                                                                        Dec 10 2015, 8:49 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                             Gregory F. Zoeller
Matheny, Hahn, Denman, & Nix, LLP                         Attorney General of Indiana
Huntington, Indiana
                                                          Karl M Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Ronald L. Eckelbarger,                                    December 10, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          90A02-1503-CR-188
        v.                                                Appeal from the Wells Circuit
                                                          Court
State of Indiana,                                         The Honorable Kenton W.
Appellee-Plaintiff.                                       Kiracofe, Judge
                                                          Trial Court Cause No.
                                                          90C01-1406-FB-5



Altice, Judge.



                                          Case Summary




Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015                    Page 1 of 20
[1]   Following a jury trial, Ronald L. Eckelbarger was convicted of three counts of

      Dealing in Methamphetamine,1 as Class B felonies, and one count of

      Possession of Chemical Reagents or Precursors with Intent to Manufacture a

      Controlled Substance,2 a Class D felony. Eckelbarger was sentenced to an

      aggregate term of thirty-two years, with eight years suspended to probation.

      Eckelbarger presents three issues for our review:


               (1) Do Eckelbarger’s convictions for three counts of Class B
               felony dealing in methamphetamine violate the State’s
               prohibition against double jeopardy?


               (2) Did the trial court abuse its discretion by ordering
               consecutive sentences in excess of the maximum term permitted
               by Ind. Code § 35-50-1-2(c)?


               (3) Is Eckelbarger’s sentence inappropriate in light of the nature
               of the offense and his character?


[2]   We affirm.


                                         Facts & Procedural History

[3]   In May of 2014, Rebecca Markley was on probation for two convictions of

      check deception when she tested positive for methamphetamine. In order to




      1
       Ind. Code § 35-48-4-1.1(a)(1). Effective July 1, 2014, this offense was reclassified as a Level 5 felony.
      Because Eckelbarger committed these offenses prior to that date, they retain their prior classification as Class
      B felonies.
      2
       I.C. § 35-48-4-14.5(e). Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because
      Eckelbarger committed this offense prior to that date, it retains its prior classification as a Class D felony.

      Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015                           Page 2 of 20
      avoid the repercussions of her probation violation, Markley agreed to act as a

      confidential informant for the DETECT Drug Task Force—a joint operation

      between Adams County and Wells County. Markley had been romantically

      involved with Eckelbarger for approximately two and a half years and identified

      him as her source for methamphetamine.


[4]   On June 5, 2014, Markley met with two members of the DETECT Drug Task

      Force—Detective James Paxton of the Wells County Sheriff’s Department and

      Detective Andrew Ellis of the Bluffton Police Department—and signed a

      confidential informant agreement in which Markley agreed to complete “a

      minimum of two (2) purchases of controlled substances, the type and amount to

      be determined by [Detective Paxton].” State’s Exhibit 1. In exchange for her

      compliance with the terms of the agreement, the State agreed to dismiss her

      probation violation.


[5]   On June 6, 2014, Markley contacted Eckelbarger and arranged to drop a box of

      pseudoephedrine pills off at his trailer in exchange for a portion of the

      methamphetamine that could be produced from it. That afternoon, Markley

      met with Detective Paxton, Detective Ellis, and other members of the DETECT

      Drug Task Force. The officers searched Markley’s person and vehicle for

      contraband and outfitted her with a concealed audio recording/transmitting

      device. After providing Markley with a box of pseudoephedrine pills, the

      DETECT officers discreetly followed Markley’s vehicle to Eckelbarger’s trailer.

