MEMORANDUM DECISION                                                            FILED
                                                                          Apr 22 2016, 6:31 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                               CLERK
this Memorandum Decision shall not be                                      Indiana Supreme Court
                                                                              Court of Appeals
regarded as precedent or cited before any                                       and Tax Court

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
Kurt A. Young                                            Gregory F. Zoeller
Nashville, Indiana                                       Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Patrick Cummings,                                        April 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1509-CR-1472
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,
                                                         The Honorable Shatrese M.
Appellee-Plaintiff                                       Flowers, Judge

                                                         The Honorable David Seiter,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1312-FB-79001



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1472 | April 22, 2016              Page 1 of 3
[1]   Patrick Cummings was charged with and convicted of class B felony dealing in

      cocaine and class D felony possession of cocaine based on a single sale to

      undercover officers in December 2013. The trial court entered judgment of

      conviction on both counts, “merge[d]” them for sentencing purposes, and

      sentenced Cummings to twelve years on the dealing conviction. Tr. at 105.


[2]   On appeal, Cummings argues that his convictions violate double jeopardy

      principles. The State concedes the issue. As we explained in Bookwalter v. State,


              The Indiana Constitution provides in part, “No person shall be
              put in jeopardy twice for the same offense.” Ind. Const. art. I, §
              14. Two offenses are the “same offense” and violate the double
              jeopardy clause of the Indiana Constitution if, with respect either
              to the statutory elements of the challenged crimes or the actual
              evidence used to convict the defendant of the offenses, the
              essential elements of one challenged offense also establish the
              essential elements of another challenged offense. Spivey v. State,
              761 N.E.2d 831, 832 (Ind. 2002). The latter of these forms of
              double jeopardy is termed the “actual evidence test.” Id.
              “Possession of a narcotic drug is an inherently included lesser
              offense of dealing that drug, and a defendant generally may not
              be convicted and sentenced separately for both dealing and
              possession of the same drug,” unless “the dealing and possession
              charges are specifically based only on the respective quantities.”
              Quick v. State, 660 N.E.2d 598, 601 (Ind. Ct. App. 1996) (citing,
              inter alia, Mason v. State, 532 N.E.2d 1169, 1172 (Ind. 1989), cert.
              denied ).


      22 N.E.3d 735, 742 (Ind. Ct. App. 2014), trans. denied (2015).


[3]   The charging information in this case does not distinguish quantities, and

      therefore Cummings’s possession and dealing of cocaine was the “same

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1472 | April 22, 2016   Page 2 of 3
      offense” for double jeopardy purposes. “A double jeopardy violation occurs

      when judgments of conviction are entered and cannot be remedied by the

      ‘practical effect’ of concurrent sentences or by merger after conviction has been

      entered.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008) (quoting

      Morrison v. State, 824 N.E.2d 734, 741-42 (Ind. Ct. App. 2005), trans. denied),

      trans. denied (2009). Therefore, we remand with instructions to vacate the class

      D felony possession conviction, which will not affect Cummings’s sentence.

      The trial court need not hold a new sentencing hearing on remand.


[4]   Remanded.


      Najam, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1472 | April 22, 2016   Page 3 of 3
