MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Feb 23 2016, 8:53 am

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
Darren Bedwell                                           Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Corbin,                                           February 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1508-CR-1209
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Daniel L. Pflum,
Appellee-Plaintiff.                                      Senior Judge

                                                         Trial Court Cause No.
                                                         49G20-1211-FA-78169



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1209| February 23, 2016     Page 1 of 5
                                       Statement of the Case
[1]   Justin Corbin appeals his conviction and sentence for possession of heroin, as a

      Class C felony, following a guilty plea. Corbin raises a single issue for our

      review, namely, whether the trial court violated Corbin’s right to be free from

      double jeopardy when it entered its judgment of conviction against Corbin for

      possession of heroin. We affirm.


                                 Facts and Procedural History
[2]   On November 16, 2012, the State charged Corbin with two counts. Count I

      alleged that Corbin had, on November 15, knowingly possessed heroin with

      intent to deliver, as a Class A felony. Count II alleged that, on the same day,

      Corbin had knowingly possessed heroin.


[3]   The trial court scheduled Corbin’s jury trial for November 13, 2014. After the

      jury had been empaneled but before the presentation of evidence, Corbin

      pleaded guilty to both Count I and Count II in open court and without the

      benefit of a plea agreement. Thereafter, the State informed the trial court as

      follows:

              If this case had gone to trial, Judge, the State would have shown
              that[,] on November 15, 2012[,] in the afternoon, a 2004 Toyota
              was stopped . . . for a traffic offense. Driving that vehicle
              was . . . Corbin. It was discovered that his driving privileges
              were suspended. He was placed under arrest. At this time there
              was a K-9 sniff of his vehicle . . . which . . . indicated . . .
              positive . . . . The vehicle was searched and nothing was found.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1209| February 23, 2016   Page 2 of 5
              The officer that was involved with the traffic stop suspected Mr.
              Corbin may have narcotics on him by the way he was acting. He
              was taken to roll call . . . where he was searched, and actually he
              recovered it himself and gave approximately 14 grams of heroin
              that was in his buttocks area to Sergeant Scott Primer. He then
              gave a brief interview to Sergeant Primer in which he admitted
              that he put the heroin on his body as he was being pulled over
              and that he intended to deal that heroin at various locations to
              various different people. He then gave consent to search a
              residen[ce] . . . where he lives with his girlfriend . . . . An[]
              additional approximately 11 grams of heroin was found there
              with two razor blades[;] several were individually packaged in
              small portions of heroin. There w[ere] also two razor blades and
              a marijuana pipe was also found at that residence.


              That constitutes dealing in a narcotic drug as a Class A Felony
              [as alleged in Count I] and possession of a narcotic drug as a
              Class C Felony [as alleged in Count II].


      Tr. at 10-11. Corbin agreed with the State’s assertions, and the court accepted

      Corbin’s guilty plea. The court then entered its judgment of conviction against

      Corbin on both Count I and Count II and sentenced Corbin accordingly. This

      appeal ensued.


                                     Discussion and Decision
[4]   Corbin asserts that the entry of the judgment of conviction against him on

      Count II violated his right to be free from double jeopardy because, according

      to Corbin, Count II was an inherently lesser included offense to Count I. Entry

      of conviction for both an offense and its lesser-included offenses “is

      impermissible under both state and federal double jeopardy rules.” Wentz v.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1209| February 23, 2016   Page 3 of 5
      State, 766 N.E.2d 351, 359-60 (Ind. 2002). An offense is an inherently lesser

      included offense when it may be established by proof of the same material

      elements or less than all the material elements that define the “greater” crime

      charged. Smith v. State, 881 N.E.2d 1040, 1046 (Ind. Ct. App. 2008). Stated

      another way, an offense is an inherently lesser included offense “if it is

      impossible to commit the greater offense without first having committed the

      lesser.” Bush v. State, 772 N.E.2d 1020, 1023-24 (Ind. Ct. App. 2002) (citing

      Zachary v. State, 469 N.E.2d 744, 749 (Ind. 1984)), trans. denied. Of course, “if

      the evidence indicates that one crime is independent of another crime, it is not

      an included offense.” Wilhelmus v. State, 824 N.E.2d 405, 416 (Ind. Ct. App.

      2005) (citing Ingram v. State, 718 N.E.2d 379 N.E.2d 381 (Ind. 1999)). Thus,

      whether an offense is included in another “requires careful examination of the

      facts and circumstances of each particular case.” Iddings v. State, 772 N.E.2d

      1006, 1017 (Ind. Ct. App. 2002), trans. denied.


[5]   We initially note that the State asserts that Corbin has waived his argument on

      appeal by pleading guilty in the trial court. In particular, the State relies on

      Mapp v. State, 770 N.E.2d 332, 334-35 (Ind. 2002), in which the Indiana

      Supreme Court stated that, generally, “[d]efendants waive a whole panoply of

      rights by voluntarily pleading guilty,” including “the right to attack collaterally

      one’s plea based on double jeopardy.” However, this court has repeatedly

      recognized that, “[w]hen a defendant pleads guilty without the benefit of a plea

      bargain,” as Corbin did, “there is no waiver.” Kunberger v. State, ___ N.E.3d

      ___, No. 02A03-1505-CR-304, 2015 WL 7753077, at *3 (Ind. Ct. App. Dec. 2,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1209| February 23, 2016   Page 4 of 5
      2015) (collecting cases). Accordingly, we reject the State’s argument that

      Corbin has waived his claim of error on appeal.


[6]   Turning to the merits of Corbin’s appeal, we cannot agree with his assertion

      that Count II was an inherently lesser included offense to Count I. As

      demonstrated by the factual basis presented to the trial court, had Corbin gone

      to trial the State would have presented evidence that showed two offenses. In

      particular, the State would have demonstrated that Corbin possessed heroin on

      his person at the time of his arrest that he “intended to deal . . . at various

      locations to various different people.” Tr. at 11. Those facts were the basis for

      Count I. The State then separately would have demonstrated that Corbin

      possessed an “additional approximately 11 grams of heroin” at his residence.

      Id. That fact formed the basis for Count II. Hence, the evidence demonstrated

      that Count II was independent of Count I; that is, Corbin separately committed

      dealing, as alleged in Count I, and possession, as alleged in Count II. Thus,

      Count II is not an included offense of Count I. See Wilhelmus, 824 N.E.2d at

      416; Iddings, 772 N.E.2d at 1017-18. We affirm Corbin’s conviction for Count

      II.


[7]   Affirmed.


      Riley, J., and May, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1209| February 23, 2016   Page 5 of 5
