                                                                                FILED
                                                                           Aug 04 2017, 10:00 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy P. Broden                                         Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana

                                                          Michael Gene Worden
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Arrion Walton,                                            August 4, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A04-1604-CR-768
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
State of Indiana,                                         The Honorable Randy J. Williams,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          79D01-1505-F2-02



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                         Page 1 of 21
                                           Case Summary
[1]   Indiana Code section 35-47-4-5 provides that “[a] serious violent felon who

      possesses a firearm commits unlawful possession of a firearm by a serious

      violent felon” (“SVF”). In Taylor v. State, 929 N.E.2d 912 (Ind. Ct. App. 2010),

      trans. denied, we held that our General Assembly’s use of the singular phrase

      “possesses a firearm” means that a serious violent felon who possesses more

      than one firearm has committed more than one offense. Consistent with that

      holding, Arrion Walton was convicted of multiple counts of SVF (along with

      various drug crimes) after being found in possession of multiple firearms.

      Today we reaffirm Taylor and uphold Walton’s SVF convictions. However, we

      find that Walton’s sixty-four-year sentence is inappropriate, and we remand this

      matter to the trial court for imposition of a sentence of forty-two years.



                             Facts and Procedural History
[2]   On five days in early 2015—January 30, February 2, April 8, April 23, and May

      8—the Tippecanoe County Drug Task Force used a confidential informant to

      purchase cocaine from Walton. Then, on May 11, the police conducted

      searches at two apartments Walton was renting on two different floors of the

      same building. In the downstairs apartment, in which Walton was residing,

      officers found cocaine and a Bersa handgun. In the upstairs apartment, officers

      found additional cocaine, a Ruger handgun, and a Phoenix Arms handgun.




      Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017      Page 2 of 21
[3]   With regard to the five controlled cocaine buys, the State charged Walton with

      five counts of dealing in cocaine: one Level 2 felony for the April 23

      transaction, three Level 3 felonies, and one Level 4 felony. The State also

      charged him with the lesser-included offense of possession of cocaine as to each

      of the five buys. Furthermore, in relation to the search on May 11, the State

      charged Walton with six additional counts: Level 2 felony dealing in cocaine—

      possession with intent to deliver (based on the cocaine found in the downstairs

      apartment), Level 3 felony possession of cocaine (based on the cocaine found in

      the upstairs apartment), Level 2 felony conspiracy to commit dealing in

      cocaine, Level 6 felony maintaining a common nuisance, and two counts of

      Level 4 felony unlawful possession of a firearm by a serious violent felon

      (“SVF”) (one based on the Bersa found in the downstairs apartment and one

      based on the Ruger and the Phoenix Arms found in the upstairs apartment). In

      addition, the State accused Walton of being a habitual offender based on his

      prior felony convictions.


[4]   Walton was found guilty of all the charges listed above and was found to be a

      habitual offender. In sentencing Walton, the trial court distinguished the

      convictions relating to the controlled buys from the convictions relating to the

      search on May 11. Regarding the charges arising from the five controlled buys,

      the trial court merged the possession counts into the dealing counts and entered

      convictions and sentences on the dealing counts only. On the most serious

      dealing count, the Level 2 felony (Count IX), the trial court imposed a sentence

      of twenty-four years, enhanced by ten years based on the habitual-offender


      Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017   Page 3 of 21
      finding, for a total of thirty-four years. The court imposed shorter sentences for

      the other four dealing convictions and ordered them to run concurrently with

      the thirty-four-year sentence for the Level 2 felony.1


[5]   As for the convictions arising from the search, the trial court imposed sentences

      of twenty-four years for dealing in cocaine—possession with intent to deliver,

      thirteen years for possession of cocaine, twenty-four years for conspiracy to

      commit dealing in cocaine, two years for maintaining a common nuisance, and

      eight years for each SVF count. However, the court also found that these six

      offenses constituted an “episode of criminal conduct” subject to a maximum

      total sentence of thirty years under Indiana Code section 35-50-1-2(c), and it

      sentenced Walton accordingly. The trial court then ordered that thirty-year

      sentence to run consecutive to the thirty-four-year sentence for the controlled

      buys, for a total sentence of sixty-four years.

[6]   Walton now appeals.




