Opinion
Court of Appeals Case No. 20A-CR-1962
08-12-2021
Brian J. PHILLIPS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney for Appellant: Zachary J. Stock, Attorney at Law, P.C., Carmel, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Zachary J. Stock, Attorney at Law, P.C., Carmel, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, Indiana
Weissmann, Judge. [1] Brian J. Phillips's house guest reported to police that Phillips was using and dealing methamphetamine in his home. Based solely on that information, police obtained a warrant to search Phillips's home, where they found evidence of drug dealing consistent with the house guest's accusations. Phillips ultimately was charged with and convicted of dealing in methamphetamine, a Level 2 felony, and possession of methamphetamine, a Level 3 felony, for which he is now serving concurrent sentences of 10 years and 5 years, respectively.
[2] Phillips appeals both convictions, claiming they were based solely on evidence obtained in an illegal search conducted pursuant to a defective warrant. He asserts the only basis for issuance of the warrant was a drug addict's unreliable statements, which failed to establish the necessary probable cause for the warrant. Finding no illegal search, we affirm Phillips's conviction for dealing in methamphetamine. However, we sua sponte reverse Phillips's conviction for possession of methamphetamine because it violates double jeopardy.
Facts
[3] In September 2019, Garrett Police Officer Tyler Strahl arrested Kathy Handshoe on an outstanding warrant at Phillips's home. When Officer Strahl searched Handshoe, he found a syringe containing a white crystal substance later identified as methamphetamine. Handshoe gave a rambling, conflicting statement to Officer Strahl in which she admitted her own drug use and dealing. She initially denied Phillips's drug involvement but later reported Phillips had dealt and used drugs while she was staying at his home.
[4] Handshoe provided two written statements to Officer Strahl. One implicated Handshoe's drug supplier. Exs., pp. 5-6. The other statement, which incriminated Phillips, specified:
I've been at Brian's for 2 Days. Since then, he has given me meth. He smoke[d] a pipe while I hot railed it. He had me get a bag out of the drawer in the livingroom [sic] last night, there was a bunch in it. He has a container (glass) w/ a red lid on it. It has money and several bags of meth in it. Scales are in a Good-n-plenty box in the left drawer in the entertainment center in the livingroom [sic]. Bag w/dope in it left hand side of Couch in wifi wireless adapter Box. Rifle in the bathroom closet, inside of door of bedroom off of bathroom, handgun & ammo in TV stand in Main Bedroom. Address is 109 S. Hamsher Garrett, IN 46738. His full name is Brian Jennings Phillips.
Exs., p. 7.
[5] Officer Strahl then prepared an affidavit for a warrant to search Phillips's home. Based solely on Handshoe's statements, Officer Strahl alleged probable cause to believe that methamphetamine, drug paraphernalia, and other items used in narcotics dealing likely were located in Phillips's home. The affidavit alleged:
3. The investigation indicates that Methamphetamine, drug paraphernalia, and items used in the dealing of narcotics are probably located in Brian J. Phillips's ... downstairs apartment and basement ... of 109 South Hamsher Street, Garrett, Indiana 46738, in DeKalb County, Indiana.
4. There is probable cause to believe that this offense occurred and these things are in this location because Kathy Handshoe provided a written statement stating these items were inside of the residence.
***
6. While interviewing Kathy about another drug house, she advised the male subject she was currently living with, Brian J. Phillips, has been giving her methamphetamine while she has been living at his residence. Kathy told me Brian also deals methamphetamine. She told me she knew this based on the fact he would make her go to the other room when other people arrived at the residence. Kathy told me she didn't want to get Brian into trouble.
7. Kathy told me she currently has a backpack which has several used syringes in a secret compartment inside the backpack. She advised the backpack was currently at the residence when she made this statement ....
8. Sgt. Blodgett spoke to Kathy in the interview room. Sgt. Blodgett obtained a written statement from Kathy that stated she and Brian were consuming methamphetamine in the living room of the residence, when he asked her to grab a bag out of the drawer. She stated when she opened the drawer, she observed a glass container with a red lid that money [sic] and several bags of methamphetamine. She also stated there were several scales in the Good-n-Plenty box in the entertainment center. She also stated there was a bag with "dope" on the left-hand side of the couch. She advised there is multiple firearms located throughout the entire apartment. Sgt. Blodgett drew a diagram of the residence while Kathy explained the layout of the apartment. Kathy provided the locations of the firearms in the home.
