Arrion Walton v. State of Indiana , 81 N.E.3d 679 ( 2017 )


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  •                                                                                 FILED
    Aug 04 2017, 10:00 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Timothy P. Broden                                         Curtis T. Hill, Jr.
    Lafayette, Indiana                                        Attorney General of Indiana
    Michael Gene Worden
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Arrion Walton,                                            August 4, 2017
    Appellant-Defendant,                                      Court of Appeals Case No.
    79A04-1604-CR-768
    v.                                                Appeal from the Tippecanoe
    Superior Court
    State of Indiana,                                         The Honorable Randy J. Williams,
    Appellee-Plaintiff                                        Judge
    Trial Court Cause No.
    79D01-1505-F2-02
    Vaidik, Chief Judge.
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                         Page 1 of 21
    Case Summary
    [1]   Indiana Code section 35-47-4-5 provides that “[a] serious violent felon who
    possesses a firearm commits unlawful possession of a firearm by a serious
    violent felon” (“SVF”). In Taylor v. State, 
    929 N.E.2d 912
    (Ind. Ct. App. 2010),
    trans. denied, we held that our General Assembly’s use of the singular phrase
    “possesses a firearm” means that a serious violent felon who possesses more
    than one firearm has committed more than one offense. Consistent with that
    holding, Arrion Walton was convicted of multiple counts of SVF (along with
    various drug crimes) after being found in possession of multiple firearms.
    Today we reaffirm Taylor and uphold Walton’s SVF convictions. However, we
    find that Walton’s sixty-four-year sentence is inappropriate, and we remand this
    matter to the trial court for imposition of a sentence of forty-two years.
    Facts and Procedural History
    [2]   On five days in early 2015—January 30, February 2, April 8, April 23, and May
    8—the Tippecanoe County Drug Task Force used a confidential informant to
    purchase cocaine from Walton. Then, on May 11, the police conducted
    searches at two apartments Walton was renting on two different floors of the
    same building. In the downstairs apartment, in which Walton was residing,
    officers found cocaine and a Bersa handgun. In the upstairs apartment, officers
    found additional cocaine, a Ruger handgun, and a Phoenix Arms handgun.
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017      Page 2 of 21
    [3]   With regard to the five controlled cocaine buys, the State charged Walton with
    five counts of dealing in cocaine: one Level 2 felony for the April 23
    transaction, three Level 3 felonies, and one Level 4 felony. The State also
    charged him with the lesser-included offense of possession of cocaine as to each
    of the five buys. Furthermore, in relation to the search on May 11, the State
    charged Walton with six additional counts: Level 2 felony dealing in cocaine—
    possession with intent to deliver (based on the cocaine found in the downstairs
    apartment), Level 3 felony possession of cocaine (based on the cocaine found in
    the upstairs apartment), Level 2 felony conspiracy to commit dealing in
    cocaine, Level 6 felony maintaining a common nuisance, and two counts of
    Level 4 felony unlawful possession of a firearm by a serious violent felon
    (“SVF”) (one based on the Bersa found in the downstairs apartment and one
    based on the Ruger and the Phoenix Arms found in the upstairs apartment). In
    addition, the State accused Walton of being a habitual offender based on his
    prior felony convictions.
    [4]   Walton was found guilty of all the charges listed above and was found to be a
    habitual offender. In sentencing Walton, the trial court distinguished the
    convictions relating to the controlled buys from the convictions relating to the
    search on May 11. Regarding the charges arising from the five controlled buys,
    the trial court merged the possession counts into the dealing counts and entered
    convictions and sentences on the dealing counts only. On the most serious
    dealing count, the Level 2 felony (Count IX), the trial court imposed a sentence
    of twenty-four years, enhanced by ten years based on the habitual-offender
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017   Page 3 of 21
    finding, for a total of thirty-four years. The court imposed shorter sentences for
    the other four dealing convictions and ordered them to run concurrently with
    the thirty-four-year sentence for the Level 2 felony.1
    [5]   As for the convictions arising from the search, the trial court imposed sentences
    of twenty-four years for dealing in cocaine—possession with intent to deliver,
    thirteen years for possession of cocaine, twenty-four years for conspiracy to
    commit dealing in cocaine, two years for maintaining a common nuisance, and
    eight years for each SVF count. However, the court also found that these six
    offenses constituted an “episode of criminal conduct” subject to a maximum
    total sentence of thirty years under Indiana Code section 35-50-1-2(c), and it
    sentenced Walton accordingly. The trial court then ordered that thirty-year
    sentence to run consecutive to the thirty-four-year sentence for the controlled
    buys, for a total sentence of sixty-four years.
