Divided COA upholds multiple ‘serious violent felon’ firearm convictions

An Indiana trial court did not err in convicting a man on multiple counts of being a serious violent felon in possession of a firearm because existing Indiana case law allows multiple SVF convictions for each firearm that is possessed, a divided Indiana Court of Appeals ruled Friday.

In Arrion Walton v. State of Indiana, 79A04-1604-CR-768, Arrion Walton sold drugs to a confidential informant with the Tippecanoe County Drug Task Force on five separate occasions. Then, police conducted searches on two apartments Walton was renting in the same building and found cocaine and multiple handguns.

Walton was then charged with five counts of dealing in cocaine related to the five controlled buys, as well as the lesser-included offense of possession of cocaine. Walton was charged with six additional counts related to the search of his apartments, including felony dealing in cocaine – possession with intent to deliver, felony possession of cocaine and two counts unlawful possession of a firearm by a serious violent felon, among other counts. Walton was also accused of being a habitual offender based on prior convictions.

After being found guilty as charged, Walton was sentenced to 34 years for the convictions related to the controlled buys and 30 years for those related to the searches, for an aggregate of 64 years. Walton appealed, arguing that his two serious violent felon convictions violate double jeopardy protections under Article 1, Section 14 of the Indiana Constitution.

But in a Friday opinion, Indiana Court of Appeals Chief Judge Nancy Vaidik, writing for the majority, pointed out one of Walton’s SVF convictions was based on the handguns found in the upstairs apartment, while the other was based on the handgun found downstairs. Thus, his double jeopardy claim fails, Vaidik wrote, relying on the case of Taylor v. State, 929 N.E.2d 912 (Ind. Ct. App. 2010).

However, in a dissenting opinion, Judge Mark Bailey wrote the SVF statute, Indiana Code 35-47-4-5, is ambiguous in that it does not expressly say whether separate convictions for possession of each firearm is permitted.  Thus, Bailey said he would interpret the statute so that the phrase “possesses a firearm” means that the possession of multiple firearms amounts to one offense.

“Here…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,” Bailey wrote. “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.”

Vaidik, however, rejected the notion that Taylor was wrongly decided and instead wrote that if the General Assembly “had intended to allow only a single possession conviction regardless of the number of firearms possessed, it could have used the phrases ‘possesses one or more firearms’ or ‘possesses any firearm.’”

The majority then went on the find, sua sponte, that Walton’s convictions of dealing in cocaine with intent to deliver and possession of cocaine cannot both stand because “a defendant cannot be convicted on two counts of drug possession based on two quantities of drugs simultaneously possessed in two closely related locations.” Thus, the majority remanded the case to the trial court to vacate the possession conviction.

Further, the majority agreed that running Walton’s sentences related to the controlled buys and apartment searches consecutively is inappropriate, as the additional drug-related convictions are supported by evidence from the controlled buys. Thus, the majority remanded the case for the imposition of a 42-year sentence – 34 years on a Level 2 felony dealing count and eight years on the SVF counts, with all other sentences running concurrently.

Bailey wrote in his dissent that he would instruct the trial court to vacate the lesser-included offenses due to errors, but agreed the drug-related sentences should run concurrently. However, Bailey also wrote he would defer to the trial court to determine resentencing.