MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                          May 23 2016, 9:22 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
Andrew J. Sickman                                       Gregory F. Zoeller
Boston Bever Klinge Cross & Chidester                   Attorney General of Indiana
Richmond, Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marvon Cole,                                            May 23, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        89A04-1508-CR-1248
        v.                                              Appeal from the Wayne Circuit
                                                        Court
State of Indiana,                                       The Honorable David A. Kolger,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        89C01-1408-F6-280



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A04-1508-CR-1248 | May 23, 2016      Page 1 of 6
[1]   Marvon Cole was convicted of Level 6 felony possession of a narcotic drug, 1

      Class A misdemeanor possession of a controlled substance, 2 and Class B

      misdemeanor possession of marijuana. 3 He was also found to be an habitual

      offender. 4 The court ordered the six-year sentence imposed in 89C01-1408-F6-

      280 (“FC-280”), the cause number in the current case, to be served consecutive

      to Cole’s sentence under cause number 89D03-1404-FC-39 (“FC-39”). 5 Cole

      appeals the order that the current sentence be served consecutive to the sentence

      in FC-39. We affirm.


                                     Facts and Procedural History
[2]   Cole was in the Wayne County Jail awaiting trial on a charge under FC-39 of

      Class C felony operating a motor vehicle while privileges are forfeited for life. 6

      Jail staff noticed an odor of marijuana coming from the unit where Cole was

      housed. Upon inspection, deputies discovered a plastic bag containing

      marijuana, heroin, buprenorphine, and a match secreted behind the intercom




      1
          Ind. Code § 35-48-4-6(a) (2014).
      2
          Ind. Code § 35-48-4-7(a) (2014).
      3
          Ind. Code § 35-48-4-11(a)(1) (2014).
      4
          Ind. Code § 35-50-2-8 (2014).
      5
        We note Cole’s brief refers to the cause number for that case as “89D03-1404-CM-000039,” (Appellant’s
      Amended Br. at 1), but other documents confirm the correct cause number is “89D03-1404-FC-39.” (See,
      e.g., App. at 138, 140.) His sentence of three years also indicates the crime was not a misdemeanor. See Ind.
      Code § 35-50-3-2 (maximum sentence for a Class A misdemeanor is one year).
      6
          Ind. Code § 9-30-10-17 (2013).


      Court of Appeals of Indiana | Memorandum Decision 89A04-1508-CR-1248 | May 23, 2016               Page 2 of 6
      faceplate in Cole’s cell. The State charged him with possession of those items

      under FC-280.


[3]   On August 25, 2014, the court sentenced Cole to three years under FC-39. On

      May 17, 2015, a jury found Cole guilty of the charges in FC-280, and the court

      imposed a six-year aggregate sentence. Thereafter, the trial court questioned

      whether the sentences in the two cases were required to run consecutively

      because the current crimes occurred while Cole was in jail for FC-39. After

      discussion with the parties, the trial court announced it would order consecutive

      sentences even if it had discretion to order them served concurrently:

              I think it’s mandatorily consecutive. And if it’s not, [Public
              Defender], I cannot imagine a circumstance where the defendant
              should get the benefit to [sic] concurrent sentencing by
              committing a crime while he’s incarcerated. I – I – I just can’t
              imagine that. So, if it – I’m taking the position that it’s
              mandatorily consecutive. It’s not – if it’s not, it’s going to be my
              discretion that it be served consecutive.


      (Tr. at 449.)


                                     Discussion and Decision
[4]   Cole asserts the trial court erred to the extent it believed it was required to order

      consecutive sentences. It did, but the error was harmless in light of the court’s

      other statements at sentencing.


[5]   A trial court must have statutory authority to impose consecutive sentences.

      Dragon v. State, 774 N.E.2d 103, 105 (Ind. Ct. App. 2002), trans. denied. Ind.


      Court of Appeals of Indiana | Memorandum Decision 89A04-1508-CR-1248 | May 23, 2016   Page 3 of 6
      Code § 35-50-1-2 controls whether sentences may be consecutive or concurrent.

      In part, it states:

              (d) If, after being arrested for one (1) crime, a person commits
              another crime:


                       (1) before the date the person is discharged from
                       probation, parole, or a term of imprisonment imposed for
                       the first crime; or


                       (2) while the person is released:


                                (A) upon the person’s own recognizance; or


                                (B) on bond;


              the terms of imprisonment for the crimes shall be served
              consecutively, regardless of the order in which the crimes are
              tried and sentences are imposed.


      Ind. Code § 35-50-1-2(d). 7


[6]   That language does not require consecutive sentences when, as here, a second

      offense was committed before sentencing for the first offense. See Sides v. State,

      490 N.E.2d 318, 320 (Ind. 1986) (“defendant who has not been sentenced for

      offense one at the time he commits offense two does not fall under the




      7
       After Cole’s offenses, the language of subsection (d) was moved to subsection (e). See P.L. 238-2015, SEC.
      16, eff. July 2015.

      Court of Appeals of Indiana | Memorandum Decision 89A04-1508-CR-1248 | May 23, 2016              Page 4 of 6
      mandatory sentences provision of the Code”), rev’d on other grounds on reh’g, 507

      N.E.2d 560 (Ind. 1986); Hutchinson v. State, 477 N.E.2d 850, 857 (Ind. 1985)

      (consecutive sentences not mandatory if defendant committed the second

      offense while awaiting sentencing on the first). Thus, because Cole committed

      the offenses in FC-280 while he was in jail awaiting trial on FC-39, Indiana

      Code § 35-50-1-2(d) did not mandate Cole’s sentences for the offenses in FC-

      280 to be served consecutive to the sentence for FC-39, and the trial court erred

      to the extent it determined the sentences for Cole’s crimes were “mandatorily

      consecutive.” (Tr. at 449.)


[7]   Nevertheless, any error was harmless because the trial court explained what it

      would do if it had discretion:

               I cannot imagine a circumstance where the defendant should get
               the benefit to [sic] concurrent sentencing by committing a crime
               while he’s incarcerated. I – I – I just can’t imagine that. So, if it
               – I’m taking the position that it’s mandatorily consecutive. It’s
               not – if it’s not, it’s going to be my discretion that it be served
               consecutive.


      (Id. at 449.) In light of the court’s statement, we cannot agree with Cole’s

      assertion the court “never really exercised any discretion at all.” (Appellant’s

      Amended Br. at 10.) 8




      8
       The trial court had discretion to order consecutive or concurrent sentences. Sandleben v. State, 29 N.E.3d
      126, 135 (Ind. Ct. App. 2015), trans. denied. Cole does not argue the trial court would have abused its
      discretion by ordering consecutive sentences. Accordingly we need not review the court’s exercise of
      discretion.

      Court of Appeals of Indiana | Memorandum Decision 89A04-1508-CR-1248 | May 23, 2016                Page 5 of 6
                                                Conclusion
[8]   As the court exercised its discretion, Cole’s only argument fails. Accordingly,

      we affirm.


[9]   Affirmed.


      Baker, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 89A04-1508-CR-1248 | May 23, 2016   Page 6 of 6
