Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

STEVEN KNECHT                                      GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                         Attorney General of Indiana
Lafayette, Indiana
                                                   BRIAN REITZ
                                                   Deputy Attorney General

                                                                                 FILED
                                                   Indianapolis, Indiana

                                                                             Sep 24 2012, 9:32 am
                               IN THE
                                                                                      CLERK
                     COURT OF APPEALS OF INDIANA                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




ANDREW HUMPHREYS,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 79A04-1112-CR-677
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Randy J. Williams, Judge
                               Cause No. 79D01-0912-FB-48



                                       September 24, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Andrew Humphreys (“Humphreys”) appeals his convictions of and sentences for

conspiracy to manufacture methamphetamine1 as a Class B felony, dealing in

methamphetamine2 as a Class B felony, illegal drug lab3 as a Class D felony, and a habitual

offender adjudication, contending that there is insufficient evidence to sustain his habitual

offender adjudication, that his convictions for dealing in methamphetamine and possession of

precursors (“illegal drug lab”) violate double jeopardy principles, and that he was entitled to

discharge under Indiana Rule of Criminal Procedure 4(B) due to the trial court’s scheduling

of his trial. Sua sponte, we examine whether the trial court erred by entering a separate

conviction and sentence for Humphreys’s habitual offender adjudication.

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

                               FACTS AND PROCEDURAL HISTORY

       Law enforcement officers from various law enforcement agencies began surveillance

of Humphreys on December 10, 2009. On that day and the next, the officers followed

Humphreys and Adam Williams (“Williams”) while the two drove in Humphreys’s white

Jeep Cherokee to various places. In particular, Humphreys and Williams went to two or

three Wal-Marts, two Payless grocery stores, a CVS pharmacy, a Marsh grocery store, and a

Walgreen’s, each in Tippecanoe County. Later, the officers returned to the stores where

Humphreys had shopped, and obtained the stores’ pseudoephedrine logs.                     The



       1
           See Ind. Code §§ 35-41-5-2; 35-48-4-1.1.
       2
           See Ind. Code § 35-48-4-1.1.
       3
           See Ind. Code § 35-48-4-14.5(b).

                                                      2
pseudoephedrine logs showed that Humphreys and Williams had purchased 2.88 grams from

Wal-Mart, 5.05 grams from CVS, 7.44 grams from Walgreen’s, two packages from Payless,

and three packages from Marsh, for a total in excess of ten grams of pseudoephedrine.

       After Humphreys and Williams made the pseudoephedrine purchases, law

enforcement officers observed Humphreys and Williams go to Leslie Mantle’s (“Mantle”)

residence, which included a house and a pole barn. Humphreys and Williams walked back

and forth between the house and the pole barn several times, and on one occasion carried a

duffle bag to the pole barn. Humphreys and Williams left Mantle’s residence between 1:00

a.m. and 1:30 a.m.

       Lafayette Police Lieutenant Gregory Dale (“Lieutenant Dale”) initiated a traffic stop

of Humphreys’s vehicle because it was traveling seventy-five miles per hour in a fifty miles-

per-hour zone. A canine, which was at the scene, alerted on Humphreys’s vehicle, and the

officer conducted a vehicle search. Six lithium batteries, coffee filters, and a clutch fluid

bottle were found. Lieutenant Dale issued a verbal warning to Humphreys, after which

Humphreys and Williams returned to Mantle’s residence at about 3:30 a.m. The two walked

back and forth between the house and the pole barn, eventually leaving after approximately

forty-five minutes.

       On December 11, 2009, at approximately 8:35 a.m., Tippecanoe Sheriff’s Department

Lieutenant Daniel McGrew (“Lieutenant McGrew”) arrived at Mantle’s residence and spoke

with him on the front porch. Mantle consented to a search of the pole barn, but refused a

search of his house. Based on the potential methamphetamine production in the pole barn,


                                             3
Lieutenant McGrew secured a search warrant for Mantle’s residence. During the search of

Mantle’s house, officers discovered a marijuana grow operation in the basement, multiple

firearms, signs of methamphetamine manufacturing in the basement, plastic baggies with

residue, strainers, and a grinding bowl. A pitcher and glass jar were found inside Mantle’s

house. One of those items was tested by the Indiana State Police Crime Laboratory and was

found to contain methamphetamine and pseudoephedrine or ephedrine.

