MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Mar 21 2017, 9:11 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian A. Karle                                           Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey A. Rader,                                        March 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A05-1608-CR-1877
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas H. Busch,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Donald L. Daniel,
                                                         Senior Judge
                                                         Trial Court Cause No.
                                                         79C01-1511-F2-3



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1877 | March 21, 2017     Page 1 of 10
                                               Case Summary


[1]   Jeffrey Rader appeals following his convictions for Level 4 felony possession of

      cocaine and Level 2 felony dealing in cocaine and his adjudication as a habitual

      offender. Rader raises the following issues for our review:


              1. Did the State present sufficient evidence to support his dealing
              in cocaine conviction?


              2. Should this case be remanded for correction and clarification
              of the sentencing order?


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


                                       Facts & Procedural History


[3]   On November 18, 2015, police went to the La Quinta Inn in Lafayette to

      investigate a report that individuals with warrants were staying there. When

      Sergeant Adam Malady and Officer Jason Walters of the Lafayette Police

      Department arrived, hotel management also reported an odor of marijuana

      emanating from room 307. The officers knocked on the door of room 307 and

      a man opened the door. When the officers entered, they found three

      individuals in the living room portion of the suite. Additionally, Rader and a

      woman were found asleep on the bed in the bedroom portion of the suite.

      There was also a grocery bag on the bed, on which police found 2.76 grams of

      synthetic marijuana.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1877 | March 21, 2017   Page 2 of 10
[4]   Rader was arrested on an outstanding warrant, and during a search incident to

      arrest police found a bag containing 13.84 grams of cocaine hidden in Rader’s

      underwear. Additionally, a cell phone belonging to Rader and cash in the

      amount of $836 were found on the side of the bed where Rader had been lying.

      Subsequent analysis of the cell phone revealed photos of Rader holding large

      stacks of cash and a close-up photo of a hand holding a stack of cash and a bag

      of what appears to be cocaine. There were also text messages on the cell phone

      from individuals seeking to obtain cocaine, as well as outgoing messages

      containing references to cocaine. Some of the text messages referred to Rader

      by his full name and by his nickname, “Jodie Montana.” Exhibit Volume,

      State’s Ex. 17.


[5]   The State charged Rader with Count I, Level 4 felony possession of cocaine;

      Count II, Level 2 felony dealing in cocaine; and Count III, Class A

      misdemeanor possession of a synthetic drug. The State also alleged that Rader

      was a habitual offender. A jury trial was held on July 12, 2016, and Rader was

      found guilty of Counts I and II, but acquitted of Count III. Rader waived his

      right to a trial by jury for the enhancement phase, and following the

      presentation of evidence, the trial court found him to be a habitual offender.


[6]   The matter proceeded to sentencing on August 11, 2016. In its oral sentencing

      statement, the trial court imposed a one-year sentence on Count I and the

      advisory seventeen-and-a-half-year sentence on Count II, and ordered those

      sentences to run concurrently. The court then imposed a separate ten-year

      sentence on the habitual offender allegation and ordered it to run consecutive to

      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1877 | March 21, 2017   Page 3 of 10
      Count II, for a total of twenty-seven and a half years. The trial court ordered

      twenty years of the aggregate sentence to be executed at the Department of

      Correction, followed by two and a half years in community corrections, and

      then five years on probation.


[7]   In a written sentencing order entered the same day, the trial court imposed a

      one-year sentence on Count I and a twenty-year sentence on Count II and

      ordered those sentences to be served concurrently. The court then imposed a

      separate ten-year sentence on the habitual offender allegation and ordered it to

      run consecutive to Count II, for an aggregate sentence of thirty years. The

      court ordered further that twenty years of the sentence would be executed in the

      DOC, followed by two and a half years in community corrections, followed by

      five years on probation—leaving two and half years of the thirty-year aggregate

      sentence unaccounted for. On September 20, 2016, the trial court entered an

      amended sentencing order purporting to change the period of probation from

      five years to seven and a half years, but reaffirming the prior written sentencing

      statement in all other respects.1 Rader now appeals.




