Vaidik, C.J.
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), 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.
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.
With regard to the five controlled cocaine buys, the State charged Walton with five counts of dealing in cocaine… 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: dealing in cocaine—possession with intent to deliver (… cocaine found in the downstairs apartment), possession of cocaine (… cocaine found in the upstairs apartment), conspiracy to commit dealing in cocaine, maintaining a common nuisance, and two counts of unlawful possession of a firearm by a serious violent felon (“SVF”) … In addition, the State accused Walton of being a habitual offender based on his prior felony convictions.
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.
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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.
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.’” (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.
The dissent addresses an issue that Walton has not raised: whether multiple SVF convictions based on the simultaneous possession of multiple firearms are 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. … The dissent concludes that Taylor was wrongly decided. We disagree.
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. … For these reasons and the other reasons stated in Taylor, Walton’s SVF convictions are permissible under the language of the SVF statute.
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, and a separate count of possession of cocaine, based on the cocaine found in the upstairs apartment.
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)… Therefore, we must remand this matter to the trial court with instructions to vacate the judgment of conviction and the sentence on Count XIV.
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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.
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… 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.
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 … 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
Affirmed in part and reversed and remanded in part.
Robb, J., concurs.
Bailey, J, dissents with separate opinion.
Bailey, Judge dissenting
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.