       Law enforcement officers called the fire department prior to the search of the pole

barn because of fumes emanating from inside the barn. During the search of the pole barn,

law enforcement officers found a tank containing ammonia, a Coleman fuel can, a glass Ball

jar, four hydrogen chloride gas (“HCL”) generators/plastic bottles that tested positive for

hydrochloric gas, a duffle bag containing items used to manufacture methamphetamine, a

wooden stick with crushed pill dough, lithium battery strip remnants, two bottles of heat,

plastic tubing, a tool box, folded up aluminum foil with burnt residue, funnels, drain opener,

a wood pile with white pill dough residue, and an active cooking reactionary vessel

containing ammonia.

       Mantle recalled that Williams had come to his house that evening wanting to store

some items in Mantle’s pole barn. Williams offered to pay Mantle, and Mantle agreed.

Humphreys later asked to store some items in Mantle’s basement, but Mantle refused. When

Mantle went outside and stood on his porch, he smelled ammonia. He asked Humphreys

about the smell. Humphreys stated “we’re making meth, dumbass.” Tr. at 896.




                                              4
       Humphreys was arrested on December 14, 2009 and was charged with conspiracy to

manufacture methamphetamine, dealing in methamphetamine, possession of more than ten

grams of pseudoephedrine or phenylpropanolamine, possession of anhydrous ammonia or an

ammonia solution with intent to manufacture methamphetamine, possession of precursors

with intent to manufacture methamphetamine, or illegal drug lab, and an habitual offender

allegation.

       At his initial hearing on December 17, 2009, Humphreys made a verbal request for a

speedy trial, and then filed a hand-written pro se request on December 21, 2009. On

December 28, 2009, the trial court ordered Humphreys’s motion to be forwarded to

Humphreys’s counsel. His counsel filed an appearance in the case the next day. On January

22, 2010, Humphreys’s counsel agreed to a jury trial date of March1 16, 2010, reaffirming

the dates previously scheduled. During a February 8, 2010, status hearing, Humphreys

requested a speedy trial. The trial court stated that the March 16, 2010 jury trial date had

been previously reaffirmed by counsel.

       On February 10, 2010, Humphreys was released on his own recognizance. The State

explained that Humphreys would likely be taken back into the custody of the Department of

Correction, because Humphreys was on parole at the time of the commission of the present

offenses. On May 25, 2010, Humphreys filed a motion for discharge pursuant to Indiana

Criminal Rule 4(B), which the trial court denied. Humphreys filed a pro se request to certify

the order for interlocutory appeal. The trial court granted the request, and this Court declined

jurisdiction.


                                               5
       A jury found Humphreys guilty of conspiracy to manufacture methamphetamine,

dealing in methamphetamine, and illegal drug lab on September 2, 2011. On October 28,

2011, the trial court found Humphreys to be an habitual offender. The trial court sentenced

Humphreys to an aggregate thirty-six-year sentence, with thirty years executed in the

Department of Correction, with eight years of that sentence to be served in community

corrections, and six years suspended to probation. Humphreys now appeals.

                             DISCUSSION AND DECISION

       Humphreys asserts that the trial court’s scheduling of his jury trial entitled him to

discharge under Indiana Rule of Criminal Procedure 4(B). He claims that the trial court erred

by denying his motion for discharge because the State failed to bring him to trial within

seventy days. We review de novo a trial court’s denial of a motion to discharge a defendant.

Kirby v. State, 774 N.E.2d 523, 530 (Ind. Ct. App. 2002), trans. denied.

       Our Supreme Court has reiterated the following about Indiana Criminal Rule 4(B):

       Both the U.S. and Indiana Constitutions protect the right of an accused to a
       speedy trial. U.S. Const. Amend. IV; Ind. Const. art. 1, § 12. The speedy-trial
       right is a “‘fundamental principle of constitutional law’” that has been
       zealously guarded by our courts. Clark v. State, 659 N.E.2d 548, 551 (Ind.
       1995) (quoting Castle v. State, 237 Ind. 83, 85, 143 N.E.2d 570, 572 (1957)).