9. Kathy also wrote in the written statement that the male[’]s name is Brian Jennings Phillips and that his address is 109 South Hamsher Street.
***
11. Kathy Handshoe gave me information against ... her own penal interest that she has a backpack with several used syringes located in the ... secret compartment of the backpack. Kathy stated the backpack was located in the residence of 109 South Hamsher Street in Garrett, Indiana 46738.
12. Kathy Handshoe gave me the written statement attached and incorporated herein, which is under oath.
Exs., p. 3.
[6] Due to an oversight by Officer Strahl, only Handshoe's statement implicating a different alleged dealer—not her statement accusing Phillips—was attached to the affidavit. Id. at 5-6; Tr. Vol. II, pp. 93, 105.
[7] Officer Strahl's affidavit prompted the reviewing judge to issue a warrant to search Phillips's home. Tr. Vol. II, pp. 107, 127. During the search the next day, police recovered a digital scale with powdery residue on it, plastic bags approximately one inch by two inches in size, a shotgun, and a glass container with a red lid holding 18.15 grams of methamphetamine.
[8] The State charged Phillips with Level 2 felony dealing methamphetamine and Level 3 possession of methamphetamine. Phillips moved to suppress all evidence from the search, claiming the search violated both the Fourth Amendment to the United States Constitution and Article I, § 11 of the Indiana Constitution. App. Vol. II, pp. 83-84. He argued the warrant authorizing the search was not based on probable cause to believe Phillips possessed tools of the drug trade in his home. Id. After a hearing on the morning of Phillips's jury trial, the trial court denied the suppression motion. However, the court granted Phillips a continuing objection to the admission of evidence obtained through the search. Tr. Vol. II, pp. 78, 109-10; Tr. Vol. III, p. 141. [9] The jury found Phillips guilty as charged. The trial court sentenced Phillips to concurrent terms of imprisonment of 10 years for dealing in methamphetamine and 5 years for possessing methamphetamine. Phillips appeals, challenging only the admission of the evidence seized in the search.
Discussion and Decision
I. Search Was Not Illegal
[10] Phillips claims the search was illegal and, therefore, the evidence seized during it was inadmissible. A trial court has broad discretion to admit evidence and will be reversed on appeal only when it abuses that discretion. Peters v. State , 888 N.E.2d 274, 277 (Ind. Ct. App. 2018), trans. denied. An abuse of discretion occurs when the court's decision is clearly against the logic and effect of the facts and circumstances before it. Id. When the evidentiary issue rests on the court's ultimate determination of probable cause and other constitutional claims, we employ a de novo standard but afford significant deference to the magistrate's decision. State v. Spillers , 847 N.E.2d 949, 953 (Ind. 2006) ; Govan v. State , 116 N.E.3d 1165, 1171 (Ind. Ct. App. 2019), trans. denied.
[11] Phillips contends the search of his home was illegal—and the evidence it revealed inadmissible—because the search warrant affidavit was inadequate to justify issuance of the warrant. The affidavit, which essentially was Officer Strahl's application for the search warrant, relied exclusively on Handshoe's hearsay statements, which Phillips deems "uncorroborated" and "incredible." Appellant's Br., p. 9. Phillips also claims the warrant was defective because Officer Strahl omitted critical information from the affidavit.
[12] Phillips's arguments implicate both state and federal constitutional protections. Both the Fourth Amendment to the United States Constitution and Article I, § 11 protect the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable" searches and seizures. U.S. Const. amend IV ; Ind. Const. art. I, § 11. These nearly identical constitutional provisions require law enforcement to obtain a warrant supported by probable cause before conducting home searches. Pavey v. State , 764 N.E.2d 692, 701 (Ind. Ct. App. 2002), trans. denied.
[13] In deciding whether probable cause to search exists, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In reviewing that decision, our task is to determine whether the affidavit provided the warrant-issuing judge with a "substantial basis" for finding probable cause. Id. at 238-39, 103 S.Ct. 2317.
A. Reliability of Handshoe's Statements
[14] Phillips first claims the trial court lacked a substantial basis for finding probable cause because the search warrant affidavit failed to establish the reliability of Handshoe's hearsay statements. Uncorroborated hearsay from a source whose credibility is unknown, standing alone, cannot support a finding of probable cause to issue a search warrant. Jaggers v. State , 687 N.E.2d 180, 182 (Ind. 1997). When based on hearsay, the search warrant affidavit "must either: (1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or (2) contain information that establishes that the totality of the circumstances corroborates the hearsay." Ind. Code § 35-33-5-2(b).
