FILED
Aug 04 2017, 10:00 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Arrion Walton, August 4, 2017
Appellant-Defendant, Court of Appeals Case No.
79A04-1604-CR-768
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D01-1505-F2-02
Vaidik, Chief Judge.
Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017 Page 1 of 21
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.
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[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
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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.
1
During the sentencing hearing, the trial court made two errors with respect to the controlled-buy counts.
First, it said that it was merging only four of the possession counts with their corresponding dealing counts,
instead of all five. Second, it said that it was imposing sentences for each of the possession counts, even
though they were to be merged into the dealing counts. However, neither error is present in the trial court’s
written Sentencing Order or the Abstract of Judgment, both of which indicate convictions and sentences for
the dealing counts only. As such, there is nothing to be gained from remanding this matter to the trial court
for further proceedings on this issue. The dissent suggests that merging the possession counts was an
inadequate solution and that we should instruct the trial court to “vacate” them, but our Supreme Court has
made clear that merger is sufficient. Green v. State, 856 N.E.2d 703 (Ind. 2006) (“Where the court merges the
lesser-included offense without imposing judgment, there is no need to remand on appeal to ‘vacate.’”); see
also Carter v. State, 750 N.E.2d 778, 781 (Ind. 2001) (“[A] jury verdict on which the court did not enter
judgment for one reason or another (merger, double jeopardy, etc.) is unproblematic[.]”).
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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 handguns found in the upstairs
apartment, and Walton gives us no reason to believe that he was actually
convicted of the two counts based on the same evidence, i.e., the same gun.
Therefore, Walton’s double-jeopardy claim fails.
[9] The dissent addresses an issue that Walton has not raised: whether multiple
SVF convictions based on the simultaneous possession of multiple firearms are
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ever permissible under the SVF statute, Indiana Code section 35-47-4-5. The
statute provides, in pertinent part, “A serious violent felon who knowingly or
intentionally possesses a firearm commits unlawful possession of a firearm by a
serious violent felon, a Level 4 felony.” Ind. Code § 35-47-4-5(c). In Taylor v.
State, we held that the General Assembly’s use of the singular “possesses a
firearm” reflects its intent to allow a separate conviction for each firearm a
serious violent felon possesses. 929 N.E.2d 912, 921 (Ind. Ct. App. 2010), trans.
denied; see also Daugherty v. State, 52 N.E.3d 885, 892 (Ind. Ct. App. 2016) (citing
Taylor for proposition that Section 35-47-4-5(c) “provides that each unlawful
possession of a weapon is considered to be a separate and distinct act, and
therefore each unlawful possession is a separate and distinct offense.”), trans.
denied. The dissent concludes that Taylor was wrongly decided. We disagree.
[10] If our legislature had intended to allow only a single possession conviction
regardless of the number of firearms possessed, it could have used the phrase
“possesses one or more firearms,” see State v. Stratton, 567 A.2d 986, 989 (N.H.
1989), or “possesses any firearm,” see, e.g., United States v. Valentine, 706 F.2d
282, 292-94 (10th Cir. 1983), instead of “possesses a firearm.” It has thus far
chosen not to do so. We also note that our interpretation of section 35-47-4-5(c)
in Taylor is consistent with the way courts around the country have interpreted
similar statutes. See, e.g., State v. Kidd, 562 N.W.2d 764, 765-66 (Iowa 1997)
(collecting cases); Stratton, 567 A.2d at 989; State v. Gutierrez, 381 P.3d 254, 260
(Ariz. Ct. App. 2016) (collecting cases, including Taylor), rev. denied; State v.
Lindsey, 583 So. 2d 1200, 1203-04 (La. Ct. App. 1991), writ denied. For these
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reasons and the other reasons stated in Taylor, Walton’s SVF convictions are
permissible under the language of the SVF statute.