      1
        During the sentencing hearing, the trial court made two errors with respect to the controlled-buy counts.
      First, it said that it was merging only four of the possession counts with their corresponding dealing counts,
      instead of all five. Second, it said that it was imposing sentences for each of the possession counts, even
      though they were to be merged into the dealing counts. However, neither error is present in the trial court’s
      written Sentencing Order or the Abstract of Judgment, both of which indicate convictions and sentences for
      the dealing counts only. As such, there is nothing to be gained from remanding this matter to the trial court
      for further proceedings on this issue. The dissent suggests that merging the possession counts was an
      inadequate solution and that we should instruct the trial court to “vacate” them, but our Supreme Court has
      made clear that merger is sufficient. Green v. State, 856 N.E.2d 703 (Ind. 2006) (“Where the court merges the
      lesser-included offense without imposing judgment, there is no need to remand on appeal to ‘vacate.’”); see
      also Carter v. State, 750 N.E.2d 778, 781 (Ind. 2001) (“[A] jury verdict on which the court did not enter
      judgment for one reason or another (merger, double jeopardy, etc.) is unproblematic[.]”).

      Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                           Page 4 of 21
                                 Discussion and Decision
[7]   Walton contends that his two SVF convictions constitute double jeopardy

      under Article 1, Section 14 of the Indiana Constitution and that his sentence is

      inappropriate.


                                         I. Double Jeopardy
[8]   Walton’s first argument is that his two SVF convictions fail the actual-evidence

      test under the double-jeopardy clause of the Indiana Constitution. “Under the

      actual-evidence test, we examine the actual evidence presented at trial in order

      to determine whether each challenged offense was established by separate and

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

      “To find a double-jeopardy violation under this test, we must conclude that

      there is ‘a reasonable possibility that the evidentiary facts used by the fact-finder

      to establish the essential elements of one offense may also have been used to

      establish the essential elements of a second challenged offense.’” Id. (quoting

      Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999)). Here, the first SVF count

      was specifically based on the handgun found in the downstairs apartment, and

      the second count was specifically based on the handguns found in the upstairs

      apartment, and Walton gives us no reason to believe that he was actually

      convicted of the two counts based on the same evidence, i.e., the same gun.

      Therefore, Walton’s double-jeopardy claim fails.

[9]   The dissent addresses an issue that Walton has not raised: whether multiple

      SVF convictions based on the simultaneous possession of multiple firearms are

      Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017    Page 5 of 21
       ever permissible under the SVF statute, Indiana Code section 35-47-4-5. The

       statute provides, in pertinent part, “A serious violent felon who knowingly or

       intentionally possesses a firearm commits unlawful possession of a firearm by a

       serious violent felon, a Level 4 felony.” Ind. Code § 35-47-4-5(c). In Taylor v.

       State, we held that the General Assembly’s use of the singular “possesses a

       firearm” reflects its intent to allow a separate conviction for each firearm a

       serious violent felon possesses. 929 N.E.2d 912, 921 (Ind. Ct. App. 2010), trans.

       denied; see also Daugherty v. State, 52 N.E.3d 885, 892 (Ind. Ct. App. 2016) (citing

       Taylor for proposition that Section 35-47-4-5(c) “provides that each unlawful

       possession of a weapon is considered to be a separate and distinct act, and

       therefore each unlawful possession is a separate and distinct offense.”), trans.

       denied. The dissent concludes that Taylor was wrongly decided. We disagree.


[10]   If our legislature had intended to allow only a single possession conviction

       regardless of the number of firearms possessed, it could have used the phrase

       “possesses one or more firearms,” see State v. Stratton, 567 A.2d 986, 989 (N.H.

       1989), or “possesses any firearm,” see, e.g., United States v. Valentine, 706 F.2d

       282, 292-94 (10th Cir. 1983), instead of “possesses a firearm.” It has thus far

       chosen not to do so. We also note that our interpretation of section 35-47-4-5(c)

       in Taylor is consistent with the way courts around the country have interpreted

       similar statutes. See, e.g., State v. Kidd, 562 N.W.2d 764, 765-66 (Iowa 1997)

       (collecting cases); Stratton, 567 A.2d at 989; State v. Gutierrez, 381 P.3d 254, 260

       (Ariz. Ct. App. 2016) (collecting cases, including Taylor), rev. denied; State v.

       Lindsey, 583 So. 2d 1200, 1203-04 (La. Ct. App. 1991), writ denied. For these

       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017     Page 6 of 21
       reasons and the other reasons stated in Taylor, Walton’s SVF convictions are

       permissible under the language of the SVF statute.

