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Walton v. State

Court of Appeals of Indiana

August 4, 2017

Arrion Walton, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01-1505-F2-02

          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

          Vaidik, Chief Judge.

         Case Summary

         [¶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.

         Facts and Procedural History

         [¶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.

         Discussion and Decision

         [¶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.

         I. Double Jeopardy

         [¶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 ...


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