[11] While we reject Walton’s challenge to his SVF convictions, we find, sua sponte,
that one of his other convictions must be vacated to avoid a double-jeopardy
violation. In relation to the search on May 11, Walton was convicted of one
count of dealing in cocaine—possession with intent to deliver, based on the
cocaine found in the downstairs apartment (Count XIII), and a separate count
of possession of cocaine, based on the cocaine found in the upstairs apartment
(Count XIV). However, this Court has held that a defendant cannot be
convicted of two counts of drug possession (including possession with intent to
deliver) based on two quantities of drugs simultaneously possessed in two
closely related locations. Donnegan v. State, 809 N.E.2d 966, 974-75 (Ind. Ct.
App. 2004) (possession on person, in residence, and in trash outside residence),
trans. denied; see also Campbell v. State, 734 N.E.2d 248, 250-51 (Ind. Ct. App.
2000) (possession on person and in residence); Young v. State, 564 N.E.2d 968,
972 (Ind. Ct. App. 1991) (possession on person and in vehicle), aff’d on reh’g,
trans. denied. Therefore, we must remand this matter to the trial court with
instructions to vacate the judgment of conviction and the sentence on Count
XIV.
II. Sentencing
[12] Walton also asks us to reduce his sentence pursuant to Indiana Appellate Rule
7(B), which provides that an appellate court “may revise a sentence authorized
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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.” Because we generally defer to the judgment of trial
courts in sentencing matters, defendants have the burden of persuading us that
their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind.
Ct. App. 2016). “Whether a sentence is inappropriate ultimately turns on the
culpability of the defendant, the severity of the crime, the damage done to
others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).
[13] Walton asserts that running the sentences for the drug-related convictions
arising from the search on May 11 (dealing in cocaine, conspiracy to commit
dealing in cocaine, and maintaining a common nuisance) consecutive to the
sentence for the earlier controlled buys is inappropriate under Beno v. State, 581
N.E.2d 922 (Ind. 1991), and its progeny. We agree. In Beno, the defendant was
convicted of two counts of dealing in cocaine and one count of maintaining a
common nuisance after two controlled buys at his house, and the trial court
ordered him to serve consecutive sentences on the three counts. On appeal, our
Supreme Court held that “because the crimes committed were nearly identical
State-sponsored buys, consecutive sentences were inappropriate.” Id. at 924.
More recently, in Eckelbarger v. State, the Court extended the Beno principle to
hold that consecutive sentences were inappropriate for drug convictions arising
from two controlled buys and a subsequent search of the defendant’s home. 51
N.E.3d 169 (Ind. 2016). The Court reasoned that the sentences arising from the
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search should be served concurrently with the sentences arising from the
controlled buys because the convictions arising from the search were
“supported by evidence seized pursuant to a search warrant procured based on
the dealing methamphetamine by delivery counts[.]” Id. at 170. In a case
similar to Eckelbarger—drug convictions arising from two controlled buys and
the resultant home search—this Court held that the principle that “the State
may not ‘pile on’ sentences by postponing prosecution in order to gather more
evidence . . . applies equally to convictions arising from evidence gathered as a
direct result of the State-sponsored criminal activity.” Williams v. State, 891
N.E.2d 621, 635 (Ind. Ct. App. 2008); see also Bell v. State, 881 N.E.2d 1080,
1087-88 (Ind. Ct. App. 2008), trans. denied.
[14] Here, as in Eckelbarger and Williams, a series of controlled buys led to a search of
Walton’s apartments. The controlled buys resulted in five dealing convictions,
and the subsequent search resulted in additional drug-related convictions.
Because these additional drug-related convictions are supported by evidence
seized as a direct result of the controlled buys, we agree with Walton that
running the sentences for any of them consecutive to the sentences for the
controlled buys would be inappropriate.2
2
The State does not address Eckelbarger. It argues that Williams is distinguishable from this case because the
buys and search in Williams took place over three days while the buys and search in this case spanned more
than three months. The State does not cite any authority in support of its argument that the Beno rationale
applies only when the events occur “within a few days of each other.” Appellee’s Br. p. 19. To the contrary,
this Court has held that consecutive sentences are inappropriate for convictions arising from five controlled
buys conducted over the course of two months. Hendrickson v. State, 690 N.E.2d 765 (Ind. Ct. App. 1998).