      1
        Rader notes a potential jurisdictional issue with the amended sentencing order. Rader filed his Notice of
      Appeal on August 17, 2016, and the Notice of Completion of Clerk’s Record was noted on the Chronological
      Case Summary on August 31, 2016. See Ind. Appellate Rule 8 (providing that the appellate court acquires
      jurisdiction on the date the Notice of Completion of Clerk’s Record is noted in the CCS); Jernigan v. State,
      894 N.E.2d 1044, 1046 (Ind. Ct. App. 2008) (noting that once an appeal is perfected, the trial court loses
      subject matter jurisdiction except for certain limited purposes). It therefore appears that the trial court lacked
      jurisdiction to enter the amended sentencing order on September 20, 2016. Because we remand this matter
      for correction of the sentencing order, we need not resolve this issue.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1877 | March 21, 2017                Page 4 of 10
                                          Discussion & Decision


                                     1. Sufficiency of the Evidence


[8]   Rader first argues that the State presented insufficient evidence to support his

      conviction for dealing in cocaine. In reviewing a challenge to the sufficiency of

      the evidence, we neither reweigh the evidence nor judge the credibility of

      witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead,

      we consider only the evidence supporting the conviction and the reasonable

      inferences flowing therefrom. Id. If there is substantial evidence of probative

      value from which a reasonable trier of fact could have drawn the conclusion

      that the defendant was guilty of the crime charged beyond a reasonable doubt,

      the judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137

      (Ind. Ct. App. 2008). It is not necessary that the evidence overcome every

      reasonable hypothesis of innocence; rather, the evidence is sufficient if an

      inference may reasonably be drawn from it to support the conviction. Drane v.

      State, 867 N.E.2d 144, 147 (Ind. 2007).


[9]   To convict Rader of Level 2 felony dealing in cocaine as charged, the State was

      required to prove that Rader possessed, with intent to deliver, pure or

      adulterated cocaine in an amount of ten grams or more. See Ind. Code § 35-48-

      4-1. Rader does not dispute that he possessed cocaine in an amount greater

      than ten grams. Instead, he argues that he possessed the cocaine for personal

      use only and that the State presented insufficient evidence to prove that he had

      the necessary intent to deliver. “Because intent is a mental state, triers of fact


      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1877 | March 21, 2017   Page 5 of 10
       generally must resort to the reasonable inferences arising from the surrounding

       circumstances to determine whether the requisite intent exists.” Love v. State,

       741 N.E.2d 789, 792 (Ind. Ct. App. 2001) (quoting McGuire v. State, 613 N.E.2d

       861, 864 (Ind. Ct. App. 1993), trans. denied). Although a conviction of

       possession with intent to deliver may be supported by circumstantial evidence,

       where the amount of the drug involved is less than twenty-eight grams, that

       evidence must consist of something more than the amount of the drug standing

       alone. Id.; I.C. § 35-48-4-1(b).


[10]   The State presented evidence that Rader possessed 13.84 grams of cocaine.

       Sergeant Malady testified that based on his training and experience, this is an

       amount greater than a common user would typically possess. Officer Walters

       testified that the cocaine had a street value between $1000 and $1300. In

       addition to evidence concerning the amount of cocaine Rader possessed, the

       State presented evidence that Rader was also found to be in possession of $836

       in cash. Sergeant Malady testified it was unusual for drug users to have so

       much cash because they typically use their money to buy drugs. Moreover,

       Rader’s cell phone contained several photographs taken in the few days

       preceding his arrest depicting Rader holding large amounts of cash.

       Additionally, there was a close-up picture of a hand holding a stack of cash

       together with a bag of drugs. The phone also contained numerous text

       messages from individuals seeking drugs. For example, one text read “I need

       more whats a ball cost me”, another read “I got 20 for some blow”, another

       read “U got a eight ball I need”, and yet another read “I told u I didn’t like


       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1877 | March 21, 2017   Page 6 of 10
       uppers an u cut it an put that shit in it and I know u did I can taste it damn

       man”. Exhibit Volume, State’s Exhibit 17. The phone also contained an

       outgoing text message that read “Ill be back by morning and i got some decent

       ass white girl.” Id. The State presented testimony that the terms used in these

       text messages were street slang for cocaine. This evidence, when taken

       together, was more than sufficient to support a reasonable inference that Rader

       possessed the requisite intent to deliver cocaine, and Rader’s arguments to the

       contrary are nothing more than requests to reweigh the evidence.


