Kevin M. Dolick v. State of Indiana (mem. dec.) ( 2017 )

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.
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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
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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.
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