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[15] Therefore, we remand this matter to the trial court for the imposition of a
sentence of forty-two years: thirty-four years on Count IX (with the shorter
sentences on the remaining drug-related convictions to run concurrently) and
eight years on each of the SVF convictions, to run concurrently with one
another but consecutive to Count IX (Walton acknowledges that his gun
possession is distinguishable from his drug crimes and is not subject to the
Beno/Eckelbarger principle). In making these changes, the trial court must also
reduce the sentences for Count XIII (dealing in cocaine) and Count XV
(conspiracy to commit dealing in cocaine) from twenty-four years to twenty-two
years, so as to avoid any potential claim of error under the “episode of criminal
conduct” statute, Indiana Code section 35-50-1-2.3
[16] Affirmed in part and reversed and remanded in part.
The State also contends Walton’s conviction for maintaining a common nuisance “does not fall within the
rationale of the Beno rule.” Appellee’s Br. p. 18. As already noted, however, one of the sentences ordered
concurrent by the Supreme Court in Beno was for maintaining a common nuisance.
3
The version of Section 35-50-1-2(c) that was in effect when Walton committed his offenses provided that
“the total of the consecutive terms of imprisonment to which the defendant is sentenced” for a non-violent
episode of criminal conduct “shall not exceed the advisory sentence for a felony which is one (1) class of
felony higher than the most serious of the felonies for which the person has been convicted.” Ind. Code Ann.
§ 35-50-1-2(c) (West 2012). Here, the trial court found that the May 11 offenses constituted an episode of
criminal conduct, so the total of the consecutive terms of imprisonment could not exceed thirty years, the
advisory sentence for a Level 1 felony (the most serious offense on May 11 having been a Level 2 felony).
The trial court correctly identified this thirty-year cap and said that it was imposing a cumulative sentence of
thirty years for the May 11 offenses, but it failed to impose individual sentences that actually added up to
thirty years. Instead, it indicated that it was imposing sentences of twenty-four years for dealing in cocaine,
twenty-four years for conspiracy to commit dealing in cocaine, two years for maintaining a common
nuisance, and eight years for each SVF conviction. Because the eight years on the SVF convictions run
consecutive to the concurrent sentences on the drug-related convictions, including the sentences for the May
11 dealing and conspiracy, the latter sentences must be reduced to twenty-two years to reach the thirty-year
cap.
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Robb, J., concurs.
Bailey, J, dissents with separate opinion.
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ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Arrion Walton, August 4, 2017
Appellant-Defendant, Court of Appeals Case No.
79A04-1604-CR-768
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D01-1505-F2-02
Bailey, Judge dissenting
Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017 Page 12 of 21
[17] I would resolve this case differently from the majority in three respects. First, I
would conclude that the SVF statute does not support two convictions under
these facts. Second, because the trial court orally entered judgment of
conviction on the lesser-included possession counts, and having already
identified multiple issues with the sentencing order, I would instruct the trial
court to vacate the lesser-included counts that it later merged. Third, although I
agree that Walton’s drug-related counts warrant concurrent sentences under
Beno and its progeny, in light of the resultant conflict with the statutory
sentencing limit as well as the impact on the aggregate length of Walton’s
sentence, I would defer to the trial court and remand for resentencing.
SVF Convictions
[18] Walton was convicted of multiple SVF counts based on his constructive
possession of multiple firearms. If the SVF statute does not authorize more
than one conviction under these facts, then Walton’s convictions run afoul of
principles of double jeopardy. It is essential, then, to look to the SVF statute,4
4
The majority notes that Walton has not challenged the SVF statute, yet appellate courts “must address
double jeopardy violations sua sponte where they exist because ‘a double jeopardy violation, if shown,
implicates fundamental rights.’” Montgomery v. State, 21 N.E.3d 846, 864 n.5 (Ind. Ct. App. 2014) (quoting
Smith v. State, 881 N.E.2d 1040, 1047 (Ind. Ct. App. 2008)), trans. denied. Thus, just as it was appropriate for
the majority to sua sponte identify a double jeopardy issue concerning two of Walton’s cocaine-related
convictions, it is appropriate to evaluate the SVF statute to fairly consider Walton’s fundamental rights.
