Young v. State, 34A02-9207-CR-308

• Decision Date: 24 August 1993
• Docket Number: No. 34A02-9207-CR-308,34A02-9207-CR-308
• Citation: 620 N.E.2d 21
• Parties: Leroy W. YOUNG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 21

620 N.E.2d 21

Leroy W. YOUNG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 34A02-9207-CR-308.

Court of Appeals of Indiana,

Second District.

Aug. 24, 1993.

Transfer Denied Oct. 13, 1993.

Eugene C. Hollander, Indianapolis, for appellant-defendant.

Pamela Carter, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

SHIELDS, Judge.

Leroy W. Young, Jr., appeals his conviction of dealing in cocaine, ¹ a class B felony, and his twenty-year sentence enhancement for his status as a habitual offender.

We affirm.

ISSUES

Young raises four issues:

1. Did the State present sufficient evidence to overcome Young's defense of entrapment?

2. Did the trial court err in admitting evidence concerning a search of a house that occurred subsequent to Young's arrest?

3. Did Young receive ineffective assistance of counsel?

4. Was the trial court's twenty-year enhancement of Young's sentence, based on his status as a habitual offender, manifestly unreasonable or unconstitutionally disproportionate?

FACTS

On June 7, 1988, Arthur Biles and Darrell Ivery were working for the Kokomo Police Department as confidential informants. After inquiring of a stranger where he might buy some cocaine, Biles was introduced to Leroy W. Young, Jr., at the Elks Lounge. Young told Biles that he knew of two local suppliers and quoted prices and quantities to Biles. After dickering over how to conduct the purchase, Young directed Ivery and Biles to the home of Yolanda Hall. Only Young entered the house; he returned a few minutes later with a plastic package wrapped in black crepe paper containing 1.2 grams of cocaine. Biles complied with Young's request for a piece of the cocaine in return for Young's services. Young offered to help Biles and Ivery find cocaine sources in the future.

Young was convicted by a jury of dealing in cocaine and adjudicated a habitual offender. He was sentenced to thirty years, receiving the presumptive ten-year sentence for his conviction of dealing in cocaine, enhanced by twenty years for his status as a habitual offender. He appeals.

DISCUSSION

I.

Young first argues that the evidence is insufficient to sustain his conviction because the State failed to overcome his defense of entrapment. ²

This court reviews whether the entrapment defense was adequately rebutted as it reviews all other matters of sufficiency. Martin v. State (1989), Ind., 537 N.E.2d 491, 495. Thus, we look only at the evidence most favorable to the conviction and all reasonable inferences which may be drawn therefrom. Stewart v. State (1988), Ind., 521 N.E.2d 675, 677. We neither reweigh the evidence nor judge the credibility of witnesses, and we must uphold a conviction if the record contains substantial evidence of probative value to support the conclusion of the fact finder. Id.; Jones v. State (1992), Ind., 589 N.E.2d 241, 242.

To rebut the defense of entrapment, the State must introduce evidence which tends to show that the level of police activity did not persuasively affect the free will of the accused and that the accused was predisposed to commit the offense. Crocker v. State (1990), Ind.App., 563 N.E.2d 617, 621, trans. denied. The burden of proof placed upon the State in this regard is the standard of proof beyond a reasonable doubt. Clayton v. State (1986), Ind., 491 N.E.2d 534, 535. Factors which indicate a predisposition to sell drugs include: knowledge of drug prices; knowledge of drug sources and suppliers; use and understanding of terminology of the drug market; solicitation of future drug sales; and multiple sales to undercover officers. Martin, 537 N.E.2d at 495.

Young claims that the evidence of entrapment is "clear and uncontroverted" for a myriad of reasons, ³ the most persuasive being "the record is void of evidence establishing any predisposition on the part of the Defendant to commit this crime prior to his solicitation by the informants." Appellant's Brief at 14-15. Young's argument is unavailing to the extent it focuses on the claim that proof of one's predisposition must come from events preceding the official solicitation. Proof of predisposition is relevant only to ensure that, on the particular occasion, "the proscribed activity was not solely the idea of the police officials." See Baird v. State (1983), Ind., 446 N.E.2d 342, 343 (citation omitted). This purpose, coupled with the factors we use to determine predisposition, support the conclusion that the critical circumstances are those that exist at the time of the solicitation, and not before. See Martin, 537 N.E.2d at 495.

