MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                                Jul 22 2016, 8:20 am
this Memorandum Decision shall not be
                                                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Troy Stevenson,                                          July 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1512-CR-2057
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese M.
Appellee-Plaintiff.                                      Flowers, Judge
                                                         Trial Court Cause No.
                                                         49G20-1308-FB-56735



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016          Page 1 of 8
                                            Statement of the Case
[1]   Troy Stevenson (“Stevenson”) challenges his sentences for his Class B felony

      dealing in a narcotic drug1 conviction and habitual offender enhancement2 and

      his judgment of conviction for his Class D felony possession of a narcotic drug

      conviction.3 He argues that: (1) the trial court abused its discretion when it

      sentenced him because it did not properly identify aggravating factors; and (2)

      the trial court erred when it merged his possession and dealing convictions

      without vacating the possession conviction. Because we conclude that the trial

      court did not abuse its discretion in identifying aggravators, we affirm in part.

      However, we agree that the trial court erred when it merged Stevenson’s

      possession and dealing convictions without vacating the possession conviction.

      We reverse in part and remand with instructions for the trial court to vacate

      Stevenson’s conviction for possession of a narcotic drug.


[2]   We affirm in part, reverse in part, and remand.


                                                     Issues
                 1. Whether the trial court abused its discretion when it sentenced
                 Stevenson.

                 2. Whether the trial court erred when it merged two of
                 Stevenson’s convictions without also vacating one of the
                 convictions.



      1
          IND. CODE § 35-48-4-1(a)(1)(C).
      2
          I.C. § 35-30-2-8(a).
      3
          I.C. § 35-48-4-6.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016   Page 2 of 8
                                                     Facts
[3]   In August 2013, Indianapolis Metropolitan Police Department (“IMPD”)

      Detective Nicholas Andrews (“Detective Andrews”) received a tip from a

      confidential informant that a man with the nickname of “Run” was selling

      heroin on the southside of Indianapolis. (Tr. 124). The confidential informant

      gave Run’s phone number to Detective Andrews and told him the

      neighborhood where Run usually conducted his narcotics transactions.

      Detective Andrews and other detectives then set up surveillance in that

      neighborhood on August 7 and 14, 2013 and identified “Run” as Stevenson.


[4]   On the second day of surveillance, Detective Andrews decided to arrange a

      controlled purchase of heroin from Stevenson. That night, he provided a

      confidential informant with $120 of prerecorded buy money and outfitted an

      undercover detective, David Durant (“Detective Durant”), with an audio

      recording device. Detective Durant and the confidential informant then called

      Stevenson and arranged to buy heroin. After multiple location changes, they,

      along with six to seven officers in an undercover backup van, eventually drove

      to a gas station at the intersection of 56th Street and Shadeland Way. At the gas

      station, Detective Durant gave Stevenson the $120 in buy money, and

      Stevenson gave him 0.9511 grams of heroin in exchange. Subsequently,

      Stevenson drove away from the gas station “at a high rate of speed,” and

      Detective Durant and the informant met with Detective Andrews and gave him

      the heroin. (Tr. 159). Detective Andrews later tried to arrange a second



      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016   Page 3 of 8
      controlled purchase of heroin from Stevenson, but Stevenson did not answer his

      phone.


[5]   On August 28, 2013, the State charged Stevenson with Count I, Class B felony

      dealing in a narcotic drug and Count II, Class D felony possession of cocaine.4

      On February 28, 2014, the State then added an allegation that Stevenson

      qualified as an habitual offender because of two prior unrelated felony

      convictions.


[6]   On October 29, 2014, the trial court conducted a jury trial. However, the trial

      resulted in a mistrial due to a misstatement by one of the detectives. The trial

      court then held a second jury trial on September 30, 2015, but that trial resulted

      in a hung jury. Finally, the trial court held the instant jury trial on October 21,

      2015, and the jury found Stevenson guilty of Counts I and II. Stevenson

      waived a jury trial on his habitual offender allegation and pled guilty to being

      an habitual offender.


[7]   Thereafter, the trial court held a sentencing hearing on November 9, 2015. At

      the conclusion of the sentencing hearing, the court entered judgments of

      conviction on all of the counts. It merged Stevenson’s possession of a narcotic

      drug conviction into his dealing conviction and sentenced him to twelve (12)

      years executed for the dealing conviction. The court then enhanced this

      sentence by ten (10) years for Stevenson’s habitual offender adjudication.



      4
          The State later amended Count II to Class D felony possession of a narcotic drug.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016    Page 4 of 8
      Stevenson’s aggregate sentence totaled twenty-two (22) years executed in the

      Department of Correction.


