Johnny Paul Whitt, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Following two factually similar controlled buys occurring weeks apart, the State charged Johnny P. Whitt, Jr., under separate cause numbers, with one count each of Level 2 felony dealing in methamphetamine. Whitt pled guilty pursuant to a combined plea agreement, and the trial court ordered the sentences to be served consecutively. In this consolidated appeal,¹ Whitt asserts, and the State concedes, that it was inappropriate to run the sentences consecutively.

[2] We reverse and remand.

Facts & Procedural History

[3] On November 15, 2023, a confidential informant (CI), acting under the supervision of Officer Jonathan Bryant of the Marshall County Sheriff's Department, purchased 27.9 grams of methamphetamine from Whitt in Lapaz, Indiana. Two weeks later, on November 29, Whitt sold approximately 28 grams of methamphetamine to the same CI, again under Officer Bryant's supervision, in another controlled drug transaction in Lapaz.

[4] The State charged Whitt with Level 2 felony dealing in methamphetamine under two cause numbers, 50D01-2311-F2-12 (Cause F2-12) and 50D01-2402-F2-2 (Cause F2-2). Whitt reached a plea agreement (the Agreement) with the State to resolve both cases. Under the Agreement, Whitt agreed to plead guilty to each charge, with “a 17.5-year cap on the executed sentence” for each Level 2 felony.² F2-12 Appendix at 91. The Agreement further provided that “concurrent vs. consecutive” sentencing was left open for the parties to argue. Id.; see also Transcript at 7.

[5] Following the trial court's acceptance of the plea, a sentencing hearing was held on October 24, 2025. The presentence investigation report (PSI) reflected that Whitt's criminal history began in 1990, having five misdemeanor convictions and multiple felony convictions. Whitt's felony convictions, some out of state, included possession/manufacture/delivery of a controlled substance, possession of drug paraphernalia, possession of firearms, residential entry, possession of methamphetamine, and three convictions for dealing in methamphetamine. In addition, Whitt had violations of probation, committed new crimes while on probation, and was on probation when he sold methamphetamine to the CI in the present cases.

[6] The State argued for consecutive sentences, one 17.5-year sentence and the other 14.5, for an aggregate sentence of 32 years; Whitt proposed concurrent 17.5-year sentences. The trial court found that Whitt's guilty plea was a mitigating circumstance but that his criminal history was aggravating. The court explained that although Whitt's criminal history was not the most extensive, it was “one of the worst” that the court had reviewed in terms of the level of offenses. Transcript at 42. The trial court imposed twelve years on each conviction and ordered that they be served consecutively. Whitt now appeals.

Discussion & Decision

[7] The Indiana Constitution authorizes independent appellate review and revision of a trial court's sentencing decision. Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016). Appellate courts implement this authority through Ind. Appellate Rule 7(B), which provides that we may revise a sentence if “after due consideration of the trial court's decision” we find “the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Id. A defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).

[8] Whitt asserts, and the State concedes, that under Indiana precedent, imposing consecutive sentences in this case was inappropriate, given that “these were two controlled buys orchestrated by the same police officer, using the same confidential informant, to purchase methamphetamine ․ separated by only two weeks.” Appellant's Brief at 5. We agree.

[9] Our Supreme Court has held that “[c]onsecutive sentences are not appropriate when the State sponsors a series of virtually identical offenses.” Gregory v. State, 644 N.E.2d 543, 546 (Ind. 1994) (finding that imposition of four consecutive presumptive terms was “inappropriate” where defendant was convicted of four counts of selling cocaine to the same police informant in a ten-day period); see also Beno v. State, 581 N.E.2d 922, 924 (Ind. 1991) (holding that “because the crimes committed were nearly identical State-sponsored buys, consecutive sentences were inappropriate”). We have subsequently explained that, in these types of investigations, the State controls the number of opportunities presented to a defendant to engage in criminal conduct, and “[a]s a result, ‘stacking’ the individual counts has been deemed inappropriate.” Alvarez v. State, 983 N.E.2d 626, 628 (Ind. Ct. App. 2013), trans denied; see also Williams, 891 N.E.2d at 635 (“[T]he clear import ․ [is] that the State may not ‘pile on’ sentences by postponing prosecution to gather more evidence[.]”).

[10] Much like Whitt, the defendant in Rios v. State, 930 N.E.2d 664 (Ind. Ct. App. 2010), claimed that ordering him to serve consecutive five-year sentences for two counts of Class C dealing a look-alike substance was inappropriate because the police-sponsored buys were virtually identical, occurred within one week of each other, used the same informant, and both involved the attempted purchase of cocaine and the delivery of the same look-alike substance.³ The Rios court agreed, finding that the imposition of consecutive sentences contravened Beno and Gregory, and reversed the trial court's order of consecutive sentences. Id. at 669. Likewise here, reversal of Whitt's consecutive sentences is warranted.

[11] Upon finding an irregularity in the trial court's sentencing decision, we “may remand to the trial court for a clarification or a new sentencing determination, or affirm the sentence if the error is harmless, or impose a proper sentence.” Id. Here, Whitt asks that we order the two twelve-year sentences imposed by the trial court to be served concurrently, while the State maintains that we should remand “[b]ecause it is unclear from the record what sentence the trial court would have imposed.” Appellee's Brief at 8.

[12] We elect to remand to the trial court for a new sentencing determination. We express no opinion as to the sentence to be imposed, but we note that in resentencing Whitt to serve concurrent terms on the dealing convictions, the trial court retains its right to sentence Whitt up to 17.5 years based on any factors it finds applicable.

[13] Judgment reversed and remanded.

FOOTNOTES

1.   Whitt filed a notice of appeal for each of the two cause numbers. Upon Whitt's motion, this court consolidated the appeals.

2.   Pursuant to Ind. Code § 35-50-2-4.5, a person who commits a Level 2 felony “shall be imprisoned for a fixed term of between ten and thirty years, with the advisory sentence being seventeen and one-half years.”

3.   We note that Rios, like Whitt, did not receive the maximum available sentence for his convictions. See I.C. 35-50-2-6 (sentencing range for Class C felony conviction is “a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years”).

Altice, Judge.

Brown, J. and DeBoer, J., concur.