    [6]   Walton now appeals.
    1
    During the sentencing hearing, the trial court made two errors with respect to the controlled-buy counts.
    First, it said that it was merging only four of the possession counts with their corresponding dealing counts,
    instead of all five. Second, it said that it was imposing sentences for each of the possession counts, even
    though they were to be merged into the dealing counts. However, neither error is present in the trial court’s
    written Sentencing Order or the Abstract of Judgment, both of which indicate convictions and sentences for
    the dealing counts only. As such, there is nothing to be gained from remanding this matter to the trial court
    for further proceedings on this issue. The dissent suggests that merging the possession counts was an
    inadequate solution and that we should instruct the trial court to “vacate” them, but our Supreme Court has
    made clear that merger is sufficient. Green v. State, 
    856 N.E.2d 703
    (Ind. 2006) (“Where the court merges the
    lesser-included offense without imposing judgment, there is no need to remand on appeal to ‘vacate.’”); see
    also Carter v. State, 
    750 N.E.2d 778
    , 781 (Ind. 2001) (“[A] jury verdict on which the court did not enter
    judgment for one reason or another (merger, double jeopardy, etc.) is unproblematic[.]”).
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                           Page 4 of 21
    Discussion and Decision
    [7]   Walton contends that his two SVF convictions constitute double jeopardy
    under Article 1, Section 14 of the Indiana Constitution and that his sentence is
    inappropriate.
    I. Double Jeopardy
    [8]   Walton’s first argument is that his two SVF convictions fail the actual-evidence
    test under the double-jeopardy clause of the Indiana Constitution. “Under the
    actual-evidence test, we examine the actual evidence presented at trial in order
    to determine whether each challenged offense was established by separate and
    distinct facts.” Frazier v. State, 
    988 N.E.2d 1257
    , 1262 (Ind. Ct. App. 2013).
    “To find a double-jeopardy violation under this test, we must conclude that
    there is ‘a reasonable possibility that the evidentiary facts used by the fact-finder
    to establish the essential elements of one offense may also have been used to
    establish the essential elements of a second challenged offense.’” 
    Id. (quoting Richardson
    v. State, 
    717 N.E.2d 32
    , 53 (Ind. 1999)). Here, the first SVF count
    was specifically based on the handgun found in the downstairs apartment, and
    the second count was specifically based on the handguns found in the upstairs
    apartment, and Walton gives us no reason to believe that he was actually
    convicted of the two counts based on the same evidence, i.e., the same gun.
    Therefore, Walton’s double-jeopardy claim fails.
    [9]   The dissent addresses an issue that Walton has not raised: whether multiple
    SVF convictions based on the simultaneous possession of multiple firearms are
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017    Page 5 of 21
    ever permissible under the SVF statute, Indiana Code section 35-47-4-5. The
    statute provides, in pertinent part, “A serious violent felon who knowingly or
    intentionally possesses a firearm commits unlawful possession of a firearm by a
    serious violent felon, a Level 4 felony.” Ind. Code § 35-47-4-5(c). In Taylor v.
    State, we held that the General Assembly’s use of the singular “possesses a
    firearm” reflects its intent to allow a separate conviction for each firearm a
    serious violent felon possesses. 