                                                 2. Sentencing


[11]   Next, Rader argues that it is necessary to remand this case for correction and

       clarification of the sentencing order. Specifically, Rader argues that we should

       remand with instructions that Rader’s sentence be corrected to reflect the

       sentence set forth in the trial court’s oral sentencing statement. The State agrees

       that remand is necessary due to discrepancies between the oral and written

       sentencing statements, but argues that we should leave it to the trial court to

       resolve which sentencing statement most accurately reflects its intent.


[12]   “When oral and written sentencing statements conflict, we examine them

       together to discern the intent of the sentencing court.” Walker v. State, 932

       N.E.2d 733, 738 (Ind. Ct. App. 2010). “Rather than presuming the superior

       accuracy of the oral statement, we examine it alongside the written sentencing

       statement to assess the conclusions of the trial court.” Dowell v. State, 873

       N.E.2d 59, 60 (Ind. 2007) (quoting McElroy v. State, 865 N.E.2d 584, 589 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1877 | March 21, 2017   Page 7 of 10
       2007)). Where the oral and written sentencing statements conflict, this court

       has the option of crediting the statement that accurately pronounces the

       sentence or remanding for resentencing. McElroy, 865 N.E.2d at 589.


[13]   As set forth above, there are discrepancies between the trial court’s written and

       oral sentencing statements. In its oral sentencing statement, the trial court

       imposed an aggregate sentence of twenty-seven and a half years, with twenty

       years executed in the DOC, two and a half years on community corrections,

       and five years on probation. The written sentencing statement entered the same

       day, however, imposed a thirty-year aggregate sentence, with twenty years

       executed in the DOC, two and half years on community corrections, and five

       years on probation—leaving two and half years of the aggregate sentence

       unaccounted for. The amended written statement, although perhaps entered in

       excess of the trial court’s jurisdiction, purports to impose an aggregate sentence

       of thirty years, with twenty years executed in the DOC, two and half years on

       community corrections, and seven and half years on probation. While there are

       clear discrepancies between the oral and written sentencing statements, we

       cannot agree with Rader’s assertion that the trial court’s true intent is

       unequivocally expressed in its oral sentencing statement. Because the trial

       court’s intent is unclear, we remand and instruct the trial court to enter a new

       sentencing statement clarifying its intent.


[14]   We also note other sentencing errors that must be corrected on remand. First,

       in both the oral and written sentencing statements, the trial court treated

       Rader’s habitual offender status as a separate crime and ordered it to run

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1877 | March 21, 2017   Page 8 of 10
       consecutive to the sentence imposed on Count II. Ind. Code § 35-50-2-8(j)

       specifically provides that “[h]abitual offender is a status that results in an

       enhanced sentence. It is not a separate crime and does not result in a

       consecutive sentence.” Rather, the trial court “shall attach the habitual

       offender enhancement to the felony conviction with the highest sentence

       imposed and specify which felony count is being enhanced.” Id.


[15]   Additionally, although not argued by either party, we note two other problems

       with the sentences imposed. First, the minimum sentence for Count I, a Level

       4 felony, was two years. See I.C. § 35-50-2-5.5 (providing that the sentencing

       range for a Level 4 felony is between two and twelve years). Nevertheless, the

       trial court imposed a sentence of one year for that conviction. More

       importantly, however, we note an obvious double jeopardy violation. See

       Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App. 2015) (explaining that

       questions of double jeopardy implicate fundamental rights and therefore may be

       raised by this court sua sponte), trans. denied. Where the same cocaine supports

       both a possession and a dealing charge, possession is a lesser-included offense

       of dealing. Harrison v. State, 901 N.E.2d 635, 643 (Ind. Ct. App. 2009), trans.

       denied. “Where the conviction of a greater crime cannot be had without

       conviction of the lesser crime, the double jeopardy clause bars separate

       conviction and sentencing on the lesser crime when sentencing is imposed on

       the greater one.” Id. at 643-44 (quoting Mason v. State, 532 N.E.2d 1169, 1172

       (Ind. 1989)). Here, the only cocaine introduced into evidence was the 13.84

       grams found in Rader’s underwear. Because the same cocaine supported both

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1877 | March 21, 2017   Page 9 of 10
       the dealing and the possession offenses, Rader may not be convicted and

       sentenced on both the greater and the lesser offenses. We therefore reverse

       Rader’s possession conviction and remand with instructions to vacate that

       conviction and the sentence imposed thereon.


[16]   Judgment affirmed in part, reversed in part, and remanded with instructions.


[17]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1877 | March 21, 2017   Page 10 of 10