[11]   While we reject Walton’s challenge to his SVF convictions, we find, sua sponte,

       that one of his other convictions must be vacated to avoid a double-jeopardy

       violation. In relation to the search on May 11, Walton was convicted of one

       count of dealing in cocaine—possession with intent to deliver, based on the

       cocaine found in the downstairs apartment (Count XIII), and a separate count

       of possession of cocaine, based on the cocaine found in the upstairs apartment

       (Count XIV). However, this Court has held that a defendant cannot be

       convicted of two counts of drug possession (including possession with intent to

       deliver) based on two quantities of drugs simultaneously possessed in two

       closely related locations. Donnegan v. State, 809 N.E.2d 966, 974-75 (Ind. Ct.

       App. 2004) (possession on person, in residence, and in trash outside residence),

       trans. denied; see also Campbell v. State, 734 N.E.2d 248, 250-51 (Ind. Ct. App.

       2000) (possession on person and in residence); Young v. State, 564 N.E.2d 968,

       972 (Ind. Ct. App. 1991) (possession on person and in vehicle), aff’d on reh’g,

       trans. denied. Therefore, we must remand this matter to the trial court with

       instructions to vacate the judgment of conviction and the sentence on Count

       XIV.


                                               II. Sentencing
[12]   Walton also asks us to reduce his sentence pursuant to Indiana Appellate Rule

       7(B), which provides that an appellate court “may revise a sentence authorized


       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017    Page 7 of 21
       by statute if, after due consideration of the trial court's decision, the Court finds

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

       character of the offender.” Because we generally defer to the judgment of trial

       courts in sentencing matters, defendants have the burden of persuading us that

       their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind.

       Ct. App. 2016). “Whether a sentence is inappropriate ultimately turns on the

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

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

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).


[13]   Walton asserts that running the sentences for the drug-related convictions

       arising from the search on May 11 (dealing in cocaine, conspiracy to commit

       dealing in cocaine, and maintaining a common nuisance) consecutive to the

       sentence for the earlier controlled buys is inappropriate under Beno v. State, 581

       N.E.2d 922 (Ind. 1991), and its progeny. We agree. In Beno, the defendant was

       convicted of two counts of dealing in cocaine and one count of maintaining a

       common nuisance after two controlled buys at his house, and the trial court

       ordered him to serve consecutive sentences on the three counts. On appeal, our

       Supreme Court held that “because the crimes committed were nearly identical

       State-sponsored buys, consecutive sentences were inappropriate.” Id. at 924.

       More recently, in Eckelbarger v. State, the Court extended the Beno principle to

       hold that consecutive sentences were inappropriate for drug convictions arising

       from two controlled buys and a subsequent search of the defendant’s home. 51

       N.E.3d 169 (Ind. 2016). The Court reasoned that the sentences arising from the


       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017     Page 8 of 21
       search should be served concurrently with the sentences arising from the

       controlled buys because the convictions arising from the search were

       “supported by evidence seized pursuant to a search warrant procured based on

       the dealing methamphetamine by delivery counts[.]” Id. at 170. In a case

       similar to Eckelbarger—drug convictions arising from two controlled buys and

       the resultant home search—this Court held that the principle that “the State

       may not ‘pile on’ sentences by postponing prosecution in order to gather more

       evidence . . . applies equally to convictions arising from evidence gathered as a

       direct result of the State-sponsored criminal activity.” Williams v. State, 891

       N.E.2d 621, 635 (Ind. Ct. App. 2008); see also Bell v. State, 881 N.E.2d 1080,

       1087-88 (Ind. Ct. App. 2008), trans. denied.


[14]   Here, as in Eckelbarger and Williams, a series of controlled buys led to a search of

       Walton’s apartments. The controlled buys resulted in five dealing convictions,

       and the subsequent search resulted in additional drug-related convictions.

       Because these additional drug-related convictions are supported by evidence

       seized as a direct result of the controlled buys, we agree with Walton that

       running the sentences for any of them consecutive to the sentences for the

       controlled buys would be inappropriate.2




       2
         The State does not address Eckelbarger. It argues that Williams is distinguishable from this case because the
       buys and search in Williams took place over three days while the buys and search in this case spanned more
       than three months. The State does not cite any authority in support of its argument that the Beno rationale
       applies only when the events occur “within a few days of each other.” Appellee’s Br. p. 19. To the contrary,
       this Court has held that consecutive sentences are inappropriate for convictions arising from five controlled
       buys conducted over the course of two months. Hendrickson v. State, 690 N.E.2d 765 (Ind. Ct. App. 1998).

