COA: Consecutive sentences not inappropriate for ‘independent and distinct’ charges

A man arrested for drug-related charges who later received additional charges under a separate cause failed to convince an Indiana Court of Appeals panel that a trial court abused its discretion by ordering his second sentence to be served consecutively to the first.

While serving an arrest warrant for Dion Cannon at his residence for narcotic-related charges resulting from a series of controlled buys, Kokomo police officers smelled burnt marijuana when Cannon opened the door. Cannon also said “oh s—, just a minute” upon hearing the knock and told officers “it was marijuana, and that’s all the illegal drugs that [I have] in the house,” prompting law enforcement to obtain a search warrant for the property.

Following evidence recovered during the execution of the search warrant, the state filed separate drug-related charges against Cannon in addition to the initial narcotics charges that led to his arrest.

Under Cause F2-1036, the cause arising from the second round of charges, Cannon was convicted of Level 3 felony possession of a narcotic drug, Class A misdemeanor possession of marijuana and Level 6 felony maintaining a common nuisance. He received a 15-year sentence, then entered a plea agreement in Cause F3-985, the original set of charges, pleading to Level 5 felony dealing a narcotic drug.

The guilty plea led to an additional 1,825-day sentence in the Department of Correction, which was ordered to run consecutive to the 15-year sentence for the subsequent drug charges. On appeal, Cannon argued the Howard Superior Court abused its discretion by ordering his second sentence to be served consecutively to the first.

Citing Beno v. State, 581 N.E.2d 922 (Ind. 1999) and its progeny, Cannon argued the state could not be permitted to “to create State-sponsored criminal activity, cause a delay in criminal prosecution, and then stack charges resulting directly from the evidence obtained during the State-sponsored criminal activity.”

However the appellate court found Beno was inapposite to Cannon’s argument in Dion C. Cannon v. State of Indiana, 34A04-1708-CR-1784, finding instead that the search warrant which supported the charges in Cause F2-1036 “was not obtained in furtherance of an ongoing investigation.” Rather, the warrant was requested “based on the independent observations of police officers” upon Cannon’s incriminating statements and the smell of burnt marijuana.

“Accordingly, the charges in Cause F2-1036 are derived from actions independent and distinct from the charges in Cause F3-985 and are not a continuation of the earlier charges,” Judge Patricia Riley wrote for the court. “As no close nexus exists between the State sponsored purchases and the State’s charges derived from the execution of the search warrant, Beno and its progeny are distinguishable and the trial court did not abuse its discretion by imposing consecutive sentences.”