Our review of the record indicates that the State sufficiently rebutted the defense of entrapment. For example, there is evidence that Young quoted prices and respective quantities for the purchase of cocaine in terms of "eight balls" and "sixteenths," thereby demonstrating his understanding of drug terminology. There also is evidence that Young said he knew of at least two local sources of cocaine and one source in Chicago, demonstrating his familiarity with suppliers. Evidence that Young asked for a piece of the cocaine in return for his services demonstrated Young's understanding of how the drug market worked. Finally, the evidence that Young offered to help coordinate future sales for Biles and Ivery demonstrates his willing complicity. This evidence reasonably supports the finding that Young voluntarily engaged in this transaction without pressure on the part of the confidential informants and that he was predisposed to commit the offense.

Young's sufficiency argument asks us to do no more than reweigh the evidence presented by the State. This we will not do. The evidence presented by the State was such that a reasonable juror could infer, beyond a reasonable doubt, that Young willingly participated in this transaction and that he was predisposed to commit this crime. ⁴ There is sufficient evidence of probative value to support Young's conviction for dealing in cocaine.

II.

Young argues the trial court erred in admitting testimony regarding a search of Yolanda Hall's house conducted at least one month after Young sold cocaine to the confidential informants on June 7, 1988.

At trial, Young made a general objection that the proffered testimony was irrelevant. An objection stating evidence is irrelevant is too general to preserve any claim of error unless further explanation is given as to the prejudicial effect of such testimony. See Jernigan v. State (1993), Ind., 612 N.E.2d 609, 612. In Young's case, no explanation of the prejudicial effect of the testimony was given. Thus, Young has waived this issue. ⁵

III.

Young argues that his trial counsel was ineffective for: (1) failing to articulate the defense of entrapment during the trial; ⁶ (2) failing to prepare and tender a jury instruction on entrapment. ⁷

In analyzing claims of ineffective assistance of counsel, we engage in a highly deferential review, requiring consideration of the totality of the evidence before the jury. Johnson v. State (1992), Ind., 584 N.E.2d 1092, 1106. There is a strong presumption that counsel's conduct fell within a wide range of reasonable professional standards. Id. The defendant must present strong and convincing evidence to rebut the presumption that counsel was competent. McCollum v. State (1991), Ind., 582 N.E.2d 804, 810-11. He must show not only deficient performance but also prejudice resulting from such performance. Johnson, 584 N.E.2d at 1106.

Without considering whether counsel's performance was deficient, Young cannot prevail because he did not establish that he was prejudiced by his counsel's performance. See id. Prejudice exists when there is a "reasonable probability that but for counsel's defective performance the result of the proceeding[ ] would have been different." See McCollum, 582 N.E.2d at 810; Stroud v. State (1992), Ind.App., 587 N.E.2d 1335, 1338 (citations omitted). Thus, Young would have had to prove that, had the entrapment defense been effectively raised and argued, he would have been acquitted of the charges. Considering the overwhelming evidence of predisposition, Young cannot meet this burden.

IV.

Young finally argues that his sentence was manifestly unreasonable. Young was sentenced to thirty years in prison. The sentence was computed as follows: (1) he received the presumptive sentence of ten years for his conviction of dealing in cocaine; (2) he received a twenty-year enhanced sentence for being adjudicated a habitual offender. Young's argument on appeal does not dispute the reasonableness of his sentence for the felony conviction. Instead, it challenges the fairness of the twenty-year enhancement for his status as a habitual offender.

Young's enhancement was based upon felonies that occurred in 1976 and 1978. One of the felonies was treated as a class D felony, thus giving the trial court discretion under IC 35-50-2-8(e) to deviate from the thirty-year sentence required under that statute. The trial court exercised this discretion in reducing his enhancement from thirty to twenty years.

Young frames his argument in terms of "manifest unreasonableness." ⁸ Cases he cites in support of his claim, however, contain references to both the proportionality of the sentence as well as the reasonableness of the sentence. See Wilson v. State (1992), Ind., 583 N.E.2d 742, 743 (manifest unreasonableness); Best v. State (1991), Ind., 566 N.E.2d 1027, 1031 (reasonableness and proportionality, using proportionality standard); Clark v. State (1990), Ind., 561 N.E.2d 759, 765 (proportionality). Proportionality is, in essence, a constitutional challenge stemming from both the United States Constitution and the Indiana Constitution. ⁹ See U.S. Const., amend. VIII; Ind. Const., art. I, sec. 16. A claim of manifest unreasonableness, on the other hand, derives from Ind.Appellate Rule 17. ¹⁰

The two claims utilize separate and independent standards of review....