[15] As Indiana Code § 35-33-5-2(b) is a codification of the principles in the Fourth Amendment and Article I, § 11, it establishes the minimum requirements for probable cause under those constitutional provisions. See State v. Shipman , 987 N.E.2d 1122, 1127 (Ind. 2013) ; Jaggers , 687 N.E.2d at 183 ; Gerth v. State , 51 N.E.3d 368, 372 (Ind. Ct. App. 2016). For that reason, police compliance with Indiana Code § 35-33-5-2(b) in search warrant requests is mandatory. Esquerdo v. State , 640 N.E.2d 1023, 1029 (Ind. 1994) ; Jaggers , 687 N.E.2d at 183.
[16] Establishing the reliability of hearsay statements, as required by Indiana Code § 35-33-5-2(b), may be accomplished in a number of ways. These methods include showing: (1) independent police investigation corroborated the informant's statements; (2) some basis for the informant's knowledge exists, such as the informant's firsthand observation; (3) the informant predicted conduct or activities by the suspect that ordinarily are not easily predicted; (4) the declarant's statements were detailed; (5) the interval between the events described and the warrant application was brief; and (6) the declarant's statements are declarations against penal interest. See Gates , 462 U.S. at 241-46, 103 S.Ct. 2317 ; United States v. Farmer , 543 F.3d 363, 377 (7th Cir. 2008) ; Spillers, 847 N.E.2d at 954 ; Jaggers , 687 N.E.2d at 182.
[17] Phillips asserts the affidavit did nothing to establish the reliability of Handshoe or her hearsay statements. He contends the affidavit merely implied, rather than established, that Handshoe "had personal knowledge of her claims." Appellant's Br., p. 10. But Phillips either minimizes or ignores the affidavit's allegations. The affidavit establishes Handshoe has been living in Phillips's home for several days immediately prior to her statement to police. Exs., p. 3. Police knew that to be true because Phillips had said so when police arrived at his home to serve the warrant on Handshoe three days before the search. Tr. Vol. II, p. 81.
[18] The affidavit recounts Handshoe's firsthand accounts of Phillips's actions during those few days they lived together. Handshoe reported Phillips provided methamphetamine to her, he ingested methamphetamine with her, and he possessed methamphetamine and drug paraphernalia within his home. Id. The affidavit also contains Handshoe's detailed firsthand descriptions of various drug dealing materials that she had observed in the home. For instance, the affidavit notes Handshoe observed in a drawer in Phillips's living room several bags of methamphetamine and cash in a glass container with a red top. Id. Handshoe also indicated several scales could be found in a Good-N-Plenty box in Phillips's entertainment center and that a bag of "dope" was in the left side of Phillips's couch. Id.
[19] Handshoe also provided a detailed map of the home and indicated the location of firearms within it, according to the affidavit. Id. Finally, the affidavit indicated Handshoe's statements were under oath and against her penal interest, given that she implicated herself in criminal violations, such as possession of methamphetamine, beyond that for which she was arrested. Moreover, she revealed the location in Phillips's home of evidence of her previously undisclosed misconduct. Id. ; see Spillars , 847 N.E.2d at 956-57 (ruling that statements of informant caught "red-handed" must subject the informant to new criminal liability to be considered against the informant's penal interest). [20] The affidavit does not make clear whether Handshoe's allegation of Phillips's drug dealing was based on direct observation or speculation. Exs., p. 3. However, the remainder of the allegations in the affidavit support the judge's determination that Handshoe's hearsay statements were reliable enough to support both a finding of probable cause and issuance of the search warrant. See Shipman , 987 N.E.2d at 1127-28 (finding that informant's statements against penal interest were sufficient to establish probable cause for a search warrant).
B. Omission of Information
[21] Phillips attacks not only the contents of the search warrant affidavit but also its omissions. Officer Strahl was required to "include all material facts, which are those facts that ‘cast doubt on the existence of probable cause.’ " Ware v. State , 859 N.E.2d 708, 718 (Ind. Ct. App. 2007) (quoting Query v. State , 745 N.E.2d 769, 772 (Ind. 2001) ), trans denied. Where a warrant is supported in part by statements which are perjured or made with reckless disregard of the truth, the warrant is invalid unless the remainder of the supporting affidavit contains sufficient basis for probable cause. Franks v. Delaware , 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ; Jones v. State , 783 N.E.2d 1132, 1136 (Ind. 2003).