    929 N.E.2d 912
    , 921 (Ind. Ct. App. 2010), trans.
    denied; see also Daugherty v. State, 
    52 N.E.3d 885
    , 892 (Ind. Ct. App. 2016) (citing
    Taylor for proposition that Section 35-47-4-5(c) “provides that each unlawful
    possession of a weapon is considered to be a separate and distinct act, and
    therefore each unlawful possession is a separate and distinct offense.”), trans.
    denied. The dissent concludes that Taylor was wrongly decided. We disagree.
    [10]   If our legislature had intended to allow only a single possession conviction
    regardless of the number of firearms possessed, it could have used the phrase
    “possesses one or more firearms,” see State v. Stratton, 
    567 A.2d 986
    , 989 (N.H.
    1989), or “possesses any firearm,” see, e.g., United States v. Valentine, 
    706 F.2d 282
    , 292-94 (10th Cir. 1983), instead of “possesses a firearm.” It has thus far
    chosen not to do so. We also note that our interpretation of section 35-47-4-5(c)
    in Taylor is consistent with the way courts around the country have interpreted
    similar statutes. See, e.g., State v. Kidd, 
    562 N.W.2d 764
    , 765-66 (Iowa 1997)
    (collecting cases); 
    Stratton, 567 A.2d at 989
    ; State v. Gutierrez, 
    381 P.3d 254
    , 260
    (Ariz. Ct. App. 2016) (collecting cases, including Taylor), rev. denied; State v.
    Lindsey, 
    583 So. 2d 1200
    , 1203-04 (La. Ct. App. 1991), writ denied. For these
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017     Page 6 of 21
    reasons and the other reasons stated in Taylor, Walton’s SVF convictions are
    permissible under the language of the SVF statute.
    [11]   While we reject Walton’s challenge to his SVF convictions, we find, sua sponte,
    that one of his other convictions must be vacated to avoid a double-jeopardy
    violation. In relation to the search on May 11, Walton was convicted of one
    count of dealing in cocaine—possession with intent to deliver, based on the
    cocaine found in the downstairs apartment (Count XIII), and a separate count
    of possession of cocaine, based on the cocaine found in the upstairs apartment
    (Count XIV). However, this Court has held that a defendant cannot be
    convicted of two counts of drug possession (including possession with intent to
    deliver) based on two quantities of drugs simultaneously possessed in two
    closely related locations. Donnegan v. State, 
    809 N.E.2d 966
    , 974-75 (Ind. Ct.
    App. 2004) (possession on person, in residence, and in trash outside residence),
    trans. denied; see also Campbell v. State, 
    734 N.E.2d 248
    , 250-51 (Ind. Ct. App.
    2000) (possession on person and in residence); Young v. State, 
    564 N.E.2d 968
    ,
    972 (Ind. Ct. App. 1991) (possession on person and in vehicle), aff’d on reh’g,
    trans. denied. Therefore, we must remand this matter to the trial court with
    instructions to vacate the judgment of conviction and the sentence on Count
    XIV.
    II. Sentencing
    [12]   Walton also asks us to reduce his sentence pursuant to Indiana Appellate Rule
    7(B), which provides that an appellate court “may revise a sentence authorized
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017    Page 7 of 21
    by statute if, after due consideration of the trial court's decision, the Court finds
    that the sentence is inappropriate in light of the nature of the offense and the
    character of the offender.” Because we generally defer to the judgment of trial
    courts in sentencing matters, defendants have the burden of persuading us that
    their sentences are inappropriate. Schaaf v. State, 
    54 N.E.3d 1041
    , 1044-45 (Ind.
    Ct. App. 2016). “Whether a sentence is inappropriate ultimately turns on the
    culpability of the defendant, the severity of the crime, the damage done to
    others, and a myriad of other factors that come to light in a given case.”
    Thompson v. State, 
    5 N.E.3d 383
    , 391 (Ind. Ct. App. 2014).
