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.




Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017           Page 1 of 12
                                       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


      Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017   Page 2 of 12
      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:



      Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017   Page 3 of 12
                      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):


      Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017   Page 4 of 12
              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




      Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017   Page 5 of 12
      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).

      Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017                 Page 6 of 12
       “[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:


       Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017   Page 7 of 12
               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.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017   Page 8 of 12
       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.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017                Page 9 of 12
       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:


       Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017   Page 10 of 12
               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

       Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017   Page 11 of 12
       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.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1611-CR-2730 | May 31, 2017   Page 12 of 12