[22] Phillips claims Officer Strahl omitted crucial information that: (1) Handshoe may have been under the influence of drugs at the time of her statements; (2) her initial statements to police conflicted with her statements recounted in the affidavit; (3) she identified more than one drug supplier; and (4) Officer Strahl previously had doubted Handshoe's truthfulness.
[23] Phillips has failed to establish Officer Strahl omitted any material facts that would have left probable cause in doubt. Handshoe identified a second drug supplier in her statement attached to the affidavit, so, contrary to Phillips's claim, that information was not omitted. Exs., pp. 5-6. Although Handshoe gave police conflicting statements as to her own drug use and source, Handshoe's allegations as to her observations within Phillips's home during the prior three days were unequivocal. Officer Strahl did not err in failing to reveal non-existent conflicts.
[24] Officer Strahl's previous perception of Handshoe as untrustworthy is not a material fact. An officer's subjective beliefs and opinions are not relevant to the determination of probable cause. Moffitt v. State , 817 N.E.2d 239, 246 (Ind. Ct. App. 2004), trans. denied. Therefore, Officer Strahl properly omitted his outdated perceptions of Handshoe.
[25] That leaves only Phillips's claim that Officer Strahl should have mentioned Handshoe's recent drug use. In her statement attached to the search warrant affidavit, Handshoe indicates she "shot dope" about 4:00 p.m. on the day she was arrested. Exs., pp. 5-6. However, Handshoe also told Office Strahl that she had used drugs 30 minutes before she was arrested at 8:00 p.m. Tr. Vol. II, pp. 81, 86. The affidavit omitted that latter statement.
[26] The trial court essentially concluded the information regarding Handshoe's possible drug use shortly before her arrest was not material. Tr. Vol. II, p. 111. After reviewing Handshoe's videotaped statement during the suppression hearing, the trial court specifically found that Handshoe did not appear so impaired that she could not provide a reliable statement. Id.
[27] We agree with that conclusion. Even if Handshoe ingested drugs 30 minutes before her arrest, that was at least 3½ hours before she provided her written statements referenced in the search warrant affidavit. Exs., p. 5; Tr. Vol. II, p. 103. Phillips points to no evidence establishing Handshoe's impairment at the time of her written statements. At most, Phillips's argument amounts to speculation that Handshoe might have been under the influence of drugs. Although we believe the better course would have been for the officer to reveal Handshoe's statement about her recent drug use, we are not convinced that such information here casts doubt on the existence of probable cause. Contrary to Phillips's claims, the evidence seized during the search of his home was not inadmissible as the product of an illegal search authorized by a defective warrant.
As we find the search warrant was not constitutionally defective, we need not address the State's argument that the good faith exception to the warrant requirement applies.
II. Phillips's Convictions Violate Double Jeopardy
[28] We sua sponte raise a second issue: whether Phillips's separate convictions for Possession of Methamphetamine and Dealing in Methamphetamine violate double jeopardy. Because questions of double jeopardy implicate fundamental rights, we routinely correct double jeopardy violations even when not first invited by the parties. See Morales v. State, 165 N.E.3d 1002, 1009 (Ind. Ct. App. 2021) (sua sponte reversing one of two arson convictions on double jeopardy grounds), trans. denied. Here, Phillips's conviction for Possession of Methamphetamine must be vacated on double jeopardy grounds under our Supreme Court's test in Wadle v. State , 151 N.E.3d 227 (Ind. 2020).
[29] Where a single act or transaction implicates multiple statutes, Wadle requires that we engage in a multi-step process to determine whether the convictions comport with double jeopardy principles. Id. at 235.
[30] The Wadle analysis can best be understood by applying the following test:?
Do the Statutes Permit Multiple Punishment?
[31] We begin our analysis under Wadle by reviewing the two statutes under which Phillips was convicted. Possession of methamphetamine under Indiana Code § 35-48-4-6.1(a) requires a person to "knowingly or intentionally" possess the drug without a valid prescription or practitioner's order. Dealing in methamphetamine under Indiana Code § 35-48-4-1.1(a)(2) requires possession "with intent to deliver or finance the delivery" of the drug.