    [13]   Walton asserts that running the sentences for the drug-related convictions
    arising from the search on May 11 (dealing in cocaine, conspiracy to commit
    dealing in cocaine, and maintaining a common nuisance) consecutive to the
    sentence for the earlier controlled buys is inappropriate under Beno v. State, 
    581 N.E.2d 922
    (Ind. 1991), and its progeny. We agree. In Beno, the defendant was
    convicted of two counts of dealing in cocaine and one count of maintaining a
    common nuisance after two controlled buys at his house, and the trial court
    ordered him to serve consecutive sentences on the three counts. On appeal, our
    Supreme Court held that “because the crimes committed were nearly identical
    State-sponsored buys, consecutive sentences were inappropriate.” 
    Id. at 924.
    More recently, in Eckelbarger v. State, the Court extended the Beno principle to
    hold that consecutive sentences were inappropriate for drug convictions arising
    from two controlled buys and a subsequent search of the defendant’s home. 
    51 N.E.3d 169
    (Ind. 2016). The Court reasoned that the sentences arising from the
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017     Page 8 of 21
    search should be served concurrently with the sentences arising from the
    controlled buys because the convictions arising from the search were
    “supported by evidence seized pursuant to a search warrant procured based on
    the dealing methamphetamine by delivery counts[.]” 
    Id. at 170.
    In a case
    similar to Eckelbarger—drug convictions arising from two controlled buys and
    the resultant home search—this Court held that the principle that “the State
    may not ‘pile on’ sentences by postponing prosecution in order to gather more
    evidence . . . applies equally to convictions arising from evidence gathered as a
    direct result of the State-sponsored criminal activity.” Williams v. State, 
    891 N.E.2d 621
    , 635 (Ind. Ct. App. 2008); see also Bell v. State, 
    881 N.E.2d 1080
    ,
    1087-88 (Ind. Ct. App. 2008), trans. denied.
    [14]   Here, as in Eckelbarger and Williams, a series of controlled buys led to a search of
    Walton’s apartments. The controlled buys resulted in five dealing convictions,
    and the subsequent search resulted in additional drug-related convictions.
    Because these additional drug-related convictions are supported by evidence
    seized as a direct result of the controlled buys, we agree with Walton that
    running the sentences for any of them consecutive to the sentences for the
    controlled buys would be inappropriate.2
    2
    The State does not address Eckelbarger. It argues that Williams is distinguishable from this case because the
    buys and search in Williams took place over three days while the buys and search in this case spanned more
    than three months. The State does not cite any authority in support of its argument that the Beno rationale
    applies only when the events occur “within a few days of each other.” Appellee’s Br. p. 19. To the contrary,
    this Court has held that consecutive sentences are inappropriate for convictions arising from five controlled
    buys conducted over the course of two months. Hendrickson v. State, 
    690 N.E.2d 765
    (Ind. Ct. App. 1998).
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                            Page 9 of 21
    [15]   Therefore, we remand this matter to the trial court for the imposition of a
    sentence of forty-two years: thirty-four years on Count IX (with the shorter
    sentences on the remaining drug-related convictions to run concurrently) and
    eight years on each of the SVF convictions, to run concurrently with one
    another but consecutive to Count IX (Walton acknowledges that his gun
    possession is distinguishable from his drug crimes and is not subject to the
    Beno/Eckelbarger principle). In making these changes, the trial court must also
    reduce the sentences for Count XIII (dealing in cocaine) and Count XV
    (conspiracy to commit dealing in cocaine) from twenty-four years to twenty-two
    years, so as to avoid any potential claim of error under the “episode of criminal
    conduct” statute, Indiana Code section 35-50-1-2.3
    [16]   Affirmed in part and reversed and remanded in part.
    The State also contends Walton’s conviction for maintaining a common nuisance “does not fall within the
    rationale of the Beno rule.” Appellee’s Br. p. 18. As already noted, however, one of the sentences ordered
    concurrent by the Supreme Court in Beno was for maintaining a common nuisance.
    3
    The version of Section 35-50-1-2(c) that was in effect when Walton committed his offenses provided that
    “the total of the consecutive terms of imprisonment to which the defendant is sentenced” for a non-violent
    episode of criminal conduct “shall not exceed the advisory sentence for a felony which is one (1) class of
    felony higher than the most serious of the felonies for which the person has been convicted.” Ind. Code Ann.
