MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                               Oct 30 2019, 9:11 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
Donald E. C. Leicht                                      Curtis T. Hill, Jr.
Peru, Indiana                                            Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marcus Noy,                                              October 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-820
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Judge
                                                         Trial Court Cause No.
                                                         34D01-1707-F2-820



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019                 Page 1 of 7
                                           Statement of the Case
[1]   Marcus Noy (“Noy”) appeals the sentence imposed after a jury convicted him

      of Level 2 felony dealing in cocaine;1 Level 3 felony possession of a narcotic

      drug;2 and Level 3 felony possession of cocaine.3 He argues that the trial court

      abused its discretion in denying trial counsel’s motion to withdraw and also

      asks this Court to remand the case to the trial court for clarification of his

      sentence. Concluding that: (1) the trial court did not abuse its discretion in

      denying trial counsel’s motion to withdraw; and (2) there is a conflict between

      the trial court’s oral sentencing statement and the written sentencing statement,

      we affirm and remand with instructions for the trial court to clarify the sentence

      that it intended to impose.


[2]   Affirmed and remanded with instructions.


                                                     Issues
                 1.           Whether the trial court abused its discretion in denying
                              trial counsel’s motion to withdraw.

                 2.           Whether this case should be remanded to the trial court for
                              clarification of Noy’s sentence.




      1
          IND. CODE § 35-48-4-1.
      2
          I.C. § 35-48-4-6.
      3
          Id.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019    Page 2 of 7
                                                  Decision
[3]   In June 2017, Noy was a long-term guest at the Baymont Inn in Kokomo.

      While cleaning his room, a housekeeper observed on the nightstand a bag

      containing a white powdered substance. The housekeeper contacted the hotel

      manager, who found in the room another bag containing a white powered

      substance. The manager contacted law enforcement officials, who obtained a

      warrant to search the room. During the search, law enforcement officials found

      296 grams of compressed heroin, 52 grams of cocaine, a digital scale covered in

      white residue, Noy’s credit card that also had a white residue on it, and a

      cutting agent.


[4]   The State charged Noy with Count 1, Level 2 felony dealing in a narcotic drug

      (heroin); Count 2, Level 2 felony dealing in cocaine; Count 3, Level 3 felony

      possession of a narcotic drug (heroin); and Count 4, Level 3 felony possession

      of cocaine. Private counsel (“private counsel”) represented Noy at trial. A jury

      convicted Noy of Level 2 felony dealing in cocaine, Level 3 felony possession of

      a narcotic drug, and Level 3 felony possession of cocaine, and acquitted him of

      Level 2 felony dealing in a narcotic drug.


[5]   In February 2019, after the trial, but before the sentencing hearing, Noy sent a

      letter to the trial court. In the letter, Noy explained that although he had paid

      private counsel to represent him, counsel was “the reason why [Noy] was found

      guilty.” (App. 32). According to Noy, counsel “did none of the things [Noy

      had] asked.” (App. 32). Specifically, Noy explained that he had asked counsel

      “to file a suppression motion about the hotel maids entering [his] room illegally
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019   Page 3 of 7
      and about hotel policy about the maids cleaning a room that [was] occupied.”

      (App. 32). Noy, who believed that he would not have been convicted had the

      motion been filed, asked the trial court to appoint a public defender for the

      sentencing hearing.


[6]   In response to Noy’s letter, private counsel filed a motion to set a counsel status

      hearing, which the trial court granted. At the hearing, private counsel told the

      trial court that based on Noy’s letter, private counsel believed that there had

      been a breakdown in the attorney and client relationship. Private counsel

      tendered a motion to withdraw his appearance. The State took no position on

      the motion. The trial court explained that Noy did not have the right to have a

      public defender appointed for the sentencing hearing “simply because [he did

      not] like the way that [private counsel had] handled the trial.” (Tr. Vol. 2 at

      170-71). The trial court further explained that there had “been absolutely

      nothing that the Court ha[d] seen to show that [private counsel was] either

      ineffective or unethical or violated anything else.” (Tr. Vol. 2 at 171).