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which states that a serious violent felon may not “knowingly or intentionally
possess a firearm.” I.C. § 35-47-4-5(c).
[19] The SVF statute uses the singular language “possesses a firearm,” but it is not
clear whether that permits a separate conviction for each and every firearm or a
single conviction for all firearms possessed. On the one hand, this singular
language could be viewed as reflecting an intent to allow a separate conviction
for each and every firearm—the majority concludes as much, relying on Taylor
v. State, 929 N.E.2d 912 (Ind. Ct. App. 2010), trans. denied. On the other hand,
however, it is equally plausible that the legislature selected the singular
language “possesses a firearm” to ensure a conviction for the possession of one
or more firearms. The majority points out that the legislature could have used
more precise language if it had intended to allow a single conviction regardless
of the number of firearms possessed—and it is right. But, the legislature could
also have been more precise and enacted a statute that expressly permits a
conviction for each and every firearm. Yet, nothing on the face of the statute
evinces a clear intent either way. Thus, the instant statute is ambiguous.5 See
Day v. State, 57 N.E.3d 809, 813 (Ind. 2016) (“[A] statute is ambiguous when it
allows more than one reasonable interpretation.”).
5
To the extent that my statutory analysis parts ways with Taylor, I would conclude that Taylor should not be
afforded legislative acquiescence, given the short time that has passed since the case was decided and that the
Indiana Supreme Court has not yet addressed this issue. See Layman v. State, 42 N.E.3d 972, 978 (Ind. 2015)
(noting “that a judicial interpretation of a statute, particularly by the Indiana Supreme Court, accompanied
by substantial legislative inaction for a considerable time, may be understood to signify the General
Assembly’s acquiescence and agreement with the judicial interpretation”).
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[20] For support, the majority is inclined to look to “the way courts around the
country have interpreted similar statutes.” Slip op. at 6. However, our role is
to instead apply Indiana law—and when we are faced with an ambiguous
statute, we turn to our canons of construction to discern the legislature’s intent.
See Day, 57 N.E.3d at 813; see also Consumer Attorney Servs., P.A. v. State, 71
N.E.3d 362 (Ind. 2017). No canon is absolute, rather, these “‘rules or maxims
of construction are flexible aids to the search for meaning.’” Brownsburg Area
Patrons Affecting Change v. Baldwin, 714 N.E.2d 135, 139 (Ind. 1999). Moreover,
the legislature has codified several canons in articulating general rules of
construction for the Indiana Code. See I.C. § 1-1-4-1 (setting forth rules of
construction, and noting that “[t]he construction of all statutes of this state shall
be by [these] rules, unless the construction is plainly repugnant to the intent of
the legislature or of the context of the statute”).
[21] Because this is a criminal case, the rule of lenity applies. See Day, 57 N.E.3d at
813; Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012); Johnson v. State, No.
32A05-1604-CR-703, slip op. at 2, 8 (Ind. Ct. App. Apr. 19, 2017). Under this
rule, appellate courts are to “interpret[] the statute in the defendant’s favor as
far as the language can reasonably support.” Day, 57 N.E.3d at 813. Thus, if a
reasonable interpretation of the SVF statute is that multiple firearms give rise to
only one offense, then that interpretation controls. Cf. Am. Film Distributors, Inc.
v. State, 471 N.E.2d 3, 5 (Ind. Ct. App. 1984) (“Unless there appears in the
statute a clear intent to fix separate penalties . . . the issue should be resolved
against turning a single transaction into multiple offenses.”), trans. denied.
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[22] There is also the “‘well-settled rule . . . that words used in their singular include
also their plural.’” See Gaddis v. McCullough, 827 N.E.2d 66, 71 (Ind. Ct. App.