    § 35-50-1-2(c) (West 2012). Here, the trial court found that the May 11 offenses constituted an episode of
    criminal conduct, so the total of the consecutive terms of imprisonment could not exceed thirty years, the
    advisory sentence for a Level 1 felony (the most serious offense on May 11 having been a Level 2 felony).
    The trial court correctly identified this thirty-year cap and said that it was imposing a cumulative sentence of
    thirty years for the May 11 offenses, but it failed to impose individual sentences that actually added up to
    thirty years. Instead, it indicated that it was imposing sentences of twenty-four years for dealing in cocaine,
    twenty-four years for conspiracy to commit dealing in cocaine, two years for maintaining a common
    nuisance, and eight years for each SVF conviction. Because the eight years on the SVF convictions run
    consecutive to the concurrent sentences on the drug-related convictions, including the sentences for the May
    11 dealing and conspiracy, the latter sentences must be reduced to twenty-two years to reach the thirty-year
    cap.
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                           Page 10 of 21
    Robb, J., concurs.
    Bailey, J, dissents with separate opinion.
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017   Page 11 of 21
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Timothy P. Broden                                         Curtis T. Hill, Jr.
    Lafayette, Indiana                                        Attorney General of Indiana
    Michael Gene Worden
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Arrion Walton,                                            August 4, 2017
    Appellant-Defendant,                                      Court of Appeals Case No.
    79A04-1604-CR-768
    v.                                                Appeal from the Tippecanoe
    Superior Court
    State of Indiana,                                         The Honorable Randy J. Williams,
    Appellee-Plaintiff                                        Judge
    Trial Court Cause No.
    79D01-1505-F2-02
    Bailey, Judge dissenting
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017               Page 12 of 21
    [17]   I would resolve this case differently from the majority in three respects. First, I
    would conclude that the SVF statute does not support two convictions under
    these facts. Second, because the trial court orally entered judgment of
    conviction on the lesser-included possession counts, and having already
    identified multiple issues with the sentencing order, I would instruct the trial
    court to vacate the lesser-included counts that it later merged. Third, although I
    agree that Walton’s drug-related counts warrant concurrent sentences under
    Beno and its progeny, in light of the resultant conflict with the statutory
    sentencing limit as well as the impact on the aggregate length of Walton’s
    sentence, I would defer to the trial court and remand for resentencing.
    SVF Convictions
    [18]   Walton was convicted of multiple SVF counts based on his constructive
    possession of multiple firearms. If the SVF statute does not authorize more
    than one conviction under these facts, then Walton’s convictions run afoul of
    principles of double jeopardy. It is essential, then, to look to the SVF statute,4
    4
    The majority notes that Walton has not challenged the SVF statute, yet appellate courts “must address
    double jeopardy violations sua sponte where they exist because ‘a double jeopardy violation, if shown,
    implicates fundamental rights.’” Montgomery v. State, 
    21 N.E.3d 846
    , 864 n.5 (Ind. Ct. App. 2014) (quoting
    Smith v. State, 
    881 N.E.2d 1040
    , 1047 (Ind. Ct. App. 2008)), trans. denied. Thus, just as it was appropriate for
    the majority to sua sponte identify a double jeopardy issue concerning two of Walton’s cocaine-related
    convictions, it is appropriate to evaluate the SVF statute to fairly consider Walton’s fundamental rights.
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                            Page 13 of 21
    which states that a serious violent felon may not “knowingly or intentionally
    possess a firearm.” I.C. § 35-47-4-5(c).
