Baker, J.
Darnell Cleveland appeals his convictions for Class A Misdemeanor Carrying a Handgun Without a License and Class A Misdemeanor Possession of Marijuana, arguing that (1) the trial court should have excluded all evidence obtained from his search and arrest because they were both unlawful; (2) the trial court erred when it ordered the destruction of his handgun post-conviction; and (3) the trial court erred when it ordered him to pay a public defender fee without first conducting an indigency hearing. Finding that the search was
lawful and that there was no error regarding the public defender fee, but that there was error regarding the trial court’s order to destroy, we affirm in part and reverse and remand in part with instructions.
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On November 27, 2017, the State charged Cleveland with one count of Class A misdemeanor carrying a handgun without a license and one count of Class A misdemeanor possession of marijuana. At Cleveland’s August 27, 2018, bench trial, Cleveland objected to the State’s introduction of the handgun and the marijuana found inside the gold bag, arguing that the evidence was obtained from a search that was unlawful under both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.
The trial court overruled his objection. Later, at the conclusion of trial, Cleveland renewed his objection, arguing that the State lacked probable cause to arrest him in the first place. Once again, the trial court overruled his objection.
The trial court found Cleveland guilty as charged. After a sentencing hearing, the trial court imposed a 365-day aggregate sentence, with 263 days suspended to probation and 90 days suspended to home detention. Additionally, without conducting an indigency hearing, the trial court ordered Cleveland to pay a $50 public defender fee; the trial court also ordered that Cleveland’s handgun be destroyed. Cleveland now appeals.
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Indiana Code section 35-47-3-2(b) authorizes trial courts to order return or disposal of a firearm post-conviction, and it says the following:
(b) Firearms shall be returned to the rightful owner at once following final disposition of the cause . . . . If the rightful ownership is not known the law enforcement agency holding the firearm shall make a reasonable attempt to ascertain the rightful ownership and cause the return of the firearm. However, nothing in this chapter shall be construed as requiring the return of firearms to rightful owners who have been convicted for the misuse of firearms. . . .
(Emphasis added). This Court has affirmed a trial court’s authority to order destruction of a firearm for those convicted of misuse of a firearm. See Barany v. State, 54 N.E.3d 386, 387-88 (Ind. Ct. App. 2016) (holding that the trial court’ order to destroy a firearm used by defendant for murder was an appropriate option because defendant had misused the weapon).
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In Trice v. State, this Court directly answered the question of whether use of a firearm included mere possession of a firearm, holding as follows:
[T]he definitions of the term “misuse” can best be applied here to mean that a conviction for the misuse of a firearm must involve some use of the firearm that is incorrect, improper, or unsuitable. Trice did not use the handgun; rather, he was merely in possession of it. Thus, it defies logic and relevant precedent to say that he misused the handgun.
114 N.E.3d 496, 501 (Ind. Ct. App. 2018) (emphases in original), trans. denied. Stated another way, Trice held that the definition of use does not encompass mere possession.
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Given this legal backdrop, we find Cleveland’s argument compelling. This Court, along with our Supreme Court, has reasonably concluded that the General Assembly did not define “use” to include an action like “possession.” In evaluating precedent, deference to the legislature, and a strict construction of criminal statutes against the State with ambiguities resolved in favor of the defendant, see Chastain v. State, 58 N.E.3d 235, 238 (Ind. Ct. App. 2016), trans. denied, we conclude that a conviction involving unlawful possession of a firearm alone does not give a trial court statutory authority to order destruction of a firearm post-conviction.
Moreover, like the defendant in Trice, Cleveland was found with a gun, was compliant with law enforcement throughout the entire process, and was tried and convicted under the same criminal statute. There is no evidence to support the contention that Cleveland was using the firearm in an incorrect, improper, or unsuitable way. Accordingly, the trial court erred when it ordered destruction of Cleveland’s firearm post-conviction.
However, in terms of relief, the immediate return of Cleveland’s firearm is not permissible under current law. Cleveland is still not licensed to carry a firearm, and the trial court does not have the authority to return the firearm directly to Cleveland. As of now, given our lack of statutory guidance, we order that the IMPD must withhold Cleveland’s firearm until a proper solution becomes available. This is a conundrum that only our General Assembly can resolve.
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The judgment of the trial court is affirmed in part and reversed and remanded in part with instructions.
Robb, J., concurs.
Bradford, J., concurs in part and dissents in part with a separate opinion.
While I concur with the majority’s disposition in most respects, I must disagree with its conclusion that a conviction for carrying a handgun without a license does not entitle a law enforcement agency to seize and destroy the handgun in question. I find the reasoning of Trice v. State, 114 N.E.3d 496 (Ind. Ct. App. 2018), trans. denied, on which Cleveland relies, to be unpersuasive and so would affirm the judgment of the trial court in full. Consequently, I respectfully dissent in part.
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In summary, I have little trouble concluding that possession of a handgun without a license qualifies as misuse pursuant to Indiana Code section 35-47-3-2. Consequently, I would affirm the judgement of the trial court in all respects.