                                                                       FILED
                                                                   Dec 28 2018, 9:00 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Derick W. Steele                                          Curtis T. Hill, Jr.
Kokomo, Indiana                                           Attorney General of Indiana
                                                          Matthew B. Mackenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dion C. Cannon,                                           December 28, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          34A04-1708-CR-1784
        v.                                                Appeal from the Howard Superior
                                                          Court
State of Indiana,                                         The Honorable William C.
Appellee-Plaintiff.                                       Menges, Jr., Judge
                                                          Trial Court Cause No.
                                                          34D01-1511-F3-985



Riley, Judge.




Court of Appeals of Indiana | Opinion 34A04-1708-CR-1784 | December 28, 2018               Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Dion C. Cannon (Cannon), appeals the trial court’s

      imposition of a consecutive sentence following a guilty plea.


[2]   We affirm.


                                                     ISSUE
[3]   Cannon presents us with one issue on appeal, which we restate as: Whether the

      trial court appropriately imposed a consecutive sentence.


                      FACTS AND PROCEDURAL HISTORY
[4]   On January 16, 2014, August 17, 2015, and August 24, 2015, police officers

      with the Kokomo Police Department, assisted by confidential informants,

      engaged in several controlled buys of narcotics from Cannon. On November 5,

      2015, the State filed an Information under cause number 34D01-1511-F3-985

      (Cause F3-985), charging Cannon with three Counts of dealing a narcotic drug

      as Level 3 felonies, two Counts of dealing a narcotic drug as Level 5 felonies,

      and one Count of dealing cocaine, as a Class A felony. A warrant was issued

      under seal for Cannon’s arrest following the filing of these charges.


[5]   On November 18, 2015, officers with the Kokomo Police Department served

      the sealed arrest warrant on Cannon at his residence. When the officers

      knocked on the residence’s door, Cannon, who was alone in the house, yelled,

      “oh s***, just a minute.” Cannon v. State, 99 N.E.3d 274, 277 (Ind. Ct. App.

      2018), trans. denied. From a window, the officers observed Cannon conceal

      Court of Appeals of Indiana | Opinion 34A04-1708-CR-1784 | December 28, 2018   Page 2 of 8
      something and when he opened the door, the officers detected the odor of burnt

      marijuana. After Cannon was handcuffed and read his rights, Cannon

      admitted that “it was marijuana, and that’s all the illegal drugs that [I have] in

      the house.” Id. Based on Cannon’s statement and the smell of marijuana, the

      officers obtained a search warrant for the residence. Following evidence

      recovered during the execution of the search warrant, the State filed an

      Information under Cause number 34D01-1511-F2-1036 (Cause F2-1036),

      charging Cannon with dealing a narcotic drug as a Level 2 felony, possession of

      a narcotic drug as a Level 3 felony, neglect of a dependent as a Level 5 felony,

      theft of a firearm as a Level 6 felony, possession of marijuana as a Level 6

      felony, and maintaining a common nuisance as a Level 6 felony. After a jury

      trial, Cannon was found guilty of the Level 3 felony possession of a narcotic

      drug, Class A misdemeanor possession of marijuana, and Level 6 felony

      maintaining a common nuisance. On June 13, 2017, the trial court sentenced

      Cannon to an aggregate sentence of fifteen years. We affirmed his sentence on

      appeal.


[6]   After Cannon was convicted and sentenced under Cause F2-1036, Cannon

      entered into a plea agreement with the State in the instant Cause F3-985, in

      which he agreed to plead guilty to dealing a narcotic drug as a Level 5 felony,

      with dismissal of the remaining Counts and sentencing left to the discretion of

      the trial court. On July 25, 2017, the trial court conducted a sentencing hearing

      in Cause F3-985. At the completion of the evidence, the trial court sentenced




      Court of Appeals of Indiana | Opinion 34A04-1708-CR-1784 | December 28, 2018   Page 3 of 8
      Cannon to 1,825 days in the Department of Correction, with the sentence to

      run consecutive to the sentence imposed in Cause F2-1036.


[7]   Cannon now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
[8]   Cannon contends that the trial court abused its discretion by ordering his

      sentence to be served consecutively to an already imposed sentence in a

      separate case. This court has the constitutional authority to revise a sentence

      authorized by statute, if “after due consideration of the trial court’s decision,”

      the court finds that the sentence imposed is inappropriate in light of the nature

      of the offense and the character of the offender. See Ind. Appellate Rule 7(B).

      The question under App. R. 7(B) is “not whether another sentence is more

      appropriate” but rather “whether the sentence imposed is inappropriate.” King

      v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The burden is on the

      defendant to persuade the appellate court that his sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “Sentencing review under

      Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State, 972

      N.E.2d 864, 876 (Ind. 2012). Therefore, when reviewing a sentence, our

      principal role is to “leaven the outliers” rather than necessarily achieve what is

      perceived as the “correct” result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). We do not look to determine if the sentence was inappropriate; instead,

      we look to ensure the sentence was not inappropriate. King, 894 N.E.2d at 268.