    [19]   The SVF statute uses the singular language “possesses a firearm,” but it is not
    clear whether that permits a separate conviction for each and every firearm or a
    single conviction for all firearms possessed. On the one hand, this singular
    language could be viewed as reflecting an intent to allow a separate conviction
    for each and every firearm—the majority concludes as much, relying on Taylor
    v. State, 
    929 N.E.2d 912
    (Ind. Ct. App. 2010), trans. denied. On the other hand,
    however, it is equally plausible that the legislature selected the singular
    language “possesses a firearm” to ensure a conviction for the possession of one
    or more firearms. The majority points out that the legislature could have used
    more precise language if it had intended to allow a single conviction regardless
    of the number of firearms possessed—and it is right. But, the legislature could
    also have been more precise and enacted a statute that expressly permits a
    conviction for each and every firearm. Yet, nothing on the face of the statute
    evinces a clear intent either way. Thus, the instant statute is ambiguous.5 See
    Day v. State, 
    57 N.E.3d 809
    , 813 (Ind. 2016) (“[A] statute is ambiguous when it
    allows more than one reasonable interpretation.”).
    5
    To the extent that my statutory analysis parts ways with Taylor, I would conclude that Taylor should not be
    afforded legislative acquiescence, given the short time that has passed since the case was decided and that the
    Indiana Supreme Court has not yet addressed this issue. See Layman v. State, 
    42 N.E.3d 972
    , 978 (Ind. 2015)
    (noting “that a judicial interpretation of a statute, particularly by the Indiana Supreme Court, accompanied
    by substantial legislative inaction for a considerable time, may be understood to signify the General
    Assembly’s acquiescence and agreement with the judicial interpretation”).
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                          Page 14 of 21
    [20]   For support, the majority is inclined to look to “the way courts around the
    country have interpreted similar statutes.” Slip op. at 6. However, our role is
    to instead apply Indiana law—and when we are faced with an ambiguous
    statute, we turn to our canons of construction to discern the legislature’s intent.
    See 
    Day, 57 N.E.3d at 813
    ; see also Consumer Attorney Servs., P.A. v. State, 
    71 N.E.3d 362
    (Ind. 2017). No canon is absolute, rather, these “‘rules or maxims
    of construction are flexible aids to the search for meaning.’” Brownsburg Area
    Patrons Affecting Change v. Baldwin, 
    714 N.E.2d 135
    , 139 (Ind. 1999). Moreover,
    the legislature has codified several canons in articulating general rules of
    construction for the Indiana Code. See I.C. § 1-1-4-1 (setting forth rules of
    construction, and noting that “[t]he construction of all statutes of this state shall
    be by [these] rules, unless the construction is plainly repugnant to the intent of
    the legislature or of the context of the statute”).
    [21]   Because this is a criminal case, the rule of lenity applies. See 
    Day, 57 N.E.3d at 813
    ; Adams v. State, 
    960 N.E.2d 793
    , 798 (Ind. 2012); Johnson v. State, No.
    32A05-1604-CR-703, slip op. at 2, 8 (Ind. Ct. App. Apr. 19, 2017). Under this
    rule, appellate courts are to “interpret[] the statute in the defendant’s favor as
    far as the language can reasonably support.” 
    Day, 57 N.E.3d at 813
    . Thus, if a
    reasonable interpretation of the SVF statute is that multiple firearms give rise to
    only one offense, then that interpretation controls. Cf. Am. Film Distributors, Inc.
    v. State, 
    471 N.E.2d 3
    , 5 (Ind. Ct. App. 1984) (“Unless there appears in the
    statute a clear intent to fix separate penalties . . . the issue should be resolved
    against turning a single transaction into multiple offenses.”), trans. denied.
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017     Page 15 of 21
    [22]   There is also the “‘well-settled rule . . . that words used in their singular include
    also their plural.’” See Gaddis v. McCullough, 
    827 N.E.2d 66
    , 71 (Ind. Ct. App.
    2005), trans. denied; see also Floyd Cty. v. City of New Albany, 
    1 N.E.3d 207
    , 217
    (Ind. Ct. App. 2014) (noting the same general rule), trans. denied. Indeed, the
    legislature has codified this common-law principle, expressly providing that
    “[w]ords importing the singular number only may be also applied to the plural
    of persons and things.” I.C. § 1-1-4-1(3). This principle lends support to the
    reading that the singular language used in the statute—“possesses a firearm”—
    requires that the possession of multiple firearms amounts to one offense, and
    thus only one of Walton’s convictions can stand.
