MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 31 2017, 11:02 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Graham Law Firm P.C. Attorney General of Indiana
Lafayette, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kwame Riddle, May 31, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1611-CR-2730
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D01-1604-F4-14
Najam, Judge.
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Statement of the Case
[1] Kwame Riddle appeals his adjudication as a habitual offender and his sentence
after a jury found him guilty of dealing in a narcotic drug, as a Level 4 felony;
dealing in a narcotic drug, as a Level 5 felony; and for being a habitual
offender. Riddle raises the following two issues for our review:
1. Whether the trial court erred when it instructed the jury,
on the habitual offender allegation, that the court had
taken judicial notice that two prior Illinois convictions
against Riddle were equivalent to Level 5 felonies in
Indiana.
2. Whether Riddle’s eighteen-year aggregate sentence is
inappropriate in light of the nature of his offenses and his
character.
We also address the following issue sua sponte:
3. Whether the trial court violated Riddle’s right to be free
from double jeopardy when it entered judgment of
conviction on lesser-included offenses and then merged the
sentences for those convictions.
[2] We affirm and remand with instructions.
Facts and Procedural History
[3] In October of 2015, officers with the Tippecanoe County Drug Task Force
conducted multiple controlled drug buys from Riddle. In those controlled buys,
officers purchased heroin from Riddle directly and purchased cocaine from
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third parties, which was arranged through Riddle. Thereafter, the State arrested
Riddle and charged him with the following five counts: Count I—dealing in
cocaine, as a Level 5 felony; Count II—dealing in a narcotic drug, as a Level 4
felony; Count III—possession of a narcotic drug, as a Level 6 felony; Count
IV—dealing in a narcotic drug, as a Level 5 felony; Count V—possession of a
narcotic drug, as a Level 6 felony; and Count VI—habitual offender.
[4] Following the first phase of a bifurcated trial, a jury found Riddle guilty on
Counts I through V. The second phase pertained only to Count VI, the State’s
additional allegation that Riddle was a habitual offender. In support of that
allegation, the State moved the court to take judicial notice that two prior
Illinois felony convictions against Riddle were substantially similar to Level 5
offenses under the Indiana Code and, as such, could be used as predicate
offenses for the habitual offender allegation. The trial court agreed, over
Riddle’s objection, and instructed the jury in relevant part as follows:
The State may seek to have a person sentenced as a habitual
offender for a Level 4 felony by proving that the person has
accumulated two (2) prior unrelated felony convictions.
The Court takes judicial notice that the Illinois charge of and conviction
of Delivery of a Controlled Substance and Unlawful Delivery of a
Controlled Substance are equivalent to a Level 5 felony in Indiana.
You may find the Defendant to be a habitual offender only if the
State has proven each of the following facts beyond a reasonable
doubt:
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1. The Defendant;
2. Committed and was convicted and sentenced for
Delivery of a Controlled Substance[;] and[]
3. Later committed and was convicted and sentenced for
Unlawful Delivery of a Controlled Substance; and[]
4. Later committed Count [II], Dealing in a Narcotic
Drug of which Defendant was convicted in Phase I, a
[L]evel 4 felony.
If the State failed to prove each of these facts beyond a
reasonable doubt, you must find the Defendant is not a habitual
offender.
If the State did prove each of these facts beyond a reasonable
doubt, you may find the defendant is a Habitual Offender as
charged.
Appellant’s App. Vol. II at 163 (emphasis added). The jury found Riddle to be
a habitual offender. After a sentencing hearing, the court ordered Riddle to
serve an aggregate term of eighteen years. This appeal ensued.
Discussion and Decision
Issue One: The Habitual Offender Jury Instruction
[5] On appeal, Riddle first contends that the trial court erred when it instructed the
jury on the habitual offender allegation. According to Indiana Code Section 35-
50-2-8(b) (2016):
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A person convicted of murder or a Level 1 through Level 4
felony is a habitual offender if the state proves beyond a
reasonable doubt that:
(1) the person has been convicted of two (2) prior
unrelated felonies; and
(2) at least one (1) of the prior unrelated felonies is not a
Level 6 felony or a Class D felony.
[6] Specifically, Riddle disputes, first, whether the trial court, instead of the jury,
had the right to determine that at least one of Riddle’s prior Illinois felonies
would not be a Level 6 or Class D felony offense in Indiana. This argument
raises a question of law we review de novo. E.g., Pinner v. State, ___ N.E.3d ___,
2017 WL 1900295, at *2 (Ind. May 9, 2017). Next, Riddle contends that the
court’s instruction, which stated that the court took judicial notice of Riddle’s
“convictions” for the two Illinois offenses, usurped the jury’s authority to
determine whether Riddle in fact had two prior convictions to support the
habitual offender charge. Appellant’s Br. at 13. We review this argument for
an abuse of discretion. E.g., Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015).