       Indiana Criminal Rule 4 generally implements the constitutional right of an
       accused to a speedy trial. Bridwell v. State, 659 N.E.2d 552, 553 (Ind. 1995).
       Subsection (B) of the Rule is at issue, and it provides, in part, that “[i]f any
       defendant held in jail on an indictment or an affidavit shall move for an early
       trial, he shall be discharged if not brought to trial within seventy (70) calendar
       days from the date of such motion.” Ind. Crim. Rule 4(B)(1). The Rule
       continues by listing conditions that excuse a failure to bring an accused to trial
       within the seventy-day timeframe. Id.



                                               6
       It is well established that Criminal Rule 4 places an “affirmative duty” on the
       State to bring a defendant to trial. Curtis v. State, 948 N.E.2d 1143, 1151 (Ind.
       2011). By the same token, the purpose of Criminal Rule 4 is not to provide
       defendants with a technical means to avoid trial but rather to assure speedy
       trials. Loyd v. State, 272 Ind. 404, 410, 398 N.E.2d 1260, 1266 (1980).

Cundiff v. State, 967 N.E.2d 1026, 1027-28 (Ind. 2012) (internal footnotes omitted).

       Defendants must maintain a position reasonably consistent with a request for a speedy

trial and must object, as soon as possible, to a trial setting beyond the seventy-day time period

provided for by rule. McKay v. State, 714 N.E.2d 1182, 1188-89 (Ind. Ct. App. 1999).

When a defendant fails to object, he is deemed to have acquiesced in the trial date and to

have abandoned his request for a speedy trial. Id. at 1189. In this case, Humphreys made pro

se speedy trial motions prior to the appointment of counsel. After Humphreys was

represented by counsel, the record reflects that counsel explicitly reaffirmed the trial date

outside the seventy-day period. Thus, Humphreys acquiesced to that date.

       Assuming for the sake of argument that Humphreys did not acquiesce to the trial date,

his claim still fails. Humphreys was released on his own recognizance prior to trial. “Once

released from custody, a defendant receives no further benefit from Crim. R. 4(B).” Mork v.

State, 912 N.E.2d 408, 410-11 (Ind. Ct. App. 2009) (quoting Williams v. State, 631 N.E.2d

485, 486-87 (Ind. 1994)). As our Supreme Court stated in Cundiff, “for Rule 4(B) to apply,

the defendant must be incarcerated on the charge for which he seeks a speedy trial, and as

long as that requirement is met, the availability of Rule 4(B) is not affected if the defendant is

also incarcerated on other grounds.” 967 N.E.2d at 1031. Here, Humphreys was released on

the current charges, but was incarcerated because the parole board initiated revocation


                                                7
proceedings related to his parole on a previous unrelated sentence. Thus, the trial court did

not err by denying Humphreys’s motion for discharge.

       Next, Humphreys asserts that there is insufficient evidence to support his habitual

offender adjudication. In particular, Humphreys argues that the adjudication cannot be used

to enhance any of the sentences for his offenses.

       We expressed our standard of review on this issue in Woods v. State, 939 N.E.2d 676,

677 (Ind. Ct. App. 2010) as follows:

       Upon a challenge to the sufficiency of the evidence for an habitual offender
       determination, the appellate court neither reweighs the evidence nor judges the
       credibility of the witnesses; rather, we examine only the evidence most
       favorable to the judgment, together will all of the reasonable and logical
       inferences to be drawn therefrom. The habitual offender determination will be
       sustained on appeal so long as there is substantial evidence of probative value
       supporting the judgment.

(internal citations omitted).

       The sentence of a person convicted of a felony may be enhanced by up to 30 years if

he or she is an habitual offender. Ind. Code §35-50-2-8(h). The habitual offender

enhancement is available where the State proves beyond a reasonable doubt that the

defendant previously has been convicted of two unrelated felonies. I.C. §35-50-2-8(a), (g).