      Markley delivered the pseudoephedrine directly to Eckelbarger, and he

      immediately removed the pseudoephedrine pills from the blister packs and

      Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 3 of 20
      began grinding them. Markley indicated that she would return after work to

      pick up the methamphetamine. Markley and the task force officers

      subsequently reconvened at their pre-determined meeting location, where

      Markley was once again subjected to a thorough search. Several hours later,

      Markley contacted Detective Paxton to inform him that she had completed her

      shift. As before, she met with the task force officers at the established meeting

      location where she was searched and equipped with a recording/transmitting

      device before she and the officers drove in separate vehicles to Eckelbarger’s

      trailer. With the officers parked nearby and listening to the transaction via the

      transmitting device, Eckelbarger provided Markley with a plastic bag

      containing a grayish/white substance and explained that he did not know what

      had gone wrong with the cooking process to cause it to have an unusual color.

      Markley left Eckelbarger’s trailer and provided Detective Paxton with the

      plastic bag Eckelbarger had given her. It was later determined that the

      grayish/white substance in the bag contained .77 grams of methamphetamine.


[6]   On June 13, 2014, the task force set up a second controlled buy with Markley.

      Markley again agreed to supply Eckelbarger with pseudoephedrine pills in

      exchange for methamphetamine. The task force officers followed the same

      procedure as during the prior controlled buy. This time, when Markley

      returned to Eckelbarger’s trailer to pick up the finished product, there were

      several other people present, and Eckelbarger asked Markley if she wanted “to

      do a ‘bump’ real quick.” Appellant’s Appendix at 24. Markley declined and then

      went to retrieve a plastic bag containing a white, powdery substance from


      Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 4 of 20
      Eckelbarger’s nightstand upon his indication “that it was her stuff.” Id. Again,

      Markley turned the bag containing the white, powdery substance over to

      Detective Paxton. Subsequent testing confirmed that the bag contained .84

      grams of methamphetamine.


[7]   On June 14, 2014, Detective Paxton, along with officers from the DETECT

      Drug Task Force and Indiana State Police Meth Suppression Team, obtained

      and executed a search warrant for Eckelbarger’s trailer. During the search,

      officers seized numerous items and ingredients necessary for the one-pot

      method3 of manufacturing methamphetamine, including homemade ammonia

      reaction vessels (i.e., one pots); homemade hydrochloric acid gas (HCL

      generators); Crystal Drain Opener and Kleen-Out drain opener (i.e., sodium

      hydroxide/lye); numerous instant cold packs (i.e., ammonium nitrate); Liquid

      Fire and Liquid Lightning drain openers (i.e., sulfuric acid); Coleman fuel (i.e.,

      organic solvent); salt; lithium battery casings; coffee filters; plastic funnels;

      Ziploc bags; vinyl tubing; and hypodermic needles. The officers also found a

      receipt in Eckelbarger’s wallet that indicated he had attempted to purchase

      Sudafed on May 17, 2014, but had been blocked after the National Precursor

      Log Exchange (NPLEx) revealed that he had already purchased his annual

      limit of 61.2 grams of pseudoephedrine.




      3
       At trial, Indiana State Police Trooper Lionel Smith described in significant detail the most commonly
      utilized procedure for manufacturing methamphetamine—the “one pot method”—which combines “regular
      household chemicals” in a two-step process. Transcript at 266.

      Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015                Page 5 of 20
[8]    On June 16, 2014, the State charged Eckelbarger with two counts of dealing in

       methamphetamine by delivery, Class B felonies (Counts I and II). On June 19,

       2014, the State filed additional charges of dealing in methamphetamine by

       manufacturing, a Class B felony (Count III) and possession of chemical

       reagents or precursors with intent to manufacture a controlled substance, a

       Class D felony (Count IV).


[9]    A jury trial commenced on January 20, 2015. At the close of the evidence, the

       jury found Eckelbarger guilty on all four counts, and the trial court entered a

       judgment of conviction accordingly. The trial court held a sentencing hearing

       on March 11, 2015. The trial court sentenced Eckelbarger to sixteen years with

       four years suspended on each of Counts I, II, and III. As to Count IV, the trial

       court sentenced Eckelbarger to three years. The trial court ordered the

       sentences on Counts I and II to be served concurrent with one another and

       consecutive to the sentence on Count III. The sentence on Count IV was

       ordered to run concurrently with the sentence on Count III. Thus, the trial

       court sentenced Eckelbarger to an aggregate term of thirty-two years, with eight

       years suspended to probation. Eckelbarger now appeals. Additional facts will

       be provided as necessary.