We address each of Riddle’s arguments in turn.
[7] First, we reject Riddle’s argument that, as a matter of law, the trial court
violated his jury trial rights when it determined that at least one of Riddle’s
prior Illinois felonies would not be a Level 6 or Class D felony offense in
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Indiana.1 The Indiana Supreme Court has long recognized that “[t]he pertinent
question of fact for the jury to determine in a habitual offender proceeding is
whether the accused has two prior convictions. The question of whether those
alleged convictions were for felonies is for the trial court to determine . . . .”
Seward v. State, 453 N.E.2d 256, 257 (Ind. 1983) (quotation marks omitted).
Our court has similarly repeatedly stated that “whether an offense is a felony for
purposes of the habitual offender statute is a question of law.” Welch v. State,
828 N.E.2d 433, 438 (Ind. Ct. App. 2005) (citing Cain v. State, 594 N.E.2d 835,
842 (Ind. Ct. App.), aff’d in relevant part on reh’g, 599 N.E.2d 625 (1992)).
Accordingly, our case law is clear that it was the trial court’s prerogative to
determine whether Riddle’s Illinois convictions satisfied the legal requirement
that at least one of the underlying offenses would not be a Level 6 or Class D
felony.
[8] Riddle acknowledges that case law on appeal. Nonetheless, he asserts that his
argument is an argument under the Sixth Amendment to the United States
Constitution2 while our case law addresses statutory issues. But the Sixth
Amendment is of no avail here; the United States Supreme Court has expressly
held that the Sixth Amendment requires “any fact that increases the penalty for
a crime beyond the prescribed statutory maximum [to] be submitted to a jury”
1
Riddle does not challenge the trial court’s conclusion on the merits of its determination.
2
Riddle does not raise the Indiana Constitution and its more expansive jury trial rights as a basis for possible
relief on appeal. See Ind. Appellate Rule 46(A)(8)(a); see also Seay v. State, 673 N.E.2d 475, 480 (Ind. Ct. App.
1996) (discussing Ind. Const. art. 1, § 19), adopted, 698 N.E.2d 732, 733 (Ind. 1998).
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“[o]ther than the fact of a prior conviction.” Blakely v. Washington, 542 U.S. 296,
301 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)) (emphasis
added). Thus, we reject Riddle’s argument under the Sixth Amendment.
[9] Second, Riddle suggests on appeal that the jury instruction, which stated that
the trial court took judicial notice of Riddle’s “convictions” for the two Illinois
offenses, in effect, took away the jury’s authority to determine for itself whether
the fact of those convictions had been proved beyond a reasonable doubt.
Appellant’s Br. at 13. We cannot agree. While the instruction stated that the
trial court took “judicial notice that the Illinois charge of and conviction of [the
two offenses] are equivalent to a Level 5 felony in Indiana,” it then immediately
stated that the jury “may find the Defendant to be a habitual offender” if the
jury found that the State had proved beyond a reasonable doubt that Riddle
“committed and was convicted” of the two Illinois felonies. Appellant’s App.
Vol. II at 163. That is, taken as a whole the instruction informed the jury: (1)
that the court took judicial notice that the Illinois offenses were legally
equivalent to the requisite level Indiana offenses; and (2) that the jury was
charged with finding, as a matter of fact, that Riddle had committed and been
convicted of the Illinois offenses. Accordingly, the trial court did not err when
it instructed the jury on the habitual offender allegation.
Issue Two: Appellate Rule 7(B)
[10] Riddle next asserts that his eighteen-year aggregate sentence is inappropriate.
As we have explained:
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Indiana Appellate Rule 7(B) permits an Indiana appellate court
to “revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and
the character of the offender.” We assess the trial court’s
recognition or nonrecognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
App. 2006). The principal role of appellate review is to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). A defendant must persuade the appellate court that his or
her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[11] Here, the trial court found the following mitigating and aggravating
circumstances:
The Court finds as mitigating factors the defendant’s difficult
childhood[ and that] the defendant does have support of others.
The Court finds as aggravating factors the defendant’s criminal
history[, which] include[s] juvenile adjudications and adult
misdemeanor and felony convictions[;] the defendant was out on
parole from the State of Illinois at the time of the instant
offense[s;] the defendant’s substance abuse history[;] and
previous attempts at rehabilitation have failed.
The Court further finds that the aggravating factors outweigh the
mitigating factors.