The State need not prove the lack of a valid prescription or practitioner's order. Instead, the defendant bears the burden of proving a valid prescription or practitioner's order as a defense. Williams v. State , 959 N.E.2d 360, 363 (Ind. Ct. App. 2012).
Both offenses include identical enhancing circumstances irrelevant to our discussion. See Wadle , 151 N.E.3d at 254 (noting that an enhanced punishment, whether based on attendant circumstances or on a prior conviction, presents no double jeopardy issue).
[32] Neither statute expressly authorizes multiple punishment for the same criminal act. Nor are these statutes part of a statutory scheme that requires multiple punishment. Because neither statute clearly permits multiple punishment, either expressly or by unmistakable implication, we must move to the next part of the Wadle test. 151 N.E.3d at 248. Is Possession of Methamphetamine an Included Offense of Dealing?
Few criminal statutes permit multiple punishment. The corrupt business influence statute, Ind. Code § 35-45-6-2, is one that seemingly does. It permits multiple punishments for the same criminal act by allowing additional punishment for a person's drug dealing business beyond that which the person could receive for the individual drug deals comprising that illegal enterprise. See id. ; Ind. Code § 35-45-6-1.
[33] As charged, an "included offense" is an offense that:
(1) "is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged,"
(2) "consists of an attempt to commit the offense charged or an offense otherwise included therein," or
(3) "differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission."
[34] Dealing of methamphetamine and possession of methamphetamine are included offenses under subsection (1). The material elements of possession of methamphetamine—that is, knowing or intentional possession of the drug—are established through proof of the material elements of dealing in methamphetamine—possession with intent to deliver. See I.C. § 35-48-4-1.1(a) ; I.C. § 35-58-4-6.1(a)(2).
[35] This conclusion is consistent with our analysis in pre- Wadle cases finding that possession of a drug is a lesser included offense of dealing the same drug. See , e.g. , Mason v. State , 532 N.E.2d 1169, 1172 (Ind. 1989) ("Possession of a narcotic drug is an inherently included lesser offense of dealing in a narcotic drug ..."); Richardson v. State , 856 N.E.2d 1222, 1230 (Ind. Ct. App. 2006) (finding convictions for possession of methamphetamine and dealing methamphetamine violated double jeopardy because possession was lesser included offense of dealing), trans. denied ; Thurman v. State , 602 N.E.2d 548, 554 (Ind. Ct. App. 1992) (ruling possession of cocaine was lesser included offense of dealing cocaine and dual convictions violated double jeopardy).
[36] Because Wadle created a new analysis for substantive double jeopardy, some of our prior jurisprudence may sow seeds of confusion in performing the lesser included analysis under Wadle . Specifically, we have stated that a lesser offense is necessarily included in the greater offense if it is impossible to commit the greater offense without first having committed the lesser offense. See , e.g. , Mason , 532 N.E.2d at 1172 ; Moore v. State , 471 N.E.2d 684, 687 (Ind. 1984) ; Harrison v. State , 32 N.E.3d 240, 249 (Ind. Ct. App. 2015), trans. denied. Those rulings seemingly express the general rule but not the uncommon exception. For instance, possession of methamphetamine or certain other drugs is not illegal if the defendant possesses a valid prescription or practitioner's order. See I.C. § 35-48-4-6.1(a) (methamphetamine); Ind. Code § 35-48-4-6 (cocaine); Ind. Code § 35-48-4-7 ("controlled substance"); Ind. Code § 16-42-19-19 (anabolic steroids); see also Williams , 959 N.E.2d at 363. That means a defendant in rare circumstances could legally possess a drug but still be convicted of dealing it. See id. ; Ind. Code 35-48-4-1(a)(2)(C) ; I.C. § 35-48-4-6 ; I.C. § 35-48-4-6.1(a)(2) ; I.C. § 35-48-4-1.1(a). In other words, a defendant could be guilty of the greater offense (drug dealing) without also being guilty of the lesser offense (drug possession).
[37] These are the types of vexing issues Wadle sought to resolve by adopting a new standard for substantive double jeopardy analysis. Under that standard, which relies on the definition of "included offense" in Indiana Code § 35-31.5-2-168, possession of methamphetamine and dealing methamphetamine are inherently included offenses. However, if they were not, the included offense analysis would not end there because the offenses could be factually included depending on the manner in which the State charged the defendant and the evidence produced at trial. In other words, a prosecutor cannot secure two convictions for the same act using the exact same evidence. In this case, the prosecutor used evidence of possession of the same methamphetamine to prove two crimes: possession and intent to deal.