    [23]   Also informative is the principle of in pari materia, which provides that related
    statutes may help us discern legislative intent. See Klotz v. Hoyt, 
    900 N.E.2d 1
    , 5
    (Ind. 2009). “Statutes are in pari materia—pertain to the same subject matter—
    when they relate to the same person or thing, to the same class of persons or
    things, or have the same purpose or object.” 2B Norman J. Singer & J.D.
    Shambie Singer, Sutherland Statutes and Statutory Construction § 51:3, at 222
    (7th ed. 2007) (footnotes omitted). This principle reflects the notion that
    “[s]tatutes relating to the same general subject matter . . . ‘should be construed
    together so as to produce a harmonious statutory scheme.’” 
    Klotz, 900 N.E.2d at 5
    (quoting Sanders v. State, 
    466 N.E.2d 424
    , 428 (Ind. 1984)); see also, e.g.,
    State v. Gerhardt, 
    44 N.E. 469
    , 476 (1896) (observing that all laws regulating
    liquor traffic are in pari materia).
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017    Page 16 of 21
    [24]   Under the principle of in pari materia, courts are to consider comparable statutes
    when examining the statute at issue. Here, the statute concerns firearms and
    prohibits those with a certain status—serious violent felons—from possessing
    them. See I.C. § 35-47-4-5(c). Yet, generally, it is not unlawful to possess a
    firearm, and our body politic has decided that there is nothing inherent in most
    guns6 that makes their possession illegal. Rather, it is the status of the person
    possessing the gun that determines whether the possession of it is illegal. In the
    instant case, a determination was made that Walton, having been proven to be
    a serious violent felon, was also found to be in possession of a firearm.
    Similarly, there are status offenses making it a crime for a convicted domestic
    batterer to possess a firearm, see I.C. § 35-47-4-6, just as it is a crime to carry a
    handgun without the proper license to do so. See I.C. § 35-47-2-1.
    [25]   At bottom, the possession of guns is lawful for some but not lawful for all. In
    this sense, the statute prohibiting those under the age of twenty-one from
    “possess[ing] an alcoholic beverage” is related to the instant statute, in that
    being underage is an identifiable status and alcohol is otherwise lawful to
    possess. See I.C. § 7.1-5-7-7. Related in this way, too, is the statute prohibiting
    the possession of cocaine or narcotic drugs by those who lack the proper status:
    holding a valid prescription.7 See I.C. § 35-48-4-6. Notably, though, in
    6
    See I.C. § 35-47-5-8 (providing that it is a criminal offense to possess a machine gun).
    7
    Of note, these status-based offenses differ in a key respect from pure possession offenses. That is, unlike the
    offense of possession of child pornography, for example, where each image constitutes an additional affront
    to the victim or victims, here, the possession of a gun—without more—is not illegal. See, e.g., Brown v. State,
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                            Page 17 of 21
    criminalizing the possession of certain drugs by non-prescription-holders, the
    legislature expressly elevated the offense based on the quantity of drugs in
    possession. See 
    id. (providing, e.g.,
    that the offense is a Level 4 felony if “the
    amount of the drug involved is at least ten (10) but less than twenty-eight (28)
    grams” and elevating the offense to a Level 3 felony if the amount is at least
    twenty-eight grams). Here, however, 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. 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. Rather, the lack of a
    quantity-based elevation scheme does not, in and of itself, unambiguously speak
    to the intended number of punishable offenses.
    [26]   Continuing with the principle of in pari materia, it is useful to take a closer look
    at those statutes contained in Article 47, which concerns weapons and
    instruments of violence, the same general subject matter as the instant statute.
    Within Article 47, Indiana Code section 35-47-2-3 sets forth the process to
    obtain a license to carry a handgun. This statute is closely related to the instant
    statute because it involves the same subject—guns—as well as a similar object—
    
    912 N.E.2d 881
    (Ind. Ct. App. 2009) (conducting statutory interpretation and providing a thoughtful analysis
    of the harms and policy concerns associated with child pornography).