       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                            Page 9 of 21
[15]   Therefore, we remand this matter to the trial court for the imposition of a

       sentence of forty-two years: thirty-four years on Count IX (with the shorter

       sentences on the remaining drug-related convictions to run concurrently) and

       eight years on each of the SVF convictions, to run concurrently with one

       another but consecutive to Count IX (Walton acknowledges that his gun

       possession is distinguishable from his drug crimes and is not subject to the

       Beno/Eckelbarger principle). In making these changes, the trial court must also

       reduce the sentences for Count XIII (dealing in cocaine) and Count XV

       (conspiracy to commit dealing in cocaine) from twenty-four years to twenty-two

       years, so as to avoid any potential claim of error under the “episode of criminal

       conduct” statute, Indiana Code section 35-50-1-2.3

[16]   Affirmed in part and reversed and remanded in part.




       The State also contends Walton’s conviction for maintaining a common nuisance “does not fall within the
       rationale of the Beno rule.” Appellee’s Br. p. 18. As already noted, however, one of the sentences ordered
       concurrent by the Supreme Court in Beno was for maintaining a common nuisance.
       3
         The version of Section 35-50-1-2(c) that was in effect when Walton committed his offenses provided that
       “the total of the consecutive terms of imprisonment to which the defendant is sentenced” for a non-violent
       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.” Ind. Code Ann.
       § 35-50-1-2(c) (West 2012). Here, the trial court found that the May 11 offenses constituted an episode of
       criminal conduct, so the total of the consecutive terms of imprisonment could not exceed thirty years, the
       advisory sentence for a Level 1 felony (the most serious offense on May 11 having been a Level 2 felony).
       The trial court correctly identified this thirty-year cap and said that it was imposing a cumulative sentence of
       thirty years for the May 11 offenses, but it failed to impose individual sentences that actually added up to
       thirty years. Instead, it indicated that it was imposing sentences of twenty-four years for dealing in cocaine,
       twenty-four years for conspiracy to commit dealing in cocaine, two years for maintaining a common
       nuisance, and eight years for each SVF conviction. Because the eight years on the SVF convictions run
       consecutive to the concurrent sentences on the drug-related convictions, including the sentences for the May
       11 dealing and conspiracy, the latter sentences must be reduced to twenty-two years to reach the thirty-year
       cap.

       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                           Page 10 of 21
Robb, J., concurs.

Bailey, J, dissents with separate opinion.




Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017   Page 11 of 21
ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy P. Broden                                         Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana

                                                          Michael Gene Worden
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Arrion Walton,                                            August 4, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A04-1604-CR-768
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
State of Indiana,                                         The Honorable Randy J. Williams,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          79D01-1505-F2-02



Bailey, Judge dissenting




Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017               Page 12 of 21
[17]   I would resolve this case differently from the majority in three respects. First, I

       would conclude that the SVF statute does not support two convictions under

       these facts. Second, because the trial court orally entered judgment of

       conviction on the lesser-included possession counts, and having already

       identified multiple issues with the sentencing order, I would instruct the trial

       court to vacate the lesser-included counts that it later merged. Third, although I

       agree that Walton’s drug-related counts warrant concurrent sentences under

       Beno and its progeny, in light of the resultant conflict with the statutory

       sentencing limit as well as the impact on the aggregate length of Walton’s

       sentence, I would defer to the trial court and remand for resentencing.



                                            SVF Convictions
[18]   Walton was convicted of multiple SVF counts based on his constructive

       possession of multiple firearms. If the SVF statute does not authorize more

       than one conviction under these facts, then Walton’s convictions run afoul of

       principles of double jeopardy. It is essential, then, to look to the SVF statute,4




       4
         The majority notes that Walton has not challenged the SVF statute, yet appellate courts “must address
       double jeopardy violations sua sponte where they exist because ‘a double jeopardy violation, if shown,
       implicates fundamental rights.’” Montgomery v. State, 21 N.E.3d 846, 864 n.5 (Ind. Ct. App. 2014) (quoting
       Smith v. State, 881 N.E.2d 1040, 1047 (Ind. Ct. App. 2008)), trans. denied. Thus, just as it was appropriate for
       the majority to sua sponte identify a double jeopardy issue concerning two of Walton’s cocaine-related
       convictions, it is appropriate to evaluate the SVF statute to fairly consider Walton’s fundamental rights.

