Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                   Nov 25 2013, 5:49 am
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:

MARIELENA DUERRING                              GREGORY F. ZOELLER
South Bend, Indiana                             Attorney General of Indiana

                                                MARJORIE LAWYER-SMITH
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DORIAN STEPHENS,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 20A05-1304-CR-175
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ELKHART CIRCUIT COURT
                        The Honorable Terry C. Shewmaker, Judge
                             Cause No. 20C01-1104-FB-12



                                    November 25, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          In this case, appellant-defendant Dorian Stephens argues that the State violated his

due process rights when it failed to produce its cooperating sources. The State used these

sources in its investigation of Stephens, who was ultimately charged with and convicted

of three counts of Dealing in a Narcotic,1 a class B felony, and one count of Money

Laundering,2 a class D felony. Stephens contends that these cooperating sources were

material witnesses and, therefore, the State’s failure to produce them constitutes a

violation of due process.

          Additionally, both Stephens and the State point to an ambiguity in the sentencing

process, as the sentence the trial court announced in its oral sentencing statement differs

from the sentence set forth in the written sentencing order and Abstract of Judgment. In

addition, the State avers that the trial court incorrectly sentenced Stephens to an

additional twenty-year term because of Stephens’s status as an habitual offender.3

          We affirm Stephens’s convictions, but remand the cause to the trial court for

sentencing clarification and correction.

                                            FACTS

          In March 2011, Undercover Officer 193 (UC 193) with the Elkhart County

Sheriff’s Department witnessed Stephens deliver heroin on three separate occasions. On

March 10, 2011, UC 193 was in a vehicle owned by a cooperating source. Another


1
    Indiana Code § 35-48-4-1
2
    Indiana Code § 35-45-15-5
3
    Indiana Code § 35-50-2-8
                                               2
cooperating source sat in the vehicle. From the front seat, UC 193 witnessed Stephens

deliver heroin to the cooperating source in exchange for money. On March 14, 2011, UC

193 was present to witness an exchange that one of the cooperating sources had arranged

with Stephens.    Stephens stepped into the vehicle, and while UC 193 was present,

provided heroin in exchange for money. On March 21, 2011, UC 193 was again in the

backseat of the cooperating source’s vehicle when he witnessed a cooperating source

reach through the vehicle’s window to give Stephens money in exchange for heroin.

       On April 4, 2011, the State charged Stephens with three counts of dealing in a

narcotic and one count of money laundering, and on June 7, 2011, the State amended the

charges to add an habitual offender count. Stephens’s trial was bifurcated. The jury

found him guilty on all four felony counts, and, during the second portion of the trial, the

trial court found him to be an habitual offender.

       Directly preceding the trial, Stephens made an objection that the State was unable

to produce its two cooperating sources as witnesses, stating that the defense had not had

an opportunity to depose them. Stephens’s attorney stated that he was unsure whether the

defense would have called the cooperating sources as witnesses because he was unable to

depose them, as the State was unable to produce them despite a subpoena. Arguing that

the defense believed the cooperating sources to be material witnesses, the defense

objected to proceeding to trial without the sources. The State responded that it was

unable, despite its efforts, to locate the sources, and that it believed that it could make its

case without them, as it had an undercover police officer who had directly witnessed

                                              3
Stephens deliver narcotics. The State also pointed out that Stephens had been aware of

the fact that the cooperating sources were unavailable for months, and yet had not issued

a deposition subpoena for them until five days before the trial. The trial court overruled

Stephens’s objection, and ordered the trial to proceed.

        At the sentencing hearing, the trial court orally sentenced Stephens to fifteen years

on each of the class B felony dealing in narcotics counts, to run concurrently, two years

on the class D felony, to run consecutively to the first three counts, and to twenty years

on the habitual offender enhancement, to run consecutively to the other counts for an

aggregate term of thirty seven years.4 However, both the Abstract of Judgment and the

written sentencing order reflect a different sentence of twenty years for the class B

felonies, to run concurrently, to two years and six months for the class D felony, to run

consecutively to the first three counts, and to twenty years for the habitual offender

enhancement, again to run consecutively to the other counts for an aggregate term of

forty-two and a half years.

        Stephens now appeals.




4
  As is discussed more fully below, the term imposed on an habitual offender finding constitutes an
enhancement of one of the underlying charges. It is improper for the trial court to order the term imposed
on the habitual offender finding as a separate consecutive sentence.
                                                    4
                             DISCUSSION AND DECISION

                                  I. Cooperating Sources

       Stephens argues that his due process rights were violated when the trial court

overruled his objection and allowed the trial to commence when the State failed to

produce two cooperating sources.

       In Indiana, the general policy is to prevent disclosure of a confidential informant’s

identity unless the defendant can demonstrate that disclosure is relevant and helpful to his

defense or is necessary for a fair trial. Shell v. State, 927 N.E.2d 413, 419 (Ind. Ct. App.

2010). The burden of demonstrating the need for disclosure rests with the defendant, and

bare speculation that the informant’s identity may prove useful is not enough to justify

disclosure. Mays v. State, 907 N.E.2d 128, 131 (Ind. Ct. App. 2009). A conviction may

be reversed where the police negligently withhold or destroy material evidence. Ortez v.

State, 165 Ind. App. 678, 333 N.E.2d 838, 841 (1975).

