APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Daniel Pflum, Judge. Cause No. 49G20-1305-FA-29024.
ATTORNEY FOR APPELLANT: PATRICIA CARESS McMATH, Marion County Public Defender Agency, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; WILLIAM HACKL BRAINARD, MONIKA PREKOPA TALBOT, Deputy Attorney General, Indianapolis, Indiana.
ROBB, Judge. BAILEY, J., and BROWN, J., concur.
Case Summary and Issues
Corey Phelps appeals his maximum eight-year sentence for possession of cocaine, a Class C felony, raising one issue for our review: whether the trial court abused its discretion when it imposed the maximum sentence for a Class C felony after expressing disagreement with the jury's verdict finding Phelps not guilty of a Class A felony. Concluding the trial court abused its discretion, we reverse and remand with instructions to vacate Phelps's sentence and to sentence him to a term of six years executed at the Department of Correction.
Facts and Procedural History
At 9:45 p.m. on May 2, 2013, officers with the Indianapolis Metropolitan Police Department, armed with a warrant, executed a no-knock search of a residence. Several persons were found in or around the residence, and Phelps was among those individuals. Daniel Henson, a medic with the SWAT team that executed the search, witnessed Phelps throw a small object out of a second-story window. A bag containing 12.43 grams of crack cocaine was found in the yard outside the window from which Phelps had thrown something. Inside the house, the police found 0.77 grams of marijuana, a scale, plastic bags, a pipe, and $1,225 in cash.
The State charged Phelps with dealing in cocaine, a Class A felony, and possession of cocaine, a Class C felony. Following
a jury trial, Phelps was found guilty of possession of cocaine but not guilty of dealing in cocaine. At the sentencing hearing, prior to announcing Phelps's sentence, the trial court made the following statement concerning the jury's decision to find Phelps not guilty of dealing in cocaine:
The State . . . pointed out that as what he considered an aggravating factor, was the fact that you were dealing in cocaine. [Defense counsel] brought out the fact that that can't be considered an aggravating factor because you were found not guilty of that. And she is correct, to that extent. I will say however, that I don't know why the jury didn't find you guilty of that offense. . . . I don't really know what they did. Or what their reasoning was behind it. Your attorneys did a really good job of getting them confused . . . [The jury] found you guilty not of the -- not possession of the twelve grams but I think they did find -- that's what they did find you guilty of. They said more than three grams. The evidence clearly showed that you threw the twelve grams out the window. And it was recovered. And in fact, had this been tried to the Court initially, had ...