Ronald L. Eckelbarger v. State of Indiana , 51 N.E.3d 169 ( 2016 )

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, LLP Attorney General of Indiana
Huntington, Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court
Mar 29 2016, 1:13 pm
CLERK
Indiana Supreme Court
_________________________________ Court of Appeals
and Tax Court
No. 90S02-1603-CR-157
RONALD L. ECKELBARGER,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Wells Circuit Court, No. 90C01-1406-FB-5
The Honorable Kenton W. Kiracofe, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 90A02-1503-CR-188
_________________________________
March 29, 2016
Per Curiam.
Ronald Eckelbarger had been dating Rebecca Markley more than two years when Markley
tested positive for methamphetamine, in violation of her probation. In order to avoid incarceration,
Markley became a police informant. In that capacity, Markley provided Eckelbarger
pseudoephedrine pills on both June 6 and June 13, 2014, and received methamphetamine in return
several hours later. On June 14, 2014, officers executed a search warrant at Eckelbarger’s home
and recovered precursors for the manufacture of methamphetamine as well as evidence of previous
manufacturing activity. Eckelbarger was charged with and convicted of two counts of class B
felony dealing in methamphetamine (by delivery) (Counts I and II), one count of class B felony
dealing in methamphetamine (by manufacture) (Count III), and one count of class D felony
possession of precursors with intent to manufacture methamphetamine (Count IV).1
The trial court sentenced Eckelbarger to sixteen years with four years suspended on each
of Counts I and II, to be served concurrently. The trial court sentenced Eckelbarger to sixteen
years with four years suspended on Count III, and three years on Count IV, to run concurrently
with each other but consecutive to the sentences on Counts I and II. Eckelbarger thus received an
aggregate sentence of thirty-two years, with eight years suspended to probation.
Eckelbarger appealed, and the Court of Appeals affirmed. Eckelbarger v. State, --- N.E.3d
---, 2015 WL 8477835 (Ind. Ct. App. Dec. 10, 2015). Judge Riley dissented in part, and would
have revised Eckelbarger’s sentence downward. Eckelbarger seeks transfer, contending, among
other things, that his aggregate thirty-two year sentence is inappropriate.
Even where a trial court has not abused its discretion in sentencing, the Indiana Constitution
authorizes independent appellate review and revision of a trial court’s sentencing decision. See
Ind. Const. art 7, §§ 4, 6; Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). Appellate courts
implement this authority through Indiana Appellate Rule 7(B), which provides that we may revise
a sentence if “after due consideration of the trial court’s decision” we find “the sentence is
inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate
Rule 7(B).
We have previously observed that “[c]onsecutive sentences are not appropriate when the
State sponsors a series of virtually identical offenses.” Gregory v. State, 644 N.E.2d 543, 544 (Ind.
1994). Consistent with this precedent, the trial court in this case ordered the sentences on Counts
1
Respectively, Ind. Code § 35-48-4-1.1(a)(1)(C); I.C. § 35-48-4-1.1(a)(1)(A); and I.C. § 35-48-4-14.5(e)
(2008 Repl.).
I and II to be served concurrently. This same reasoning informs our deliberation and collective
sentiment that, under the particular circumstances of this case, the sentences for Counts III and IV
(dealing in methamphetamine by manufacture and possession of precursors)—convictions
supported by evidence seized pursuant to a search warrant procured based on the dealing
methamphetamine by delivery counts—should be served concurrently to the sentences on Counts
I and II.
Pursuant to our authority under Appellate Rule 7(B), we find that an aggregate sentence of
thirty-two years is inappropriate. Accordingly, we grant transfer and revise Eckelbarger’s
sentences on Counts III and IV to run concurrently with his sentences on Counts I and II, for an
aggregate sentence of sixteen years. In all other respects we summarily affirm the Court of
Appeals’ decision. See Ind. Appellate Rule 58(A)(2). We remand this case to the trial court with
instructions to enter a revised sentencing order consistent with this opinion.
Rush, C.J., and Rucker and David, JJ., concur.
Dickson and Massa, JJ., dissent, believing the extraordinary relief of appellate sentence revision
is not warranted in this case.