       Here, Stephens has shown that the cooperating sources were material witnesses to

each of the drug transfers. Using the same analysis this Court employed in Burst v. State,

it is clear that the level of involvement the confidential sources had in this case

demonstrates their materiality. 499 N.E.2d 1140, 1146. The cooperating sources were

present at, and actively participated in, each of the transfers. Tr. p. 80, 92-93, 101, 103,

158, 167, 211, 220. They were the initial link to Stephens, and they facilitated the

transactions. Id. at 183, 80, 83, 101, 111.



                                              5
       This Court has reversed convictions when the State actively takes part in putting

an informant beyond the defendant’s reach. Ortez v. State, 165 Ind. App. 678, 333

N.E.2d 838, 847 (1975). In Dorsey v. State, our Supreme Court reversed and remanded

the defendant’s case when the State purposefully helped its informant find his way to

California, and then disobeyed a court order for his production as a witness at trial. 245

Ind. 409, 260 N.E.2d 800, 418 (1970). Likewise, in Ortez, this Court reversed and

remanded the defendant’s criminal conviction where the police removed the informant

beyond the defendant’s reach, refused to produce him for deposition, and there was

evidence the State had maintained contact with the informant. Ortez, 333 N.E.2d at 694.

In Burst, this Court reviewed those decisions, and reversed another criminal conviction

when it found that the State had precluded a defendant from having the benefit of a

material informant’s testimony. Burst, 499 N.E2d at 1147. However, we also limited our

holding in Burst to the facts presented in that case, noting that:

       We in no way wish to intimate that the State must babysit informants or
       prepare a defendant’s case for him. In cases such as this one, however,
       where the state actively makes its “special employee” unavailable to the
       defendant and where the defendant demonstrates the materiality of the
       “special employee” we must reverse and remand . . . .”

Id. It was clear that this Court’s determination was based on the State’s misconduct.

       While Stephens has demonstrated that the cooperating sources were material

witnesses, there is no evidence in the record to show that the State acted in anything but

good faith. Indeed, the State made efforts to procure the cooperating sources, but was

unable to do so. Tr. p. 24, 137-38. Moreover, Stephens was aware for months before

                                              6
trial that the sources were unavailable, and waited until about five days before trial to

subpoena them for deposition.       Id. at 24.    In other words, there is no evidence

demonstrating that the State purposefully removed these cooperating sources from

Stephens’s reach, and there is no evidence to suggest that the testimony of the

cooperating sources would have been favorable to Stephens. As discussed above, the

State believed that it could make its case without the cooperating sources. In fact, a jury

convicted Stephens on other evidence, including the eyewitness testimony of the

undercover police officer who directly witnessed Stephens deliver heroin to the

cooperating sources.    As a result, we conclude that the trial court did not violate

Stephens’s due process rights when it overruled his objection and allowed the trial to

commence without the presence of the cooperating sources.

                                       II. Sentencing

       This Court, in reviewing sentences, will examine both the written and oral

sentencing statement to discern the findings of the trial court. McElroy v. State, 865

N.E.2d 854, 589 (Ind. 2007). We will not presume the accuracy of the oral statement, but

examine it alongside the written sentencing statement to assess the conclusions of the

trial court. Id. The court has the option of crediting the statement that accurately reflects

the sentence agreement or remanding for resentencing. Wiley v. State, 712 N.E.2d 434,

446 n.8 (Ind. 1999).

       Here, both Stephens and the State point out that the sentence pronounced during

the oral sentencing statement and the sentence reflected in the written sentencing order

                                             7
and Abstract of Judgment are different. At the sentencing hearing, the trial court orally

sentenced Stephens to fifteen years on each count of the class B felony of dealing in

narcotics, to run concurrently, to two years for the class D felony, to run consecutively to

the first three counts, and to twenty years for the habitual offender enhancement, to run

consecutively to the other counts, reflecting an aggregate sentence of thirty-seven years.

However, both the Abstract of Judgment and the written sentencing order reflect a

sentence of twenty years on the class B felony counts, to run concurrently, to two years

and six months on the class D felony, to run consecutively to the first three counts, and to

twenty years on the habitual offender count to run consecutively to the other counts,

reflecting an aggregating resentence of forty-two and one-half years. Such a disparity

does not amount to a simple clerical error, and in reviewing the oral and written

sentencing statements, this Court cannot discern which sentence the trial court meant to

impose.

       The State also avers, and we agree, that the trial court erred when it imposed a

separate consecutive twenty-year term on the habitual offender count rather than

enhancing one of the felony convictions. As we pointed out above, our Supreme Court

has consistently held that the determination of habitual offender status cannot be treated

as a separate crime, but rather allows the trial court to enhance the sentence of an

underlying felony. Maul v. State, 467 N.E.2d 1197, 1199 (Ind. 1984). Thus, the trial

court erred when it imposed a separate consecutive sentence for the habitual offender

enhancement, and did not identify which felony it was enhancing.

                                             8
                                       III. Conclusion

       We conclude that Stephens was not deprived of his due process rights when the

trial court overruled his objection to moving forward with his trial although the State

could not produce the cooperating sources. We therefore affirm Stephens’s convictions.

However, we find that the trial court erred in sentencing Stephens when it 1) sentenced

Stephens differently in the oral and written sentencing statements and 2) provided for a

separate sentence in light of the habitual offender finding. Consequently, we remand this

cause to the trial court to clarify and correct the sentence.

       The judgment of the trial court is affirmed in part, reversed in part, and remanded

for further proceedings consistent with this opinion.

NAJAM, J., and CRONE, J., concur.




                                               9