[38] The methamphetamine that the State alleged Phillips possessed was the same methamphetamine that the State charged Phillips with dealing. App. Vol. II, pp. 14-15; Tr. Vol. III, p. 142. Moreover, the State specifically advised the jury during closing statements that "[i]f you're dealing you're in possession" when describing the evidence of the two offenses. Tr. Vol. III, p. 158. The State's allegations and proof assumed Phillips's possession of methamphetamine was an inseparable part of his dealing that same drug. Accordingly, as charged and tried, Phillip's possession count was a factually included offense of his dealing count.
Was Phillip's possession of methamphetamine part of the same transaction as dealing?
[39] The determination that Phillip's possession of methamphetamine was included in his offense of dealing leads us to the final step in the Wadle analysis. We must examine the underlying facts to determine whether the defendant's actions were "so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction." Wadle , 151 N.E.3d at 253. The record establishes Phillips's possession and dealing of methamphetamine were simultaneous, occurred solely within Phillips's home within the few days before the search, and were in furtherance of Phillips's use and sale of the methamphetamine. His offenses therefore constituted a single transaction under Wadle , meaning his convictions for both possession of methamphetamine and dealing in methamphetamine violated double jeopardy. Id.
[40] This result is consistent with our pre- Wadle decisions, despite the seismic shift in substantive double jeopardy analysis that Wadle incited. Jones v. State , 159 N.E.3d 55, 62 (Ind. Ct. App. 2020) (citing Wadle , 151 N.E.3d at 244 ), trans. denied ; see, e.g. , Richardson , 856 N.E.2d at 1230 (finding convictions for possession of methamphetamine and dealing in methamphetamine violated double jeopardy under Art. I, § 14 of the Indiana Constitution ); Kendall v. State , 825 N.E.2d 439, 453 (Ind. Ct. App. 2005), summarily aff'd in part and aff'd on other grounds in part by 849 N.E.2d 1109 (Ind. 2006) (possession of cocaine is lesser included offense of possession of cocaine with intent to deliver). Prior to Wadle , litigants navigated through a maze of fact-specific caselaw and common law rules that often fostered confusion and generated inconsistent results. Wadle blazed a highly demarcated trail to replace that myriad of uncertain paths. Applying Wadle's multi-part test reveals Phillip's convictions for both possession of methamphetamine and dealing in methamphetamine violate double jeopardy. [41] Accordingly, we affirm Phillips's conviction for Level 2 felony dealing in methamphetamine. We reverse Phillips's conviction for Level 3 felony possession of methamphetamine and remand with instructions to vacate that conviction.
Indiana Code § 35-38-1-6 dictates that dual convictions may not be entered for included offenses. But under Wadle , convictions for both an offense and an included offense may stand unless the actions are "so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction." 151 N.E.3d at 253. Wadle adds a restriction not evident in Indiana Code § 35-38-1-6, which expressly prohibits—without exception—entry of judgment of conviction on both the offense and included offense. For that reason, Wadle seemingly would allow convictions that Indiana Code § 35-38-1-6 would not. Wadle appeared to acknowledge this potential divergence when it stated that "[d]epending on the scope of protection, [included offense] statutes may expand or restrict the meaning of ‘same offense’ in relation to the judicial tests ...." 151 N.E.3d at 240. The Wadle Court further embraced that concept later in the opinion, noting that the double jeopardy determination " ‘does not end with an evaluation of the comparison of the specific statutory provisions which define the offenses.’ " Id. at 248 (citing Bigler v. State , 602 N.E.2d 509, 520 (Ind. Ct. App. 1992) ).
The tension between Indiana Code § 35-38-1-6 and Wadle is not one we need to resolve today because both Wadle and the included offense statutes separately dictate the same result here: reversal of the included offense of possession of methamphetamine. See I.C. § 35-31.5-2-168 (strictly defining "included offense" and when applied here, defining Phillips's possession of methamphetamine count as an included offense); Ind. Code § 35-38-1-6 (prohibiting entry of judgment of conviction on an "included offense" where the defendant is charged in separate counts with both the offense and the included offense and is found guilty of both).
[42] Affirmed in part, reversed in part, and remanded.
Kirsch, J., and Altice, J., concur.