      According to the trial court, it “s[aw] no reason to discharge [private counsel]

      simply because [Noy . . . ] didn’t like the outcome of the trial.” (Tr. Vol. 2 at

      171). The trial court instructed Noy to choose whether he wanted to represent

      himself or be represented by private counsel. After some discussion, Noy

      decided that he wanted to proceed with private counsel at the sentencing

      hearing. Accordingly, the trial court denied private counsel’s motion to

      withdraw, and private counsel represented Noy at the sentencing hearing the

      following day.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019   Page 4 of 7
[7]    After hearing testimony at the sentencing hearing, the trial court vacated the

       conviction for Level 3 felony possession of cocaine for double jeopardy reasons.

       Thereafter, the trial court orally sentenced Noy to thirty (30) years executed for

       Level 2 felony dealing cocaine conviction and sixteen (16) years for the Level 3

       felony possession of a controlled substance conviction. The trial court ordered

       the sentences to run consecutively to each other and suspended the sixteen (16)

       year sentence to supervised probation.


[8]    A few days later, the trial court issued a written sentencing order wherein it

       sentenced Noy to thirty (30) years executed for the Level 2 felony dealing

       cocaine conviction and sixteen (16) years for the Level 3 possession of a

       controlled substance conviction. However, the trial court ordered the sixteen

       (16) year sentence to be served in the Department of Correction rather than on

       probation. Noy now appeals.


                                                   Decision
[9]    Noy argues that the trial court abused its discretion in denying private counsel’s

       motion to withdraw. He also asks this Court to remand the case to the trial

       court for clarification of his sentence. We address each of his arguments in

       turn.


       1. Motion to Withdraw


[10]   Noy first argues that the trial court abused its discretion in denying private

       counsel’s motion to withdraw. However, Noy has waived appellate review of

       this issue because his brief, conclusory argument is supported neither by citation
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019   Page 5 of 7
       to authority nor cogent argument. See Smith v. State, 822 N.E.2d 193, 202-03

       (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal

       where the party fails to develop a cogent argument or provide adequate citation

       to authority and portions of the record.”), trans. denied.


[11]   Waiver notwithstanding, we find no error. Whether to allow counsel to

       withdraw is within the trial court’s discretion, and we will reverse only “when

       denial constitutes a clear abuse of discretion and prejudices the defendant’s

       right to a fair trial.” Strong v. State, 633 N.E.2d 296, 300 (Ind. Ct. App. 1994).

       A defendant must demonstrate that he was prejudiced before we may reverse

       on this issue. Bronaugh v. State, 942 N.E.2d 826, 830 (Ind. Ct. App. 2011), trans.

       denied. Here, Noy has failed to allege or demonstrate that private counsel’s

       continued representation at sentencing prejudiced him. The trial court did not

       abuse its discretion in denying counsel’s motion to withdraw.


       2. Clarification of Noy’s Sentence


[12]   Noy also asks this Court to remand the case to the trial court for clarification of

       his sentence. The State agrees with Noy’s request. Our review of the

       sentencing statements reveals that in the oral sentencing statement, the trial

       court ordered Noy’s sixteen (16) year sentence for Level 3 possession of a

       controlled substance to be suspended to probation. However, in its written

       sentencing statement, the trial court ordered Noy to serve the sixteen (16) year

       sentence in the Department of Correction. Where, as here, we are confronted

       with a conflict between the oral sentencing statement and the written sentencing


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019   Page 6 of 7
       statement, we may remand for clarification. See Weston v. State, 2019 WL

       4783480 (Ind. Ct. App. October 1, 2019). Accordingly, we remand with

       instructions for the trial court to clarify whether it intended for Noy to serve the

       sixteen (16) year sentence on supervised probation or in the Department of

       Correction.4


[13]   Affirmed and remanded with instructions.


       Robb, J., and Mathias, J., concur.




       4
         Noy also argues that the trial court erred in ordering his sentences to run consecutively to each other and
       that his aggregate sentence is inappropriate. However, because we are remanding the case to the trial court
       for a clarification of Noy’s sentence, we need not address these issues.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019                     Page 7 of 7
