FOR PUBLICATION


ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

LISA M. TRAYLOR-WOLFF                       GREGORY F. ZOELLER
Logansport, Indiana                         Attorney General of Indiana

                                            ANDREW R. FALK
                                            Deputy Attorney General
                                            Indianapolis, Indiana
                                                                          FILED
                                                                      Feb 26 2013, 8:58 am

                              IN THE
                                                                               CLERK
                    COURT OF APPEALS OF INDIANA                              of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




PEDRO ALVAREZ,                              )
                                            )
     Appellant-Defendant,                   )
                                            )
              vs.                           )        No. 09A02-1203-CR-241
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                     APPEAL FROM THE CASS SUPERIOR COURT
                         The Honorable Rick Maughmer, Judge
                             Cause No. 09D02-0403-FB-5


                                 February 26, 2013

                            OPINION – FOR PUBLICATION

PYLE, Judge
                                STATEMENT OF THE CASE

          Pedro Alvarez (“Alvarez”) appeals his convictions and sentence for two counts of

Class B felony dealing in cocaine. 1

          We affirm in part, reverse in part and, remand.

                                            ISSUES

          1. Whether the trial court erred in admitting a mug shot of Alvarez.

          2. Whether the trial court’s order of consecutive sentences for his
             convictions is appropriate.
                                         FACTS

          In October of 2003, Kendall Kerschner (“Kerschner”) contacted Detective Jeff

Schnepp (“Detective Schnepp”) of the Cass County Drug Task Force regarding the sale

of crack cocaine by Alvarez. On February 25, 2004, Kerschner, acting as a confidential

informant, along with other officers on the task force, conducted a controlled drug buy

from Alvarez. Kerschner called Alvarez and arranged a meeting at Alvarez’s apartment.

Before leaving task force headquarters, Detective Schnepp searched Kerschner for any

contraband and found none. Kerschner received buy money and was outfitted with an

audio transmitter.

          Detective Schnepp drove Kerschner to the area of Alvarez’s apartment and

dropped him off. Detective Schnepp then parked his vehicle in a spot where he was able

to watch Kerschner enter and exit Alvarez’s apartment. Kerschner gave Alvarez $150; in

exchange, Alvarez gave Kerschner three rocks of crack cocaine. Kerschner returned to

Dectective Schnepp’s vehicle and gave him the cocaine.

1
    Ind. Code § 35-48-4-1.
                                               2
       On February 26, 2004, Detective Schnepp used Kerschner again as a confidential

informant and conducted another controlled drug buy using the same procedures.

Kerschner again gave Alvarez $80, and Alvarez gave Kerschner crack cocaine.

       On March 1, 2004, the State charged Alvarez with two counts of dealing in

cocaine, as Class B felonies. On May 10, 2006, a jury trial was held. Having received

notice of the trial date, Alvarez failed to appear. In place of in-court identification, the

State used a redacted mug shot of Alvarez. The jury found Alvarez guilty of both counts

of dealing in cocaine.

       Eventually, Alvarez was arrested in Mississippi and a sentencing hearing was held

on February 27, 2012.      Finding that the aggravating circumstances outweighed the

mitigating circumstances, the trial court sentenced Alvarez to twenty (20) years executed

on both counts, to be served consecutively in the Department of Correction.

                                        DECISION

1. Admissibility of Mug Shot

       Alvarez argues that the trial court erred in allowing the State to introduce his mug

shot into evidence. Alvarez asserts that the manner in which the State admitted the

photograph caused him undue prejudice. We disagree.

       “Appellate review of admissibility determinations by the trial court is for abuse of

discretion, and reversal is appropriate only where the decision is clearly against the logic

and effect of the facts and circumstances.” Joyner v. State, 678 N.E.2d 386, 390 (Ind.

1997). “Generally, evidence of a defendant’s prior criminal history is highly prejudicial

and is not admissible.” Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001). “The

                                             3
admission of a photo array or fingerprint evidence can lead jurors to conclude that a

defendant has previously been arrested.” Id. But, our Indiana Supreme Court has held

that mug shots are admissible if they are not (1) unduly prejudicial and (2) if they have

substantial independent probative value. Wisehart v. State, 693 N.E.2d 23, 47 (Ind.

1998).     Further, we have held that where a defendant fails to appear at trial, the

defendant’s mug shot has substantial probative value for the purpose of proving identity.

See McHenry v. State 401 N.E.2d 745, 749 (Ind. Ct. App. 1980), trans. denied.

         Here, the State introduced the mug shot so that witnesses could identify Alvarez as

the person who sold cocaine to the confidential informant. However, the Cass County

Sheriff’s Department only possessed a photograph of Alvarez from a prior arrest and not

his current case. The mug shot was redacted to remove references to the prior arrest. We

also note that neither the State nor its witnesses referred to the origin of the mug shot. In

fact, the only implication that the photo came from a prior arrest arose through the

questioning and argument of Alvarez’s defense counsel. (Tr. 185, 227). Finally, had

Alvarez simply appeared for his trial, there would have been no reason to admit the mug

shot. With these facts and circumstances, we find no abuse of discretion with the trial

court’s admission of the mug shot.

2. Inappropriate Sentence

         Alvarez also argues that his sentence was inappropriate. Here, we agree, and the

State concedes, that Alvarez’s sentence was inappropriate. In Beno v. State, 581 N.E.2d

922 (Ind. 1991), our Supreme Court held that where a defendant is convicted of multiple

acts of dealing narcotics arising from sting operations contained in the same

                                              4
investigation, maximum and consecutive sentences were not appropriate for each act. In

these types of investigations, the State controls the number of opportunities presented to a

defendant to engage in criminal conduct. As a result, “stacking” the individual counts

has been deemed inappropriate. We held the same in Rios v. State, 930 N.E.2d 664 (Ind.

Ct. App. 2010) (holding that consecutive sentences for two counts based on almost

identical police-sponsored buys was inappropriate), and Bell v. State, 881 N.E.2d 1080

(Ind Ct. App. 2008), trans denied (holding that maximum consecutive sentences for three

controlled buys in the same investigation was inappropriate).

       “When we find an irregularity in the trial court’s sentencing decision, we may

remand to the trial court for a clarification or a new sentencing determination, or affirm

the sentence if the error is harmless, or impose a proper sentence.” Rios, 930 N.E2d at

669. We elect to impose a proper sentence pursuant to Beno; Alvarez’s sentences shall

run concurrently and not consecutively. All other aspects of the sentence are affirmed.

We remand to the trial court with instructions to enter a new sentencing order and

abstract of judgment consistent with this opinion.

       Affirmed in part, reversed in part, and remanded.

FRIEDLANDER, J., and BROWN, J., concur.




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