                                           Discussion & Decision

                                                Double Jeopardy


[10]   Eckelbarger claims that his “two separate convictions for dealing in

       methamphetamine by manufacturing it and then delivering it” violate the


       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 6 of 20
       Double Jeopardy Clause of the Indiana Constitution.4 Article 1, section 14 of

       the Indiana Constitution provides that “[n]o person shall be put in jeopardy

       twice for the same offense.” The Indiana Supreme Court has determined that

       two or more offenses constitute the same offense for double jeopardy purposes

       “if, with respect to either the statutory elements of the challenged crimes or the

       actual evidence used to obtain convictions, the essential elements of one

       challenged offense also establish the essential elements of another challenged

       offense.” Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013) (citing

       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). “Whether convictions

       violate double jeopardy is a question of law which we review de novo.” Id.


[11]   In arguing that double jeopardy “prohibit[s] two separate convictions for

       manufacturing methamphetamine and delivering methamphetamine[,]”

       Eckelbarger relies on Indiana’s continuing crime doctrine. See Hines v. State, 30

       N.E.3d 1216, 1219 (Ind. 2015). As this court has previously stated, “the

       continuing crime doctrine reflects a category of Indiana’s prohibition against

       double jeopardy.” Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010).

       The continuing crime doctrine provides that “actions that are sufficient in

       themselves to constitute separate criminal offenses may be so compressed in

       terms of time, place, singleness of purpose, and continuity of action as to




       4
         Eckelbarger also generally asserts that his conviction runs afoul of the Fifth Amendment to the United
       States Constitution, which specifies that “[n]o person shall . . . be subject for the same offen[s]e to be twice
       put in jeopardy of life or limb.” None of the cases relied upon by Eckelbarger pertain to a claim under the
       United States Constitution. We therefore find Eckelbarger has waived his Fifth Amendment double jeopardy
       argument. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015                        Page 7 of 20
       constitute a single transaction.” Id. at 735. Thus, in addition to precluding a

       defendant from being convicted “of two or more distinct chargeable crimes

       when they constitute the ‘same offense[,]’” double jeopardy prohibits

       “convicting a defendant multiple times for the same continuous offense.” Id. at

       736-37.


[12]   At the time Eckelbarger committed the instant offenses, I.C. § 35-48-4-1.1(a)(1)

       provided as follows:

               [a] person who . . . knowingly or intentionally:
               (A) manufactures;
               (B) finances the manufacture of;
               (C) delivers; or
               (D) finances the delivery of;
               methamphetamine, pure or adulterated[,] commits dealing in
               methamphetamine, a Class B felony.


       In Counts I and II, the State alleged that Eckelbarger knowingly delivered

       methamphetamine to Markley in controlled drug purchases on June 6 and June

       13, 2014, respectively. Count III charged that Eckelbarger knowingly

       manufactured methamphetamine on or about June 14, 2014. “Delivery” is

       statutorily defined as the “actual or constructive transfer from one (1) person to

       another of a controlled substance, whether or not there is an agency

       relationship.” I.C. § 35-48-1-11. On the other hand, “[m]anufacture” refers to

               the production, preparation, propagation, compounding,
               conversion, or processing of a controlled substance, either
               directly or indirectly by extraction from substances of natural
               origin, independently by means of chemical synthesis, or by a

       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 8 of 20
               combination of extraction and chemical synthesis, and includes
               any packaging or repackaging of the substance or labeling or
               relabeling of its container. . . .


       I.C. § 35-48-1-18.


[13]   Eckelbarger concedes that the crime of dealing in methamphetamine “can be

       committed by separate acts of manufacturing and delivering

       methamphetamine[,]” and that here, “there are separate facts to establish the

       manufacturing and the delivery of methamphetamine.” Appellant’s Brief at 8.