       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                            Page 13 of 21
       which states that a serious violent felon may not “knowingly or intentionally

       possess a firearm.” I.C. § 35-47-4-5(c).

[19]   The SVF statute uses the singular language “possesses a firearm,” but it is not

       clear whether that permits a separate conviction for each and every firearm or a

       single conviction for all firearms possessed. On the one hand, this singular

       language could be viewed as reflecting an intent to allow a separate conviction

       for each and every firearm—the majority concludes as much, relying on Taylor

       v. State, 929 N.E.2d 912 (Ind. Ct. App. 2010), trans. denied. On the other hand,

       however, it is equally plausible that the legislature selected the singular

       language “possesses a firearm” to ensure a conviction for the possession of one

       or more firearms. The majority points out that the legislature could have used

       more precise language if it had intended to allow a single conviction regardless

       of the number of firearms possessed—and it is right. But, the legislature could

       also have been more precise and enacted a statute that expressly permits a

       conviction for each and every firearm. Yet, nothing on the face of the statute

       evinces a clear intent either way. Thus, the instant statute is ambiguous.5 See

       Day v. State, 57 N.E.3d 809, 813 (Ind. 2016) (“[A] statute is ambiguous when it

       allows more than one reasonable interpretation.”).




       5
         To the extent that my statutory analysis parts ways with Taylor, I would conclude that Taylor should not be
       afforded legislative acquiescence, given the short time that has passed since the case was decided and that the
       Indiana Supreme Court has not yet addressed this issue. See Layman v. State, 42 N.E.3d 972, 978 (Ind. 2015)
       (noting “that a judicial interpretation of a statute, particularly by the Indiana Supreme Court, accompanied
       by substantial legislative inaction for a considerable time, may be understood to signify the General
       Assembly’s acquiescence and agreement with the judicial interpretation”).

       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                          Page 14 of 21
[20]   For support, the majority is inclined to look to “the way courts around the

       country have interpreted similar statutes.” Slip op. at 6. However, our role is

       to instead apply Indiana law—and when we are faced with an ambiguous

       statute, we turn to our canons of construction to discern the legislature’s intent.

       See Day, 57 N.E.3d at 813; see also Consumer Attorney Servs., P.A. v. State, 71

       N.E.3d 362 (Ind. 2017). No canon is absolute, rather, these “‘rules or maxims

       of construction are flexible aids to the search for meaning.’” Brownsburg Area

       Patrons Affecting Change v. Baldwin, 714 N.E.2d 135, 139 (Ind. 1999). Moreover,

       the legislature has codified several canons in articulating general rules of

       construction for the Indiana Code. See I.C. § 1-1-4-1 (setting forth rules of

       construction, and noting that “[t]he construction of all statutes of this state shall

       be by [these] rules, unless the construction is plainly repugnant to the intent of

       the legislature or of the context of the statute”).

[21]   Because this is a criminal case, the rule of lenity applies. See Day, 57 N.E.3d at

       813; Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012); Johnson v. State, No.

       32A05-1604-CR-703, slip op. at 2, 8 (Ind. Ct. App. Apr. 19, 2017). Under this

       rule, appellate courts are to “interpret[] the statute in the defendant’s favor as

       far as the language can reasonably support.” Day, 57 N.E.3d at 813. Thus, if a

       reasonable interpretation of the SVF statute is that multiple firearms give rise to

       only one offense, then that interpretation controls. Cf. Am. Film Distributors, Inc.

       v. State, 471 N.E.2d 3, 5 (Ind. Ct. App. 1984) (“Unless there appears in the

       statute a clear intent to fix separate penalties . . . the issue should be resolved

       against turning a single transaction into multiple offenses.”), trans. denied.

       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017     Page 15 of 21
[22]   There is also the “‘well-settled rule . . . that words used in their singular include

       also their plural.’” See Gaddis v. McCullough, 827 N.E.2d 66, 71 (Ind. Ct. App.