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Appellant’s App. Vol. II at 10. In light of those findings, the court sentenced
Riddle to nine years on Count II; four years on Count IV; and nine years for
being a habitual offender.3 The court ordered the sentence on Count IV to run
concurrent with the sentence on Count II and the sentence for the habitual
offender adjudication to run consecutive to the sentence for Count II, for an
aggregate term of eighteen years. The court then suspended two of those years
to probation.
[12] On appeal, Riddle asserts that his sentence is inappropriate in light of the nature
of the offenses and his character because his “mother was a heroin and crack
cocaine addict” and he “was removed from the home by state authorities early
in his childhood, but was placed back with his mother” later. Appellant’s Br. at
20. Riddle’s “foster parents . . . beat [him] . . . [and their] son raped [Riddle’s]
sister.” Id. at 21. Riddle further asserts that, “[o]ften being without food” upon
being returned to the care of his mother, “[he] started selling drugs in Chicago
to survive.” Id. at 20. Riddle also states that he has earned a G.E.D. during his
incarceration, that he attends church, and that his girlfriend recently gave birth.
Finally, Riddle contends that he “sold relatively small amounts of controlled
substances” in the instant offenses. Id. at 21.
[13] We cannot say that any of those assertions demonstrate that Riddle’s eighteen-
year sentence, with two years suspended to probation, is inappropriate.
3
As explained in Issue Three, we do not consider Riddle’s other convictions in reviewing his sentence.
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Regarding the nature of the offenses, Riddle willingly engaged in or arranged
multiple deliveries of heroin and cocaine to putative buyers. Regarding his
character, Riddle has a life-long record of dealing in controlled substances in
multiple states. Prior encounters with the justice system have not abated his
criminal lifestyle. Indeed, he was on parole at the time he committed the
instant offenses. We acknowledge, as the trial court did, that Riddle currently
has strong family support, but the trial court considered that fact when it
tailored Riddle’s sentence. We cannot say that Riddle has carried his burden to
show that his sentence is inappropriate, and we affirm Riddle’s sentence.
Issue Three: Double Jeopardy
[14] Finally, we consider, sua sponte, whether the trial court erred when it entered
Riddle’s convictions. In its corrected sentencing order, the trial court stated that
the jury had found Riddle guilty on each of the State’s six alleged offenses. The
court then stated that “IT IS ORDERED AND ADJUDGED” that Riddle “is
guilty” for each offense. Appellant’s App. Vol. II at 9-10. The abstract of
judgment likewise states, for each offense: “Guilty Verdict Accepted.” Id. at
15. However, after making those statements in the corrected sentencing order
and the abstract of judgment, the court stated that the offenses alleged in
Counts I, III, and V “merged” into Counts II and IV, the Level 4 offense and
the Level 5 dealing in a narcotic drug offense, respectively. Id. at 9-10, 15.
[15] Such statements are insufficient to protect the defendant’s right to be free from
double jeopardy. As we have explained:
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If a trial court does not formally enter a judgment of conviction
on a [finding] of guilty, then there is no requirement that the trial
court vacate the “conviction,” and merger is appropriate.
Townsend v. State, 860 N.E.2d 1268, 1270 (Ind. Ct. App. 2007)
(quoting Green v. State, 856 N.E.2d 703, 704 (Ind. 2006)).
However, if the trial court does enter judgment of conviction on a [guilty
finding], then simply merging the offenses is insufficient and vacation of
the offense is required. See id.; Green, 856 N.E.2d at 704; Gregory v.
State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008) (where trial court
entered judgments of conviction on jury’s verdicts of guilty for
dealing and conspiracy, then later merged the convictions for
double jeopardy reasons, such merging without also vacating the
conspiracy conviction was insufficient to cure the double
jeopardy violation).
Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (emphasis added);
see also West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App 2014) (“in a document
captioned ‘Judgment,’ the trial court noted that [the defendant] was guilty on
both counts before determining that Count II merged into Count I. . . . [W]e
conclude the court entered judgment on the convictions[] and merger was
insufficient to remedy the double jeopardy violation.”), trans. denied.
[16] For the same reasons, we conclude that the language used in the trial court’s
judgment here was insufficient to remedy the double jeopardy violations, and
we remand with instructions for the court to vacate Riddle’s convictions under
Counts I, III, and V.
Conclusion
[17] In sum, we hold that the trial court did not err when it instructed the jury on the
habitual offender allegation. We also hold that Riddle’s sentence is not
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inappropriate. However, we remand to the trial court with instructions that it
vacate Riddle’s convictions on Counts I, III, and V.
[18] Affirmed and remanded with instructions.
Riley, J., and Bradford, J., concur.
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Kwame Riddle v. State of Indiana (mem. dec.)
Combined Opinion