      Court of Appeals of Indiana | Opinion 34A04-1708-CR-1784 | December 28, 2018   Page 4 of 8
[9]    In disputing his sentence, Cannon claims that, pursuant to the rationale

       advanced in Beno v. State, 581 N.E.2d 922 (Ind. 1999) and its progeny, the State

       cannot be allowed “to create State-sponsored criminal activity, cause a delay in

       criminal prosecution, and then stack charges resulting directly from the

       evidence obtained during the State-sponsored criminal activity.” (Appellant’s

       Br. p. 9). In Beno, our supreme court held that a series of undercover drug buys

       performed during a sting operation, while permissible, did not create a

       circumstance in which it would be “appropriate to then impose maximum and

       consecutive sentences for each additional violation.” Id at 924. The court

       elaborated that


               [a]s a result of this operation, Beno was hooked once. The State
               then chose to let out a little more line and hook Beno for a
               second offense. There is nothing that would have prevented the
               State from conducting any number of additional buys and
               thereby hook Beno for additional crimes with each subsequent
               sale. We understand the rationale behind conducting more than
               one buy during a sting operation, however, we do not consider it
               appropriate to then impose maximum and consecutive sentences
               for each additional violation. If Beno, for instance, had sold
               drugs to different persons, or if he had provided a different type
               of drug during each buy, the consecutive sentences imposed
               might seem more appropriate. Here, however, because the
               crimes committed where nearly identical State-sponsored buys,
               consecutive sentences were inappropriate.


       Id.


[10]   Seven years later, our supreme court expanded on Beno’s precedent in

       Eckelbarger v. State, 51 N.E.3d 169 (Ind. 2016). In Eckelbarger, the State, through

       Court of Appeals of Indiana | Opinion 34A04-1708-CR-1784 | December 28, 2018   Page 5 of 8
       an informant, purchased methamphetamine from Eckelbarger on two occasions

       and then procured a search warrant based on the informant’s buys. Id. at 170.

       During the execution of the warrant, methamphetamine precursors and

       evidence of previous manufacturing were recovered. Id. Eckelbarger was

       charged and convicted of two Counts of dealing methamphetamine by delivery,

       one Count of dealing methamphetamine by manufacture, and one Count of

       possession of precursors. Id. The two delivery Counts were to be served

       concurrent to each other, and consecutive to the manufacturing and possession

       Counts, which were in turn to be served concurrent to each other. Id. Our

       supreme court noted that “consecutive sentences are not appropriate when the

       State sponsors a series of virtually identical offenses.” Id. Moreover, under the

       same reasoning, the manufacturing and possession convictions, which “were

       supported by evidence seized pursuant to a search warrant based on the dealing

       methamphetamine by delivery Counts,” created a circumstance where the

       imposition of consecutive sentences was inappropriate. Id.


[11]   The next year, we applied these precedents on a slightly different variation of

       the facts. In Walton v. State, 81 N.E.3d 679, 680 (Ind. Ct. App. 2017), we

       analyzed the situation where the State conducted a series of controlled buys

       over several months in 2015. After concluding the controlled buys but before

       Walton was charged for his conduct, the State obtained a search warrant for

       Walton’s properties. Id. The outcome of the controlled buys resulted in

       Walton being charged with five Counts of dealing cocaine, while the execution

       of the search warrant resulted in him being charged with six additional Counts

       Court of Appeals of Indiana | Opinion 34A04-1708-CR-1784 | December 28, 2018   Page 6 of 8
       concerning dealing cocaine, conspiracy to commit dealing in cocaine,

       maintaining a common nuisance, and two Counts of possession of a firearm by

       a serious violent felon. Id. Walton was convicted on all Counts, and the trial

       court imposed a 34-year sentence for the controlled buys, and a 30-year

       sentence for the charges resulting from the search warrant for an aggregate,

       consecutive sentence of 64 years. Id. Mindful of our supreme court’s

       Eckelbarger decision, we held that because the controlled buys led to a search of

       Walton’s properties, which, in turn, resulted in additional charges and

       convictions that were supported by “evidence seized as a direct result of the

       controlled buys,” the drug-related convictions resulting from the search warrant

       could not be imposed consecutively to the convictions resulting from the

       controlled buys. Id. at 683.


[12]   Based on the facts before us, we conclude that Beno and its progeny are

       inapposite to the instant Cause because the search warrant which supported the

       charges in Cause F2-1036 was not obtained in furtherance of an ongoing

       investigation but rather was requested based on the independent observations of

       police officers. The evidence reflects that after law enforcement officers

       wrapped up a month-long investigation, including a series of undercover buys,

       the State filed charges, and a sealed warrant was issued for Cannon’s arrest.

       Accordingly, the investigation was completed and Cause F3-985 was initiated.

       When the police officers served the warrant, they were not focusing on new

       buys or on a search of the residence; rather, they attempted to execute Cannon’s

       arrest. However, upon contacting Cannon, the officers detected the odor of


       Court of Appeals of Indiana | Opinion 34A04-1708-CR-1784 | December 28, 2018   Page 7 of 8
       marijuana, whereupon Cannon made some incriminating statements. Based on

       the officers’ observations and Cannon’s admissions, the officers applied for and

       obtained a search warrant. As a result of the evidence gathered during the

       execution of the search warrant, a new Information was filed in Cause F2-1036.

       Accordingly, the charges in Cause F2-1036 are derived from actions

       independent and distinct from the charges in Cause F3-985 and are not a

       continuation of the earlier charges. As no close nexus exists between the State-

       sponsored purchases and the State’s charges derived from the execution of the

       search warrant, Beno and its progeny are distinguishable and the trial court did

       not abuse its discretion by imposing consecutive sentences.


                                              CONCLUSION
[13]   Based on the foregoing, we conclude that the trial court’s imposition of

       consecutive sentences is not inappropriate pursuant to Indiana Appellate Rule

       7(B).


[14]   Affirmed.


[15]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Opinion 34A04-1708-CR-1784 | December 28, 2018   Page 8 of 8