2005), trans. denied; see also Floyd Cty. v. City of New Albany, 1 N.E.3d 207, 217
(Ind. Ct. App. 2014) (noting the same general rule), trans. denied. Indeed, the
legislature has codified this common-law principle, expressly providing that
“[w]ords importing the singular number only may be also applied to the plural
of persons and things.” I.C. § 1-1-4-1(3). This principle lends support to the
reading that the singular language used in the statute—“possesses a firearm”—
requires that the possession of multiple firearms amounts to one offense, and
thus only one of Walton’s convictions can stand.
[23] Also informative is the principle of in pari materia, which provides that related
statutes may help us discern legislative intent. See Klotz v. Hoyt, 900 N.E.2d 1, 5
(Ind. 2009). “Statutes are in pari materia—pertain to the same subject matter—
when they relate to the same person or thing, to the same class of persons or
things, or have the same purpose or object.” 2B Norman J. Singer & J.D.
Shambie Singer, Sutherland Statutes and Statutory Construction § 51:3, at 222
(7th ed. 2007) (footnotes omitted). This principle reflects the notion that
“[s]tatutes relating to the same general subject matter . . . ‘should be construed
together so as to produce a harmonious statutory scheme.’” Klotz, 900 N.E.2d
at 5 (quoting Sanders v. State, 466 N.E.2d 424, 428 (Ind. 1984)); see also, e.g.,
State v. Gerhardt, 44 N.E. 469, 476 (1896) (observing that all laws regulating
liquor traffic are in pari materia).
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[24] Under the principle of in pari materia, courts are to consider comparable statutes
when examining the statute at issue. Here, the statute concerns firearms and
prohibits those with a certain status—serious violent felons—from possessing
them. See I.C. § 35-47-4-5(c). Yet, generally, it is not unlawful to possess a
firearm, and our body politic has decided that there is nothing inherent in most
guns6 that makes their possession illegal. Rather, it is the status of the person
possessing the gun that determines whether the possession of it is illegal. In the
instant case, a determination was made that Walton, having been proven to be
a serious violent felon, was also found to be in possession of a firearm.
Similarly, there are status offenses making it a crime for a convicted domestic
batterer to possess a firearm, see I.C. § 35-47-4-6, just as it is a crime to carry a
handgun without the proper license to do so. See I.C. § 35-47-2-1.
[25] At bottom, the possession of guns is lawful for some but not lawful for all. In
this sense, the statute prohibiting those under the age of twenty-one from
“possess[ing] an alcoholic beverage” is related to the instant statute, in that
being underage is an identifiable status and alcohol is otherwise lawful to
possess. See I.C. § 7.1-5-7-7. Related in this way, too, is the statute prohibiting
the possession of cocaine or narcotic drugs by those who lack the proper status:
holding a valid prescription.7 See I.C. § 35-48-4-6. Notably, though, in
6
See I.C. § 35-47-5-8 (providing that it is a criminal offense to possess a machine gun).
7
Of note, these status-based offenses differ in a key respect from pure possession offenses. That is, unlike the
offense of possession of child pornography, for example, where each image constitutes an additional affront
to the victim or victims, here, the possession of a gun—without more—is not illegal. See, e.g., Brown v. State,
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criminalizing the possession of certain drugs by non-prescription-holders, the
legislature expressly elevated the offense based on the quantity of drugs in
possession. See id. (providing, e.g., that the offense is a Level 4 felony if “the
amount of the drug involved is at least ten (10) but less than twenty-eight (28)
grams” and elevating the offense to a Level 3 felony if the amount is at least
twenty-eight grams). Here, however, the legislature did not provide for
elevation of the instant offense based on the quantity of firearms in possession,
just as the legislature did not elevate the offense of underage possession of
alcohol based on the quantity possessed. Yet, just because the legislature
created an elevation framework for certain offenses and not for other offenses, it
does not necessarily follow that, here, the legislature intended to create a
distinct punishable offense for each item of contraband. Rather, the lack of a
quantity-based elevation scheme does not, in and of itself, unambiguously speak
to the intended number of punishable offenses.
[26] Continuing with the principle of in pari materia, it is useful to take a closer look
at those statutes contained in Article 47, which concerns weapons and
instruments of violence, the same general subject matter as the instant statute.