Pursuant to Indiana Code section 35-50-2-8(c), (1) the second prior unrelated felony must be

committed after sentencing for the first prior unrelated felony conviction; and (2) the offense

for which the State seeks to have the person sentenced as an habitual offender must be

committed after sentencing for the second prior unrelated felony conviction.




                                              8
       Here, Humphreys was convicted of conspiracy to manufacture methamphetamine as a

Class B felony. The trial court found that the State proved during the habitual offender phase

of the trial that Humphreys had three prior unrelated felony convictions. The State

established that he was convicted of burglary as a Class B felony in 1995, battery on a law

enforcement officer as a Class D felony in 2002, and robbery as a Class C felony in 2006.

Thus, Humphreys’s habitual offender adjudication was supported by sufficient evidence, viz.,

he was convicted of a felony in the first phase of the trial and had three prior unrelated felony

convictions.

       Humphreys asserts, however, that the limiting section of Indiana Code section 35-50-

2-8(b)(3) makes an habitual offender adjudication inapplicable to him. That subsection limits

the application of the general habitual offender rule when the instant offense is a drug

offense.   The State correctly notes that Humphreys was convicted of conspiracy to

manufacture methamphetamine, and contends that the habitual offender adjudication is

proper. Our Supreme Court addressed this issue in Owens v. State, 929 N.E.2d 754, 756-57

(Ind. 2010), and the language pertinent to the issue follows:

       Well-settled Indiana law provides that the conspiracy to commit a felony is a
       distinct offense from the contemplated felony. The crime of conspiracy to
       commit a felony has three elements: 1) the intent to commit a felony, 2) an
       agreement with another person to commit a felony, and 3) an overt act,
       performed by either the defendant or the person with whom the defendant has
       entered into the agreement. A conspiracy is complete upon the agreement and
       the performance of an overt act in furtherance of the agreement. The overt act
       need not rise to the level of a substantial step required for an attempt to commit
       the felony. A defendant may therefore be convicted of a conspiracy to commit
       a felony without committing the felony and without even an attempt to commit
       it.


                                               9
       The overt act in furtherance of a conspiracy to deal a controlled substance
       often also supports a dealing conviction. But an overt act that supports a
       conspiracy conviction may fall short of the possession, manufacturing, or
       delivery of a controlled substance necessary for the underlying offense.
       Because conspiracy to deal is a separate offense and is not listed along with
       dealing among the nonsuspendable offenses, Huff held that conspiracy to deal
       is not nonsuspendable under I.C. 35-50-2-2. We agree and find the same
       reasoning applicable here. More generally, conspiracy was viewed as a lesser
       crime at common law, and most jurisdictions punish a conspiracy less severely
       than the target offense. Penal laws are to be construed strictly. We therefore
       cannot equate conspiracy to deal with the dealing offenses found in Subsection
       8(b)(3)(C). In sum, we hold that a conviction for conspiracy to deal is not the
       same as a conviction for dealing for purposes of the general habitual offender
       enhancement statute found in I.C. 35-50-2-8.

(internal quotations, citations, and parentheticals omitted). Applying that rationale, we

conclude that Humphreys could be adjudicated an habitual offender because he was

convicted of conspiracy to manufacture methamphetamine, which is not a drug offense for

purposes of Indiana Code section 35-50-2-8(b)(3).

       However, an examination of the trial court’s sentencing statement leads us to the

conclusion that the trial court erred by treating the habitual offender adjudication as a

separate crime for which a separate sentence could be imposed. The trial court sentenced

Humphreys to a term of twenty years for his conspiracy to manufacture methamphetamine

conviction, twenty years for his dealing in methamphetamine conviction, three years for his

illegal drug lab conviction, and “a period of sixteen (16) [years] for the crime of Habitual

Offender, as charged in Count IV, a sentence enhancement.” Appellant’s App. at 258. The

sentencing statement further provided that “Counts I, II, and III of said sentences of

imprisonment shall run concurrently for a total sentence of thirty-six (36) years.” Id.