       Nonetheless, Eckelbarger argues that “[t]he transactions in this case specifically

       called for Markley to provide a key ingredient, pseudoephedrine, to Eckelbarger

       in order to manufacture methamphetamine, which Markley could later

       retrieve.” Id. at 9. According to Eckelbarger, “[t]he manufacture of

       methamphetamine was so compressed in terms of time, place, singleness of

       purpose and continuity with the delivery of methamphetamine that it did not

       constitute a second and distinct crime.” Id. We disagree.


[14]   In order to prove that Eckelbarger delivered methamphetamine as charged in

       Counts I and II, the State presented evidence that on June 6 and 13, 2014,

       Eckelbarger provided Markley with 0.77 gram of methamphetamine and 0.84

       gram of methamphetamine, respectively. Therefore, the crime of delivering

       methamphetamine was completed each time Eckelbarger transferred

       methamphetamine to Markley during the controlled buys.


[15]   In turn, in order to convict Eckelbarger of manufacturing methamphetamine,

       the State relied on the evidence that was seized from Eckelbarger’s home on
       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 9 of 20
       June 14, 2014, which included numerous items commonly utilized in the

       manufacture of methamphetamine, including ammonia reaction vessels, HCL

       generators, cut-open instant cold packs, ammonium nitrate pellets, drain

       cleaners, organic solvents, stripped out lithium battery casings, soiled coffee

       filters, homemade funnels, and vinyl tubing stained with a white residue.

       Trooper Smith testified that they found neither an active methamphetamine lab

       nor any pseudoephedrine during the search of Eckelbarger’s home. As such, he

       opined that the spent ammonia reaction vessels and HCL generators would

       have been used in the past to manufacture methamphetamine—“anywhere

       from hours to a month” prior to the execution of the warrant. Transcript at 315.

       See Bulthuis v. State, 17 N.E.3d 378, 387-88 (Ind. Ct. App. 2014) (sustaining a

       conviction for manufacturing methamphetamine where the police found items

       commonly used to manufacture methamphetamine even though there was no

       evidence of an active methamphetamine lab), trans. denied; see also Vanzyll v.

       State, 978 N.E.2d 511, 518 (Ind. Ct. App. 2012) (citing Bush v. State, 772 N.E.2d

       1020, 1023 (Ind. Ct. App. 2002), trans. denied) (noting that a conviction for

       manufacturing methamphetamine does not require that manufacturing be

       completed or that there be actual product).


[16]   Although Markley provided Eckelbarger with pseudoephedrine pills on June 6

       and June 13, 2014, to use to manufacture methamphetamine which he

       subsequently delivered to her, the State did not rely on this evidence to prove

       that Eckelbarger solely manufactured methamphetamine on those particular

       dates. Rather, the State also presented evidence that between July 21, 2013,


       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 10 of 20
       and June 12, 2014, Eckelbarger purchased pseudoephedrine pills on thirty-eight

       separate occasions and was blocked by the NPLEx system on three occasions

       because he had already surpassed the annual, legal limit of 61.2 grams.

       Detective Ellis testified that “[a] normal person would not buy this [amount of

       pseudoephedrine] and it would indicate to me that he has manufactured

       methamphetamine.” Transcript at 233. We therefore conclude that

       Eckelbarger’s acts of delivering methamphetamine and manufacturing

       methamphetamine were not part of the same continuous offense. Eckelbarger’s

       convictions do no run afoul of the State’s prohibition against double jeopardy.


                                            Consecutive Sentences


[17]   Eckelbarger argues that the trial court abused its discretion in ordering his

       sentence on Count II to run consecutively to the concurrent sentences imposed

       on Counts III and IV for an aggregate sentence of thirty-two years. He claims

       this violates I.C. 35-50-1-2(c), which provides that, except for statutory crimes

       of violence,

               the total of the consecutive terms of imprisonment . . . to which
               the defendant is sentenced for felony convictions arising out of an
               episode of criminal conduct shall not exceed the advisory sentence
               for a felony which is one (1) class of felony higher than the most
               serious of the felonies for which the person has been convicted.