Within Article 47, Indiana Code section 35-47-2-3 sets forth the process to
obtain a license to carry a handgun. This statute is closely related to the instant
statute because it involves the same subject—guns—as well as a similar object—
912 N.E.2d 881 (Ind. Ct. App. 2009) (conducting statutory interpretation and providing a thoughtful analysis
of the harms and policy concerns associated with child pornography).
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controlling who may lawfully carry them. Further, just as it is a criminal
offense for a serious violent felon to possess a firearm, it is a criminal offense to
carry a handgun without a license. See I.C. §§ 35-47-2-1, 35-47-2-3.
[27] Turning to the licensing statute, it is notable that the statute refers to the license
as a “license to carry a handgun.” See I.C. § 35-47-2-3. Indeed, the legislature
selected the singular form, not the plural “license to carry handguns.” See id.
Yet, the “license to carry a handgun” allows the licensee to carry not just one
handgun, but “any handgun lawfully possessed by the applicant.” See I.C. § 35-
47-2-3(e). Thus, in drafting a closely related statute, the legislature chose to
create a “license to carry a handgun” that is repeatedly expressed in the
singular, but nevertheless not limited to a single handgun. Given the
legislature’s choice to use the singular there and here, it would be illogical to
conclude that, here, the legislature clearly expressed the intent to establish a
separate offense for each weapon. Rather, the singular language in the licensing
statute supports the reading that the instant language—“possesses a firearm”—
extends to all firearms possessed at a given time, creating a single status offense.
[28] Ultimately, in light of these canons of construction, it is reasonable to construe
the instant statute as criminalizing—as a single punishable offense—the status
of being a serious violent felon in possession of one or more firearms.
Therefore, under the rule of lenity, the statute must be interpreted in Walton’s
favor. See Day, 57 N.E.3d at 813 (noting that statutes must be “interpret[ed] in
the defendant’s favor as far as the language can reasonably support”). Thus, I
would conclude that when a serious violent felon possesses multiple firearms,
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the possession gives rise to only one offense8 under Indiana Code section 35-47-
4-5(c), and, accordingly, only one of Walton’s SVF counts may stand.
Lesser-included Offenses
[29] The majority acknowledges that, during the sentencing hearing, the trial court
made two errors relating to the controlled-buy counts. I recognize, as the
majority does, that neither error is present in the written Sentencing Order and
Abstract of Judgment, and I agree with the majority that merger is typically
sufficient. However, immediately after the jury returned its verdict, the trial
court orally “enter[ed] judgment of conviction [on] the counts.” Tr. Vol. V at
105. Thus, given that the trial court orally entered judgment of conviction,
there were errors at the sentencing hearing concerning these counts, and there
are additional errors in this case requiring remand, I would instruct the trial
court to vacate the lesser-included offenses. Cf. Carter v. State, 750 N.E.2d 778,
781 n.8 (Ind. 2001) (“[A] claim of multiple punishment for the same offense
requires multiple judgments of conviction, entered by the trial court.”); Green v.
State, 856 N.E.2d 703. 704 (Ind. 2006) (“Where the court merges the lesser-
included offense without imposing judgment, there is no need to remand on
appeal to ‘vacate.’).
8
Notably, though, the quantity of firearms may be pertinent, not as to the number of counts, but as a
circumstance warranting an aggravated sentence. See I.C. § 35-38-1-7.1 (setting forth, without limitation,
circumstances that the trial court may consider in imposing a sentence). That is, when a serious violent felon
possesses multiple firearms, the felon has undertaken actions exceeding those that constitute the offense.
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Appellate Rule 7(B)
[30] I agree with the majority’s application of Beno and Eckelbarger. That is, given
the close nexus between the State-sponsored purchases and the State’s ability to
procure Walton’s drug-related convictions, I would also instruct the trial court
to run Walton’s drug-related counts concurrently. However, given that doing
so generates a conflict with the statutory sentencing limit and effects a notable
change to the aggregate sentence length selected by the trial court, I would defer
to the judgment of the trial court and remand for resentencing.
[31] For these reasons, I must respectfully dissent.
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