       2005), trans. denied; see also Floyd Cty. v. City of New Albany, 1 N.E.3d 207, 217

       (Ind. Ct. App. 2014) (noting the same general rule), trans. denied. Indeed, the

       legislature has codified this common-law principle, expressly providing that

       “[w]ords importing the singular number only may be also applied to the plural

       of persons and things.” I.C. § 1-1-4-1(3). This principle lends support to the

       reading that the singular language used in the statute—“possesses a firearm”—

       requires that the possession of multiple firearms amounts to one offense, and

       thus only one of Walton’s convictions can stand.

[23]   Also informative is the principle of in pari materia, which provides that related

       statutes may help us discern legislative intent. See Klotz v. Hoyt, 900 N.E.2d 1, 5

       (Ind. 2009). “Statutes are in pari materia—pertain to the same subject matter—

       when they relate to the same person or thing, to the same class of persons or

       things, or have the same purpose or object.” 2B Norman J. Singer & J.D.

       Shambie Singer, Sutherland Statutes and Statutory Construction § 51:3, at 222

       (7th ed. 2007) (footnotes omitted). This principle reflects the notion that

       “[s]tatutes relating to the same general subject matter . . . ‘should be construed

       together so as to produce a harmonious statutory scheme.’” Klotz, 900 N.E.2d

       at 5 (quoting Sanders v. State, 466 N.E.2d 424, 428 (Ind. 1984)); see also, e.g.,

       State v. Gerhardt, 44 N.E. 469, 476 (1896) (observing that all laws regulating

       liquor traffic are in pari materia).




       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017    Page 16 of 21
[24]   Under the principle of in pari materia, courts are to consider comparable statutes

       when examining the statute at issue. Here, the statute concerns firearms and

       prohibits those with a certain status—serious violent felons—from possessing

       them. See I.C. § 35-47-4-5(c). Yet, generally, it is not unlawful to possess a

       firearm, and our body politic has decided that there is nothing inherent in most

       guns6 that makes their possession illegal. Rather, it is the status of the person

       possessing the gun that determines whether the possession of it is illegal. In the

       instant case, a determination was made that Walton, having been proven to be

       a serious violent felon, was also found to be in possession of a firearm.

       Similarly, there are status offenses making it a crime for a convicted domestic

       batterer to possess a firearm, see I.C. § 35-47-4-6, just as it is a crime to carry a

       handgun without the proper license to do so. See I.C. § 35-47-2-1.


[25]   At bottom, the possession of guns is lawful for some but not lawful for all. In

       this sense, the statute prohibiting those under the age of twenty-one from

       “possess[ing] an alcoholic beverage” is related to the instant statute, in that

       being underage is an identifiable status and alcohol is otherwise lawful to

       possess. See I.C. § 7.1-5-7-7. Related in this way, too, is the statute prohibiting

       the possession of cocaine or narcotic drugs by those who lack the proper status:

       holding a valid prescription.7 See I.C. § 35-48-4-6. Notably, though, in




       6
           See I.C. § 35-47-5-8 (providing that it is a criminal offense to possess a machine gun).
       7
         Of note, these status-based offenses differ in a key respect from pure possession offenses. That is, unlike the
       offense of possession of child pornography, for example, where each image constitutes an additional affront
       to the victim or victims, here, the possession of a gun—without more—is not illegal. See, e.g., Brown v. State,

       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                            Page 17 of 21
       criminalizing the possession of certain drugs by non-prescription-holders, the

       legislature expressly elevated the offense based on the quantity of drugs in

       possession. See id. (providing, e.g., that the offense is a Level 4 felony if “the

       amount of the drug involved is at least ten (10) but less than twenty-eight (28)

       grams” and elevating the offense to a Level 3 felony if the amount is at least

       twenty-eight grams). Here, however, the legislature did not provide for

       elevation of the instant offense based on the quantity of firearms in possession,

       just as the legislature did not elevate the offense of underage possession of

       alcohol based on the quantity possessed. Yet, just because the legislature

       created an elevation framework for certain offenses and not for other offenses, it

       does not necessarily follow that, here, the legislature intended to create a

       distinct punishable offense for each item of contraband. Rather, the lack of a

       quantity-based elevation scheme does not, in and of itself, unambiguously speak

       to the intended number of punishable offenses.

[26]   Continuing with the principle of in pari materia, it is useful to take a closer look

       at those statutes contained in Article 47, which concerns weapons and

       instruments of violence, the same general subject matter as the instant statute.