       Our Supreme Court has stated the following about habitual offender adjudications:

                                             10
       A habitual offender finding does not constitute a separate crime nor result in a
       separate sentence, but rather results in a sentence enhancement imposed upon
       the conviction of a subsequent felony. In the event of simultaneous multiple
       felony convictions and a finding of habitual offender status, trial courts must
       impose the resulting penalty enhancement upon only one of the convictions
       and must specify the conviction to be so enhanced.

Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997) (internal citations omitted).

       Here, the trial court adjudicated Humphreys to be an habitual offender and determined

the sentence to be imposed, sixteen years, but failed to specify which felony conviction was

to be enhanced by this penalty enhancement. Therefore, we reverse this portion of the trial

court’s sentencing statement and remand with instructions that the trial court shall specify

which of Humphreys’s sentences is enhanced by the habitual offender adjudication.

       Humphreys claims that the trial court erred by entering judgment of conviction and

sentencing him for dealing in methamphetamine and illegal drug lab because they violate

double jeopardy principles under the Indiana Constitution. He claims that his illegal drug lab

conviction, which is established by the possession of precursors, must be vacated because it

is a lesser-included offense of dealing in methamphetamine.

       The Indiana Double Jeopardy Clause provides, “No person shall be put in jeopardy

twice for the same offense.” Ind. Const. art. I, §14. We analyze alleged violations of this

clause pursuant to our Supreme Court’s opinion in Richardson v. State, 717 N.E.2d 32 (Ind.

1999). In Richardson, our Supreme Court held that “two or more offenses are the ‘same

offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to

either the statutory elements of the challenged crimes or the actual evidence used to convict,

the essential elements of one challenged offense also establish the essential elements of

                                              11
another challenged offense.” 717 N.E.2d at 49 (emphasis in original). We review whether

multiple convictions violate the prohibition against double jeopardy de novo as it is a

question of law. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005).

       Indiana Code section 35-38-1-6 provides that if a defendant is charged with an offense

and an included offense in separate counts and is found guilty of both counts, judgment and

sentence may not be entered against the defendant for the included offense. “A lesser

included offense is necessarily included within the greater offense if it is impossible to

commit the greater offense without first having committed the lesser.” Iddings v. State, 772

N.E.2d 1006, 1016 (Ind. Ct. App. 2002) (citing Zachary v. State, 469 N.E.2d 744, 749 (Ind.

1984)). “If each offense is established by proof of an element not contained in the other,

Indiana Code section 35-38-1-6 does not preclude conviction and sentence for both

offenses.” Id. at 1017 (quoting Ingram v. State, 718 N.E.2d 379, 381 (Ind. 1999)). For

purposes of Indiana Code section 35-38-1-6, our review requires a careful examination of the

facts and circumstances of each particular case. Id.

       In the present case, Humphreys was found with completed methamphetamine and

various other items used to manufacture methamphetamine. In particular, in proximity to the

pole barn, law enforcement officers found a tank containing ammonia, a Coleman fuel can, a

glass Ball jar, four HCL generators/plastic bottles that tested positive for hydrochloric gas,

crushed pill dough, lithium battery strip remnants, two bottles of heat, plastic tubing, a tool

box, folded up aluminum foil with burnt residue, funnels, and an active reactionary vessel

containing ammonia.        Humphreys had also purchased more than ten grams of


                                              12
pseudoephedrine in a matter of hours. Unlike the factual setting in Bush v. State, 772 N.E.2d

1020 (Ind. Ct. App. 2002), where no completed methamphetamine was found, thus requiring

one of the convictions to be vacated, in this case, there was evidence of completed

methamphetamine and precursors. No double jeopardy violation was found in Iddings

because there was evidence of completed methamphetamine and precursors that could be

used to manufacture more methamphetamine, thereby establishing the commission of two

independent offenses. 772 N.E.2d at 1017. Consequently, there is no double jeopardy

violation by the trial court’s entry of judgment of conviction and sentence for dealing in

methamphetamine and illegal drug lab, as there was evidence that Humphreys had committed

both offenses.

       Affirmed in part, reversed in part, and remanded with instructions.

NAJAM, J., and MAY, J., concur.




                                             13