       Id. (emphasis added). In this case, Eckelbarger’s most serious charge was a

       Class B felony and the advisory sentence for the next highest class of felony—a

       Class A felony—is thirty years. See I.C. § 35-50-2-4. Eckelbarger asserts that


       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 11 of 20
       “the trial court was limited to imposing a sentence of [thirty] years” because

       “all three counts were closely related in time, place, and circumstance and were

       part of a single episode of criminal conduct.” Appellant’s Brief at 10.


[18]   An “episode of criminal conduct” refers to “offenses or a connected series of

       offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-

       1-2(b). Whether multiple offenses “constitute a single episode of criminal

       conduct is a fact-intensive inquiry to be determined by the trial court.” Slone v.

       State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (quoting Schlichter v. State, 779

       N.E.2d 1155, 1157 (Ind. 2002)). In making this determination, “the focus is on

       the timing of the offenses and the simultaneous and contemporaneous nature, if

       any, of the crimes.” Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008)

       (quoting Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006)). The test for

       determining whether offenses arise out of a single episode of criminal conduct is

       whether “a full account of each crime can be given without referring to the

       other offenses.” Reeves v. State, 953 N.E.2d 665, 671 (Ind. Ct. App. 2011), trans.

       denied.


[19]   Here, Eckelbarger’s conviction for dealing in methamphetamine by delivery

       was not dependent on evidence that he also manufactured methamphetamine.

       This crime was committed simply by transferring possession of

       methamphetamine to Markley on June 13, 2014 (Count II). Likewise,

       Eckelbarger’s conviction for dealing in methamphetamine by manufacturing

       (Count III) was proven by the discovery of numerous ingredients used in the

       production of methamphetamine without reference to Eckelbarger’s delivery of

       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 12 of 20
       the drug to Markley. As we have already determined, the crimes were distinct

       in nature and were not part of a continuous transaction. Therefore, we

       conclude that Eckelbarger’s crimes were not part of a single episode of criminal

       conduct. The trial court was not constrained to impose a sentence capped at

       the advisory sentence for a Class A felony.


                                            Inappropriate Sentence

[20]   Eckelbarger claims that his thirty-two year sentence is inappropriate. It is well

       established that matters of sentencing reside within the discretion of the trial

       court, and “the trial court’s judgment should receive considerable deference.”

       Hines, 30 N.E.3d at 1225. Nevertheless, despite the fact that the trial court

       imposed a sentence that is authorized by statute, we may revise Eckelbarger’s

       sentence if, “after due consideration of the trial court’s decision, [we] find[] that

       the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” Ind. Appellate Rule 7(B). Ultimately, “[t]he

       principal role of appellate review should be to attempt to leaven the outliers,

       and identify some guiding principles for trial courts and those charged with

       improvement of the sentencing statutes, but not to achieve a perceived ‘correct’

       result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

       Thus, “whether we regard a sentence as appropriate . . . turns on our sense of

       the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Id. at 1224.

       In making this determination, the relevant considerations are the length of the

       aggregate sentence and how it is to be served. Id. Eckelbarger bears the burden


       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 13 of 20
       of persuading our court that his sentence is inappropriate. Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012).


[21]   Eckelbarger was convicted of three Class B felonies and one Class D felony.

       For a Class B felony, the sentencing range is six to twenty years, and the

       advisory sentence is ten years; for a Class D felony, the sentencing range is six

       months to three years, with an advisory sentence of one and one-half years.

       I.C. §§ 35-50-2-5; -7(a). Eckelbarger was sentenced to sixteen years on each of

       the Class B felonies and three years on the Class D felony. The sentences for

       the two dealing convictions which arose out of the two controlled buys were

       ordered to be served concurrently. It was only the sentences for dealing by

       delivery and dealing by manufacturing that were ordered to be served

       consecutively. With the imposition of consecutive sentences for these distinct

       crimes, Eckelbarger received an aggregate sentence of thirty-two years with

       eight years suspended to probation.


