Marcus Noy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 30 2019, 9:11 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E. C. Leicht Curtis T. Hill, Jr. Peru, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marcus Noy, October 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-820 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff. Menges, Judge Trial Court Cause No. 34D01-1707-F2-820

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 1 of 7

Statement of the Case [1] Marcus Noy (“Noy”) appeals the sentence imposed after a jury convicted him

of Level 2 felony dealing in cocaine;1 Level 3 felony possession of a narcotic

drug;2 and Level 3 felony possession of cocaine.3 He argues that the trial court

abused its discretion in denying trial counsel’s motion to withdraw and also

asks this Court to remand the case to the trial court for clarification of his

sentence. Concluding that: (1) the trial court did not abuse its discretion in

denying trial counsel’s motion to withdraw; and (2) there is a conflict between

the trial court’s oral sentencing statement and the written sentencing statement,

we affirm and remand with instructions for the trial court to clarify the sentence

that it intended to impose. [2] Affirmed and remanded with instructions.

Issues 1. Whether the trial court abused its discretion in denying trial counsel’s motion to withdraw.

2. Whether this case should be remanded to the trial court for clarification of Noy’s sentence.

1 IND. CODE § 35-48-4-1. 2 I.C. § 35-48-4-6. 3 Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 2 of 7

Decision [3] In June 2017, Noy was a long-term guest at the Baymont Inn in Kokomo.

While cleaning his room, a housekeeper observed on the nightstand a bag

containing a white powdered substance. The housekeeper contacted the hotel

manager, who found in the room another bag containing a white powered

substance. The manager contacted law enforcement officials, who obtained a

warrant to search the room. During the search, law enforcement officials found

296 grams of compressed heroin, 52 grams of cocaine, a digital scale covered in

white residue, Noy’s credit card that also had a white residue on it, and a

cutting agent. [4] The State charged Noy with Count 1, Level 2 felony dealing in a narcotic drug

(heroin); Count 2, Level 2 felony dealing in cocaine; Count 3, Level 3 felony

possession of a narcotic drug (heroin); and Count 4, Level 3 felony possession

of cocaine. Private counsel (“private counsel”) represented Noy at trial. A jury

convicted Noy of Level 2 felony dealing in cocaine, Level 3 felony possession of

a narcotic drug, and Level 3 felony possession of cocaine, and acquitted him of

Level 2 felony dealing in a narcotic drug. [5] In February 2019, after the trial, but before the sentencing hearing, Noy sent a

letter to the trial court. In the letter, Noy explained that although he had paid

private counsel to represent him, counsel was “the reason why [Noy] was found

guilty.” (App. 32). According to Noy, counsel “did none of the things [Noy

had] asked.” (App. 32). Specifically, Noy explained that he had asked counsel

“to file a suppression motion about the hotel maids entering [his] room illegally Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 3 of 7

and about hotel policy about the maids cleaning a room that [was] occupied.”

(App. 32). Noy, who believed that he would not have been convicted had the

motion been filed, asked the trial court to appoint a public defender for the

sentencing hearing. [6] In response to Noy’s letter, private counsel filed a motion to set a counsel status

hearing, which the trial court granted. At the hearing, private counsel told the

trial court that based on Noy’s letter, private counsel believed that there had

been a breakdown in the attorney and client relationship. Private counsel

tendered a motion to withdraw his appearance. The State took no position on

the motion. The trial court explained that Noy did not have the right to have a

public defender appointed for the sentencing hearing “simply because [he did

not] like the way that [private counsel had] handled the trial.” (Tr. Vol. 2 at

170-71). The trial court further explained that there had “been absolutely

nothing that the Court ha[d] seen to show that [private counsel was] either

ineffective or unethical or violated anything else.” (Tr. Vol. 2 at 171).

According to the trial court, it “s[aw] no reason to discharge [private counsel]

simply because [Noy . . . ] didn’t like the outcome of the trial.” (Tr. Vol. 2 at

171). The trial court instructed Noy to choose whether he wanted to represent

himself or be represented by private counsel. After some discussion, Noy

decided that he wanted to proceed with private counsel at the sentencing

hearing. Accordingly, the trial court denied private counsel’s motion to

withdraw, and private counsel represented Noy at the sentencing hearing the

following day.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 4 of 7 [7] After hearing testimony at the sentencing hearing, the trial court vacated the

conviction for Level 3 felony possession of cocaine for double jeopardy reasons.

Thereafter, the trial court orally sentenced Noy to thirty (30) years executed for

Level 2 felony dealing cocaine conviction and sixteen (16) years for the Level 3

felony possession of a controlled substance conviction. The trial court ordered

the sentences to run consecutively to each other and suspended the sixteen (16)

year sentence to supervised probation. [8] A few days later, the trial court issued a written sentencing order wherein it

sentenced Noy to thirty (30) years executed for the Level 2 felony dealing

cocaine conviction and sixteen (16) years for the Level 3 possession of a

controlled substance conviction. However, the trial court ordered the sixteen

(16) year sentence to be served in the Department of Correction rather than on

probation. Noy now appeals.

Decision [9] Noy argues that the trial court abused its discretion in denying private counsel’s

motion to withdraw. He also asks this Court to remand the case to the trial

court for clarification of his sentence. We address each of his arguments in

turn.

1. Motion to Withdraw

[10] Noy first argues that the trial court abused its discretion in denying private

counsel’s motion to withdraw. However, Noy has waived appellate review of

this issue because his brief, conclusory argument is supported neither by citation Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 5 of 7

to authority nor cogent argument. See Smith v. State, 822 N.E.2d 193, 202-03

(Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal

where the party fails to develop a cogent argument or provide adequate citation

to authority and portions of the record.”), trans. denied. [11] Waiver notwithstanding, we find no error. Whether to allow counsel to

withdraw is within the trial court’s discretion, and we will reverse only “when

denial constitutes a clear abuse of discretion and prejudices the defendant’s

right to a fair trial.” Strong v. State, 633 N.E.2d 296, 300 (Ind. Ct. App. 1994).

A defendant must demonstrate that he was prejudiced before we may reverse

on this issue. Bronaugh v. State, 942 N.E.2d 826, 830 (Ind. Ct. App. 2011), trans.

denied. Here, Noy has failed to allege or demonstrate that private counsel’s

continued representation at sentencing prejudiced him. The trial court did not

abuse its discretion in denying counsel’s motion to withdraw.

2. Clarification of Noy’s Sentence

[12] Noy also asks this Court to remand the case to the trial court for clarification of

his sentence. The State agrees with Noy’s request. Our review of the

sentencing statements reveals that in the oral sentencing statement, the trial

court ordered Noy’s sixteen (16) year sentence for Level 3 possession of a

controlled substance to be suspended to probation. However, in its written

sentencing statement, the trial court ordered Noy to serve the sixteen (16) year

sentence in the Department of Correction. Where, as here, we are confronted

with a conflict between the oral sentencing statement and the written sentencing

Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 6 of 7

statement, we may remand for clarification. See Weston v. State, 2019 WL

4783480 (Ind. Ct. App. October 1, 2019). Accordingly, we remand with

instructions for the trial court to clarify whether it intended for Noy to serve the

sixteen (16) year sentence on supervised probation or in the Department of

Correction.4 [13] Affirmed and remanded with instructions.

Robb, J., and Mathias, J., concur.

4 Noy also argues that the trial court erred in ordering his sentences to run consecutively to each other and that his aggregate sentence is inappropriate. However, because we are remanding the case to the trial court for a clarification of Noy’s sentence, we need not address these issues.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-820 | October 30, 2019 Page 7 of 7