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                        Page 18 of 21
    controlling who may lawfully carry them. Further, just as it is a criminal
    offense for a serious violent felon to possess a firearm, it is a criminal offense to
    carry a handgun without a license. See I.C. §§ 35-47-2-1, 35-47-2-3.
    [27]   Turning to the licensing statute, it is notable that the statute refers to the license
    as a “license to carry a handgun.” See I.C. § 35-47-2-3. Indeed, the legislature
    selected the singular form, not the plural “license to carry handguns.” See 
    id. Yet, the
    “license to carry a handgun” allows the licensee to carry not just one
    handgun, but “any handgun lawfully possessed by the applicant.” See I.C. § 35-
    47-2-3(e). Thus, in drafting a closely related statute, the legislature chose to
    create a “license to carry a handgun” that is repeatedly expressed in the
    singular, but nevertheless not limited to a single handgun. Given the
    legislature’s choice to use the singular there and here, it would be illogical to
    conclude that, here, the legislature clearly expressed the intent to establish a
    separate offense for each weapon. Rather, the singular language in the licensing
    statute supports the reading that the instant language—“possesses a firearm”—
    extends to all firearms possessed at a given time, creating a single status offense.
    [28]   Ultimately, in light of these canons of construction, it is reasonable to construe
    the instant statute as criminalizing—as a single punishable offense—the status
    of being a serious violent felon in possession of one or more firearms.
    Therefore, under the rule of lenity, the statute must be interpreted in Walton’s
    favor. See 
    Day, 57 N.E.3d at 813
    (noting that statutes must be “interpret[ed] in
    the defendant’s favor as far as the language can reasonably support”). Thus, I
    would conclude that when a serious violent felon possesses multiple firearms,
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017     Page 19 of 21
    the possession gives rise to only one offense8 under Indiana Code section 35-47-
    4-5(c), and, accordingly, only one of Walton’s SVF counts may stand.
    Lesser-included Offenses
    [29]   The majority acknowledges that, during the sentencing hearing, the trial court
    made two errors relating to the controlled-buy counts. I recognize, as the
    majority does, that neither error is present in the written Sentencing Order and
    Abstract of Judgment, and I agree with the majority that merger is typically
    sufficient. However, immediately after the jury returned its verdict, the trial
    court orally “enter[ed] judgment of conviction [on] the counts.” Tr. Vol. V at
    105. Thus, given that the trial court orally entered judgment of conviction,
    there were errors at the sentencing hearing concerning these counts, and there
    are additional errors in this case requiring remand, I would instruct the trial
    court to vacate the lesser-included offenses. Cf. Carter v. State, 
    750 N.E.2d 778
    ,
    781 n.8 (Ind. 2001) (“[A] claim of multiple punishment for the same offense
    requires multiple judgments of conviction, entered by the trial court.”); Green v.
    State, 
    856 N.E.2d 703
    . 704 (Ind. 2006) (“Where the court merges the lesser-
    included offense without imposing judgment, there is no need to remand on
    appeal to ‘vacate.’).
    8
    Notably, though, the quantity of firearms may be pertinent, not as to the number of counts, but as a
    circumstance warranting an aggravated sentence. See I.C. § 35-38-1-7.1 (setting forth, without limitation,
    circumstances that the trial court may consider in imposing a sentence). That is, when a serious violent felon
    possesses multiple firearms, the felon has undertaken actions exceeding those that constitute the offense.
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017                         Page 20 of 21
    Appellate Rule 7(B)
    [30]   I agree with the majority’s application of Beno and Eckelbarger. That is, given
    the close nexus between the State-sponsored purchases and the State’s ability to
    procure Walton’s drug-related convictions, I would also instruct the trial court
    to run Walton’s drug-related counts concurrently. However, given that doing
    so generates a conflict with the statutory sentencing limit and effects a notable
    change to the aggregate sentence length selected by the trial court, I would defer
    to the judgment of the trial court and remand for resentencing.
    [31]   For these reasons, I must respectfully dissent.
    Court of Appeals of Indiana | Opinion 79A04-1604-CR768 | August 4, 2017   Page 21 of 21