[22]   We begin with the nature of the offense. As noted by the trial court,

       Eckelbarger manufactured methamphetamine, which necessarily involves the

       use of toxic, corrosive, and volatile chemicals and the process of which is

       extremely dangerous, and he did so “in a trailer park where the homes are

       literally feet away from one another.” Transcript at 368. In addition to

       manufacturing the drug without regard to the danger posed to others,

       Eckelbarger provided methamphetamine to Markley in exchange for

       pseudoephedrine during two separate controlled buys.



       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 14 of 20
[23]   With regard to the character of the offender, we note that Eckelbarger attempts

       to minimize his culpability by shifting the blame to Markley, suggesting that he

       manufactured methamphetamine for her only after she provided him with the

       essential ingredient of pseudoephedrine in order to set him up for a controlled

       buy. The NPLEx records belie this assertion in that they establish Eckelbarger

       was purchasing pseudoephedrine on a frequent basis long before Markley acted

       as a confidential informant. Further, Markley informed task force officers that

       Eckelbarger had been supplying her with methamphetamine for a substantial

       period of time.


[24]   Eckelbarger also directs our attention to the fact that he was a member of the

       United States Marine Corps from 1969 through 1973, serving in Vietnam before

       receiving an honorable discharge. While his service to our country is certainly

       admirable, during his subsequent employment as a truck driver, Eckelbarger

       began using methamphetamine on a regular basis. Also, at age forty-three,

       Eckelbarger experimented with cocaine and used one gram per day for the next

       five years. Despite attending substance abuse treatment in 2001, 2012, and for

       one week while released on bond in the instant case, Eckelbarger admits that he

       continues to suffer from a serious drug addiction.


[25]   Eckelbarger additionally notes that he is the father of three grown children, as

       well as a six-year-old, and a four-year-old. This fact, however, carries little

       weight as a positive attribute of his character considering that Eckelbarger’s

       parental rights to his two youngest children were terminated because he failed

       to participate in the services recommended by the Department of Child

       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 15 of 20
       Services. Those children are now in the custody of Eckelbarger’s adult

       daughter.


[26]   In addition to the foregoing, perhaps the most telling of Eckelbarger’s character

       is his criminal history. In addition to the numerous uncharged drug offenses

       mentioned above, Eckelbarger has a prior conviction for class B felony dealing

       in methamphetamine. Eckelbarger has also accumulated convictions for public

       intoxication, possession of marijuana, and battery resulting in bodily injury. As

       a result of his prior convictions, Eckelbarger has been ordered to complete

       community service, has been placed on probation and work release, and has

       served time in both jail and the Department of Correction. Eckelbarger has also

       previously had his probation revoked for failing a drug test. Neither his prior

       penalties nor his rehabilitation attempts in substance abuse facilities have been

       sufficient to deter Eckelbarger from committing additional crimes. This is

       further evidenced by the fact that less than three months after Eckelbarger was

       released on bond to await trial in the instant case, he was charged with a new

       offense, assisting a criminal as a Class A misdemeanor. As a result, his bond

       was revoked. We further note that Eckelbarger’s own statement during his pre-

       sentence investigation interview that he “did [his] part to keep [his] friends[’]

       habits going” (Appellant’s Confidential Appendix at 303) gives credence to the trial

       court’s statement that Eckelbarger was “a factor in [the] explosion and

       epidemic” of methamphetamine cases in Wells County. Transcript at 368.


[27]   In light of the nature of the offense and particularly the character of the

       offender, which demonstrates quite clearly that Eckelbarger has no regard for

       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 16 of 20
       the laws of this state and has disdain for legal authority, we conclude that the

       sentence imposed by the trial court is not inappropriate. 5


[28]   Judgment affirmed.


       Brown, J., concurs.


       Riley, J., concurs in part and dissents in part with separate opinion.