       Within Article 47, Indiana Code section 35-47-2-3 sets forth the process to

       obtain a license to carry a handgun. This statute is closely related to the instant

       statute because it involves the same subject—guns—as well as a similar object—




       912 N.E.2d 881 (Ind. Ct. App. 2009) (conducting statutory interpretation and providing a thoughtful analysis
       of the harms and policy concerns associated with child pornography).

       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                        Page 18 of 21
       controlling who may lawfully carry them. Further, just as it is a criminal

       offense for a serious violent felon to possess a firearm, it is a criminal offense to

       carry a handgun without a license. See I.C. §§ 35-47-2-1, 35-47-2-3.


[27]   Turning to the licensing statute, it is notable that the statute refers to the license

       as a “license to carry a handgun.” See I.C. § 35-47-2-3. Indeed, the legislature

       selected the singular form, not the plural “license to carry handguns.” See id.

       Yet, the “license to carry a handgun” allows the licensee to carry not just one

       handgun, but “any handgun lawfully possessed by the applicant.” See I.C. § 35-

       47-2-3(e). Thus, in drafting a closely related statute, the legislature chose to

       create a “license to carry a handgun” that is repeatedly expressed in the

       singular, but nevertheless not limited to a single handgun. Given the

       legislature’s choice to use the singular there and here, it would be illogical to

       conclude that, here, the legislature clearly expressed the intent to establish a

       separate offense for each weapon. Rather, the singular language in the licensing

       statute supports the reading that the instant language—“possesses a firearm”—

       extends to all firearms possessed at a given time, creating a single status offense.

[28]   Ultimately, in light of these canons of construction, it is reasonable to construe

       the instant statute as criminalizing—as a single punishable offense—the status

       of being a serious violent felon in possession of one or more firearms.

       Therefore, under the rule of lenity, the statute must be interpreted in Walton’s

       favor. See Day, 57 N.E.3d at 813 (noting that statutes must be “interpret[ed] in

       the defendant’s favor as far as the language can reasonably support”). Thus, I

       would conclude that when a serious violent felon possesses multiple firearms,

       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017     Page 19 of 21
       the possession gives rise to only one offense8 under Indiana Code section 35-47-

       4-5(c), and, accordingly, only one of Walton’s SVF counts may stand.



                                   Lesser-included Offenses
[29]   The majority acknowledges that, during the sentencing hearing, the trial court

       made two errors relating to the controlled-buy counts. I recognize, as the

       majority does, that neither error is present in the written Sentencing Order and

       Abstract of Judgment, and I agree with the majority that merger is typically

       sufficient. However, immediately after the jury returned its verdict, the trial

       court orally “enter[ed] judgment of conviction [on] the counts.” Tr. Vol. V at

       105. Thus, given that the trial court orally entered judgment of conviction,

       there were errors at the sentencing hearing concerning these counts, and there

       are additional errors in this case requiring remand, I would instruct the trial

       court to vacate the lesser-included offenses. Cf. Carter v. State, 750 N.E.2d 778,

       781 n.8 (Ind. 2001) (“[A] claim of multiple punishment for the same offense

       requires multiple judgments of conviction, entered by the trial court.”); Green v.

       State, 856 N.E.2d 703. 704 (Ind. 2006) (“Where the court merges the lesser-

       included offense without imposing judgment, there is no need to remand on

       appeal to ‘vacate.’).




       8
         Notably, though, the quantity of firearms may be pertinent, not as to the number of counts, but as a
       circumstance warranting an aggravated sentence. See I.C. § 35-38-1-7.1 (setting forth, without limitation,
       circumstances that the trial court may consider in imposing a sentence). That is, when a serious violent felon
       possesses multiple firearms, the felon has undertaken actions exceeding those that constitute the offense.

       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                         Page 20 of 21
                                       Appellate Rule 7(B)
[30]   I agree with the majority’s application of Beno and Eckelbarger. That is, given

       the close nexus between the State-sponsored purchases and the State’s ability to

       procure Walton’s drug-related convictions, I would also instruct the trial court

       to run Walton’s drug-related counts concurrently. However, given that doing

       so generates a conflict with the statutory sentencing limit and effects a notable

       change to the aggregate sentence length selected by the trial court, I would defer

       to the judgment of the trial court and remand for resentencing.

[31]   For these reasons, I must respectfully dissent.




       Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017   Page 21 of 21
