The trial court also found two aggravators, Whaley's criminal history and Whaley's probation revocations, and that the aggravators outweighed the mitigators. The trial court also noted the fact that "a period of incarceration may be necessary because that's the only time that the defendant does things to improve himself." Transcript at 414. The trial court sentenced Whaley to: (1) forty years for Count I, dealing in cocaine as a class A felony, with eight years added for Whaley's status as an habitual substance offender; (2) 365 days for Count IV, criminal recklessness as a class A misdemeanor,6 to be consecutive to the sentence in Count I but concurrent to the sentence in Count VI; (3) six years for Count VI, resisting law enforcement as a class C felony, with nine years added for Whaley's status as an habitual offender, to be served concurrent to the sentence for Count IV but consecutive to the sentence for Count I; (4) two years for Count VII, resisting law enforcement as a class D felony, to be served concurrent to the sentence for Count VIII but consecutive to the sentences in Count I, Count IV, and Count VI; (5) two years for Count VIII, resisting law enforcement as a class D felony, to be served concurrent to the sentence for Count VIII but consecutive to the sentences in Count I, Count IV, and Count VI. Thus, Whaley received an aggregate sentence of sixty-five years in the Indiana Department of Correction.
The first issue is whether the evidence is sufficient to sustain Whaley's convictions for dealing in cocaine, resisting law enforcement as a class C felony, two counts of resisting law enforcement as class D felonies, and his status as an habitual substance offender. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995), reh'g denied. Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction if there exists evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id.
The offense of dealing in cocaine as a class A felony is governed by Ind.Code § 35-48-4-1, which provides that "[a] person who ... knowingly or intentionally ... delivers ... cocaine ... commits dealing in cocaine ... a Class B felony, except as provided in subsection (b)." I.C. § 35-48-4-1(a). The offense is a class A felony if "the amount of the drug involved weighs three (3) grams or more." I.C. § 35-48-4-1(b). Whaley argues that the evidence is insufficient to show that he delivered more than three grams of cocaine. Specifically, Whaley argues that Dunham may have added cocaine to the package given to him by Whaley.
This argument is similar to a challenge to the chain of custody. "Merely raising the possibility of tampering with the evidence is an insufficient method of challenging the chain of custody." Johnson v. State, 594 N.E.2d 817, 818 (Ind.Ct. App.1992). "When dealing with fungible evidence such as cocaine, the State must give reasonable assurance the property passed through the hands of the parties in an undisturbed condition." Id. "[T]he State need not establish a `perfect' chain of custody, and any gaps impact solely on the weight, not the admissibility, of the evidence." Id.
First, Whaley contends that the deputies failed to adequately search Dunham prior to the controlled buy.
A controlled buy consists of searching the person who is to act as the buyer, removing all personal effects,...
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