MEMORANDUM DECISION                                                                     FILED
                                                                                  Dec 06 2017, 9:26 am
Pursuant to Ind. Appellate Rule 65(D), this
                                                                                        CLERK
Memorandum Decision shall not be regarded as                                       Indiana Supreme Court
                                                                                      Court of Appeals
precedent or cited before any court except for the                                      and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kevin M. Dolick,                                         December 6, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1701-CR-21
        v.                                               Appeal from the Tippecanoe Circuit
                                                         Court.
                                                         The Honorable Thomas H. Busch,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         79C01-1605-F3-12




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017          Page 1 of 6
[1]   Kevin M. Dolick pleaded guilty to dealing in methamphetamine, as a Level 3
                  1
      felony, and to using a firearm in a controlled substance offense, an
                            2
      enhancement. The six-year sentence he received for the dealing in

      methamphetamine conviction was enhanced by three years based upon his

      guilty plea to using a firearm in the commission of the controlled substance

      offense. The sole issue Dolick raises for our review, restated, is whether the

      three-year enhancement constituted a double jeopardy violation. We affirm.


[2]   On September 16, 2015, Tippecanoe County Drug Task Force Officer Donald

      Miller was working in an undercover capacity when he conducted a controlled

      buy from Dolick for two grams of methamphetamine. Officer Miller met

      Dolick in a parking lot, and Dolick entered the officer’s vehicle. Dolick reached

      into a bag he was carrying, pulled out a revolver, and laid the weapon on his

      lap. Dolick then pulled a plastic container from the same bag, rummaged

      through several prepackaged baggies containing methamphetamine, selected a

      baggie, and gave the baggie to the officer. Officer Miller paid Dolick $200.00

      for the methamphetamine. On September 17 and 23, 2015, Officer Miller

      conducted two more controlled buys from Dolick for methamphetamine.


[3]   On May 16, 2016, the State charged Dolick with Level 3 felony dealing in

      methamphetamine, Level 5 felony possession of methamphetamine, Class A




      1
          Ind. Code § 35-48-4-1.1(a)(1)(d)(2) (2014).
      2
          Ind. Code § 35-50-2-13(a)(1) (2015).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017   Page 2 of 6
      misdemeanor carrying a handgun without a license, two counts of Level 4

      felony dealing in methamphetamine, two counts of Level 6 felony possession of

      methamphetamine, and using a firearm in a controlled substance offense. On

      November 21, 2016, Dolick signed a plea agreement and pleaded guilty to

      Level 3 felony dealing in methamphetamine and to using a firearm in a

      controlled substance offense, an enhancement. The trial court accepted

      Dolick’s guilty plea and dismissed the balance of the charges. Dolick was

      sentenced to six years for dealing in methamphetamine, enhanced by three

      years because he admitted to using a firearm during the commission of the

      controlled substance offense. The trial court suspended three years of Dolick’s

      aggregate nine-year sentence to probation. Dolick appeals.


[4]   Dolick contends that the three-year enhancement of his sentence was an

      “impermissible double enhancement” that constituted a double jeopardy

      violation under the Indiana Constitution which provides: “No person shall be

      put in jeopardy twice for the same offense.” Appellant’s Br. p. 5; Ind. Const.

      Art. 1, § 14. He argues his convictions and subsequent sentence violate the

      actual evidence test announced in Richardson v. State, 717 N.E.2d 32 (Ind.

      1999), which provides:


              [T]wo or more offenses are the “same offense” in violation of
              Article 1, Section 14 of the Indiana Constitution, if, with respect
              to either the statutory elements of the challenged crimes or the
              actual evidence used to convict, the essential elements of one
              challenged offense also establish the essential elements of another
              challenged offense.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017   Page 3 of 6
      Id. at 49. Specifically, according to Dolick, error occurred when the trial court:


              entered judgment of conviction and sentence upon [the dealing in
              methamphetamine Count] which was elevated to a Level 3
              felony by reason of Dolick’s possession of a handgun and then
              enhanced that sentence . . . by an additional 3 year term [sic]
              based upon Dolick’s possession of the same handgun as alleged
              in Count VIII[, using or possessing a handgun while committing
              a controlled substance offense.]


      Appellant’s Br. pp. 5-6. The State argues that Dolick’s double jeopardy

      argument is waived because he pleaded guilty.


[5]   We note that because Dolick’s argument focuses on duplicative consideration

      of the handgun and not of a prior felony, a double enhancement analysis is

      inapposite, and Dolick’s argument is more appropriately addressed as a

      violation of the double jeopardy clause of the Indiana Constitution. See Ind.

      Const. Art. 1, § 14; see also Sweatt v. State, 887 N.E.2d 81, 83 (Ind. 2008) (“The

      line of Indiana cases involving the issue of double enhancement reflects an

      ongoing examination as to when courts may impose more severe sentences on

      defendants who have proven to be repeat offenders.”) (citations omitted). We

      cannot entertain this double jeopardy argument, however, because Dolick’s

      guilty plea forecloses it.


[6]   “Defendants waive a whole panoply of rights by voluntarily pleading guilty.”

      Mapp v. State, 770 N.E.2d 332, 334-35 (Ind. 2002). “One consequence of

      pleading guilty is restriction of the ability to challenge the conviction on direct

      appeal.” Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996). This includes

      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017   Page 4 of 6
      double jeopardy challenges, Games v. State, 743 N.E.2d 1132 (Ind. 2001),

      without exception for even “‘facially duplicative’ charges.” Mapp, 770 N.E.2d

      at 334.


[7]   Dolick had a choice to either plead guilty to Level 3 felony dealing in

      methamphetamine and using a firearm in a controlled substance offense or

      proceed to trial on eight criminal counts that included dealing and possession of

      methamphetamine and carrying a handgun without a license. Dolick chose to

      enter into the plea deal. At the guilty plea hearing, the trial court explained to

      Dolick that by pleading guilty, he was waiving any argument that he might

      have that he “[could not] be punished twice for having a firearm.” Guilty Plea

      Tr. p. 12. Dolick indicated that he understood this. Dolick was told that the

      sentencing range for a Level 3 felony is between three and sixteen years, that

      the maximum sentencing enhancement for using a firearm is five years, and

      that Dolick would “serve both these two counts one at a time because the

      enhancement adds on to the basic charge.” Id. at 15. In return for his guilty

      plea, the prosecution agreed to dismiss all remaining counts against Dolick. In

      its sentencing order, the trial court found as a mitigating factor that Dolick “has

      pled guilty [sic] taken responsibility for his crime . . . .” Appellant’s App. Vol. 2

      p. 11.


[8]   By pleading guilty, Dolick benefited from a bargain. We are now bound to

      hold him to the bargain. See Games, 743 N.E.2d at 1135 (explaining that a

      defendant who enters plea agreement to achieve advantageous position must



      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017   Page 5 of 6
      keep the bargain). Dolick has waived his claim of double jeopardy. His

      convictions and sentence are affirmed.


[9]   Judgment affirmed.


      May, J., and Barnes, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-21 | December 6, 2017   Page 6 of 6