[8]   As a basis for this sentence, the trial court explained:


              Court finds in mitigation that defendant is a high school
              graduate, so that is a mitigator[] that the court is finding. Many
              people come before the court, defendants specifically, they do not
              have a diploma, so the court does find that that’s a mitigator[].
              That is the only mitigator the court finds in this case. In
              aggravation[,] the court finds the defendant’s criminal history,
              and the criminal history that the court finds [a]s the aggravators,
              is the two prior misdemeanor convictions only. The court does
              not find the two prior felony convictions as aggravators, because
              they were used for the habitual offender enhancement, so the
              prior misdemeanor convictions are an aggravator. Another
              statutory aggravator the court is finding is the defendant’s
              violation, recently of probation. The defendant had a prior Court
              20 sentence, Community Corrections was imposed, he was then
              placed on probation, and his probation was revoked as a result of
              the new offense, and a new conviction. So, the court does find
              that as [an] aggravator. Also in aggravation, the court notes the
              nature and circumstances of this offense.


      (Tr. 254-55). Stevenson now appeals.


                                                  Decision
[9]   On appeal, Stevenson raises two arguments: (1) that the trial court abused its

      discretion in sentencing him because it did not properly identify aggravating

      factors; and (2) the trial court erred because it merged his conviction for

      possession of a narcotic drug into his conviction for dealing in a narcotic drug



      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016   Page 5 of 8
       without vacating the formal judgment of conviction for the possession

       conviction. We will address each of these arguments in turn.


       1. Sentencing

[10]   Stevenson’s argument that the trial court abused its discretion when sentencing

       him has two components. First, he asserts that the trial court abused its

       discretion because it did not give a detailed explanation for why the nature and

       circumstances of his offense were aggravating. Second, he asserts that the trial

       court abused its discretion when it found that his probation violation was an

       aggravator because the violation was not “recent” like the trial court said in its

       oral sentencing statement. (Tr. 255).


[11]   Preliminarily, we note that sentencing decisions rest within the sound discretion

       of the trial court. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007). Under Indiana’s advisory sentencing

       scheme, “once the trial court has entered a sentencing statement, which may or

       may not include the existence of aggravating and mitigating factors, it may then

       ‘impose any sentence that is . . . authorized by statute; and . . . permissible

       under the Constitution of the State of Indiana.’” Id. at 491 (quoting I.C. § 35-

       38-1-7.1(d) (stating that a court may impose any sentence authorized by statute

       “regardless of the presence or absence of aggravating or mitigating

       circumstances.”)). As long as the sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Id. at 490. We will find an

       abuse of discretion where the decision is clearly against the logic and effect of

       the facts and circumstances before the court or the reasonable, probable, and

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016   Page 6 of 8
       actual deductions to be drawn therefrom. Id. A trial court may abuse its

       discretion in a variety of ways, including: (1) failure to enter a sentencing

       statement at all; (2) entering a sentencing statement that includes aggravating

       and mitigating factors that are unsupported by the record; (3) entering a

       sentencing statement that omits reasons that are clearly supported by the

       record; or (4) entering a sentencing statement that includes reasons that are

       improper as a matter of law. Id. at 490-91.


[12]   We need not address either of Stevenson’s sentencing arguments because

       Stevenson does not challenge the trial court’s finding that his criminal history

       was an aggravating factor. It is a well-established principle that a single

       aggravator is sufficient to support an enhanced sentence. Williams v. State, 891

       N.E.2d 621, 633 (Ind. Ct. App. 2008). Therefore, regardless of our

       consideration of the trial court’s other two aggravators, the trial court’s

       identification of Stevenson’s criminal history was sufficient to support his

       sentence. Moreover, it is not an abuse of discretion for a trial court to consider

       a remote probation violation as an aggravating factor. See Smith v. State, 889

       N.E.2d 261, 264 (Ind. 2008). The proximity in time of the violation merely

       impacts the weight that the trial court should assign to it. See id. (“We assign

       aggravating weight in the low range to Smith’s prior criminal history due to the

       lack of proximity in time between the prior offenses and the instant offenses.”).

       We will not review the weight that the trial court assigned to the factor on

       appeal. See Anglemyer, 868 N.E.2d at 491.


       2. Judgment of Conviction

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016   Page 7 of 8
[13]   Next, Stevenson argues, and the State concedes, that the trial court erred when

       it merged Stevenson’s dealing and possession convictions without vacating the

       judgment of conviction for the possession conviction. We agree. A trial court’s

       act of merging, without also vacating, convictions that violate double jeopardy

       prohibitions, is not sufficient to cure the double jeopardy violation. Gregory v.

       State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008). Accordingly, we remand this

       cause to the trial court with instructions for the trial court to issue a new

       sentencing order and abstract of judgment vacating Stevenson’s conviction for

       Class D felony possession of a narcotic drug.


[14]   Affirmed in part, reversed in part, and remanded.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2057 | July 22, 2016   Page 8 of 8