       5
         The dissent, citing Williams v. State, 891 N.E.2d 621 (Ind. Ct. App. 2008) as support, would exercise this
       court’s authority under Ind. Appellate Rule 7(B) to revise Eckelbarger’s sentence such that the sentences
       imposed on Counts I and II would run concurrently with the sentences imposed on Counts III and IV. We
       understand the Williams court’s stated concern that the State “may not ‘pile on’ sentences by postponing
       prosecution in order to gather more evidence.” Id. at 635. We disagree, however, that this concern is
       implicated when the underlying crimes are wholly distinct, even where such crimes were discovered as part
       of state-sponsored activity. Here, the trial court ordered the sentences for the dealing convictions arising
       from the two controlled buys to run concurrently with each other but consecutively to the sentence imposed
       for the dealing by manufacturing conviction arising from evidence gathered during execution of a search
       warrant. In short, this is not a situation that gives rise to the concern that the State was seeking to “pile on”
       charges and resulting sentences.

       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015                         Page 17 of 20
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Ronald L. Eckelbarger,                                    Court of Appeals Case No.
                                                                 90A02-1503-CR-188
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge, concurring in part and dissenting in part.


[29]   I concur with the majority’s conclusion that Eckelbarger’s conviction for

       multiple Counts of dealing in methamphetamine does not violate double

       jeopardy principles, and I further concur that the trial court was not constrained

       in its imposition of consecutive sentences amounting to thirty-two years

       because Eckelbarger’s crimes were not part of a single episode of criminal

       conduct. However, I dissent with respect to the majority’s determination that

       Eckelbarger’s aggregate thirty-two-year sentence is appropriate.


       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015           Page 18 of 20
[30]   As the majority found, the serious nature of Eckelbarger’s offenses and his lack

       of positive character attributes indicate that a sentence revision is not merited.

       Nevertheless, I note that in its argument regarding consecutive sentences, the

       State relies on Williams v. State, 891 N.E.2d 621 (Ind. Ct. App. 2008). In

       Williams, the defendant was convicted, in part, of two Counts of Class A felony

       dealing in cocaine and one Count of Class A felony cocaine possession

       following “two nearly-identical, State-sponsored drug transactions within a

       short period of time, as well as from evidence seized pursuant to a search

       warrant that was procured solely as a result of those State-sponsored

       transactions.” Id. at 634-35. The controlled drug purchases in Williams

       occurred within twenty-four hours of each other, and the search warrant was

       executed within twenty-four hours of the second transaction. Id. at 635. As in

       the present case, the Williams court found that the defendant’s “crimes were

       separate episodes of criminal conduct justifying multiple convictions.” Id.

       Nonetheless, the Williams court concluded that the imposition of consecutive

       sentences (i.e., the concurrent sentences for the two dealing charges arising from

       the controlled purchases were ordered to be served consecutively to the

       sentence for the possession charge arising from the execution of the warrant)

       was inappropriate. Id. The court reasoned that “the State may not ‘pile on’

       sentences by postponing prosecution in order to gather more evidence . . . as a

       direct result of the State-sponsored criminal activity.” Id.


[31]   Analogous to Williams, Eckelbarger’s charges for delivering methamphetamine

       arose from two, nearly-identical State-sponsored drug purchases that were

       Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 19 of 20
separated by a week. One day after the second transaction, the police executed

a search warrant that was procured solely as the result of those State-sponsored

drug purchases, the fruits of which led to Eckelbarger’s conviction for

manufacturing methamphetamine and possession of precursors with intent to

manufacture. Therefore, as in Williams, I would elect to exercise this court’s

authority under Appellate Rule 7(B) and order that Eckelbarger’s sentences on

Counts I and II run concurrently with his sentences on Counts III and IV, for

an aggregate term of sixteen years, with twelve years executed and four years

suspended to probation. In all other respects, I would affirm.




Court of Appeals of Indiana | Decision 90A02-1503-CR-188| December 10, 2015   Page 20 of 20
