Court of Appeals of Indiana | Opinion 34A04-1708-CR-1784 | December 28, 2018 Page 1 of 8

ATTORNEY FOR APPELLANT

Derick W. Steele

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. Mackenzie

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Dion C. Cannon,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 28, 2018

Court of Appeals Case No.

34A04-1708-CR-1784

Appeal from the Howard Superior 

Court

The Honorable William C. 

Menges, Jr., Judge

Trial Court Cause No.

34D01-1511-F3-985

Riley, Judge.
Court of Appeals of Indiana | Opinion 34A04-1708-CR-1784 | December 28, 2018 Page 2 of 8

STATEMENT OF THE CASE

[1] Appellant-Defendant, Dion C. Cannon (Cannon), appeals the trial court’s 

imposition of a consecutive sentence following a guilty plea. 

[2] We affirm.

ISSUE

[3] Cannon presents us with one issue on appeal, which we restate as: Whether the 

trial court appropriately imposed a consecutive sentence. 

FACTS AND PROCEDURAL HISTORY

[4] On January 16, 2014, August 17, 2015, and August 24, 2015, police officers 

with the Kokomo Police Department, assisted by confidential informants, 

engaged in several controlled buys of narcotics from Cannon. On November 5, 

2015, the State filed an Information under cause number 34D01-1511-F3-985 

(Cause F3-985), charging Cannon with three Counts of dealing a narcotic drug 

as Level 3 felonies, two Counts of dealing a narcotic drug as Level 5 felonies, 

and one Count of dealing cocaine, as a Class A felony. A warrant was issued 

under seal for Cannon’s arrest following the filing of these charges. 

[5] On November 18, 2015, officers with the Kokomo Police Department served 

the sealed arrest warrant on Cannon at his residence. When the officers 

knocked on the residence’s door, Cannon, who was alone in the house, yelled, 

“oh s***, just a minute.” Cannon v. State, 99 N.E.3d 274, 277 (Ind. Ct. App. 

2018), trans. denied. From a window, the officers observed Cannon conceal 
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something and when he opened the door, the officers detected the odor of burnt

marijuana. After Cannon was handcuffed and read his rights, Cannon 

admitted that “it was marijuana, and that’s all the illegal drugs that [I have] in 

the house.” Id. Based on Cannon’s statement and the smell of marijuana, the 

officers obtained a search warrant for the residence. Following evidence

recovered during the execution of the search warrant, the State filed an 

Information under Cause number 34D01-1511-F2-1036 (Cause F2-1036), 

charging Cannon with dealing a narcotic drug as a Level 2 felony, possession of 

a narcotic drug as a Level 3 felony, neglect of a dependent as a Level 5 felony, 

theft of a firearm as a Level 6 felony, possession of marijuana as a Level 6 

felony, and maintaining a common nuisance as a Level 6 felony. After a jury 

trial, Cannon was found guilty of the Level 3 felony possession of a narcotic 

drug, Class A misdemeanor possession of marijuana, and Level 6 felony 

maintaining a common nuisance. On June 13, 2017, the trial court sentenced 

Cannon to an aggregate sentence of fifteen years. We affirmed his sentence on 

appeal.

[6] After Cannon was convicted and sentenced under Cause F2-1036, Cannon 

entered into a plea agreement with the State in the instant Cause F3-985, in 

which he agreed to plead guilty to dealing a narcotic drug as a Level 5 felony, 

with dismissal of the remaining Counts and sentencing left to the discretion of 

the trial court. On July 25, 2017, the trial court conducted a sentencing hearing 

in Cause F3-985. At the completion of the evidence, the trial court sentenced 
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Cannon to 1,825 days in the Department of Correction, with the sentence to 

run consecutive to the sentence imposed in Cause F2-1036. 

[7] Cannon now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

[8] Cannon contends that the trial court abused its discretion by ordering his 

sentence to be served consecutively to an already imposed sentence in a 

separate case. This court has the constitutional authority to revise a sentence 

authorized by statute, if “after due consideration of the trial court’s decision,” 

the court finds that the sentence imposed is inappropriate in light of the nature 

of the offense and the character of the offender. See Ind. Appellate Rule 7(B). 

The question under App. R. 7(B) is “not whether another sentence is more 

appropriate” but rather “whether the sentence imposed is inappropriate.” King 

v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The burden is on the 

defendant to persuade the appellate court that his sentence is inappropriate. 

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “Sentencing review under 

Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State, 972 

N.E.2d 864, 876 (Ind. 2012). Therefore, when reviewing a sentence, our 

principal role is to “leaven the outliers” rather than necessarily achieve what is 

perceived as the “correct” result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 

2008). We do not look to determine if the sentence was inappropriate; instead,

we look to ensure the sentence was not inappropriate. King, 894 N.E.2d at 268. 
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[9] In disputing his sentence, Cannon claims that, pursuant to the rationale 

advanced in Beno v. State, 581 N.E.2d 922 (Ind. 1999) and its progeny, the State 

cannot be allowed “to create State-sponsored criminal activity, cause a delay in 

criminal prosecution, and then stack charges resulting directly from the 

evidence obtained during the State-sponsored criminal activity.” (Appellant’s 

Br. p. 9). In Beno, our supreme court held that a series of undercover drug buys 

performed during a sting operation, while permissible, did not create a 

circumstance in which it would be “appropriate to then impose maximum and 

consecutive sentences for each additional violation.” Id at 924. The court 

elaborated that 

[a]s a result of this operation, Beno was hooked once. The State 

then chose to let out a little more line and hook Beno for a 

second offense. There is nothing that would have prevented the 

State from conducting any number of additional buys and 

thereby hook Beno for additional crimes with each subsequent 

sale. We understand the rationale behind conducting more than 

one buy during a sting operation, however, we do not consider it 

appropriate to then impose maximum and consecutive sentences

for each additional violation. If Beno, for instance, had sold 

drugs to different persons, or if he had provided a different type 

of drug during each buy, the consecutive sentences imposed 

might seem more appropriate. Here, however, because the 

crimes committed where nearly identical State-sponsored buys, 

consecutive sentences were inappropriate.

Id. 

[10] Seven years later, our supreme court expanded on Beno’s precedent in 

Eckelbarger v. State, 51 N.E.3d 169 (Ind. 2016). In Eckelbarger, the State, through 
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an informant, purchased methamphetamine from Eckelbarger on two occasions 

and then procured a search warrant based on the informant’s buys. Id. at 170. 

During the execution of the warrant, methamphetamine precursors and 

evidence of previous manufacturing were recovered. Id. Eckelbarger was 

charged and convicted of two Counts of dealing methamphetamine by delivery, 

one Count of dealing methamphetamine by manufacture, and one Count of 

possession of precursors. Id. The two delivery Counts were to be served 

concurrent to each other, and consecutive to the manufacturing and possession 

Counts, which were in turn to be served concurrent to each other. Id. Our 

supreme court noted that “consecutive sentences are not appropriate when the 

State sponsors a series of virtually identical offenses.” Id. Moreover, under the 

same reasoning, the manufacturing and possession convictions, which “were 

supported by evidence seized pursuant to a search warrant based on the dealing 

methamphetamine by delivery Counts,” created a circumstance where the 

imposition of consecutive sentences was inappropriate. Id. 

[11] The next year, we applied these precedents on a slightly different variation of 

the facts. In Walton v. State, 81 N.E.3d 679, 680 (Ind. Ct. App. 2017), we

analyzed the situation where the State conducted a series of controlled buys 

over several months in 2015. After concluding the controlled buys but before 

Walton was charged for his conduct, the State obtained a search warrant for 

Walton’s properties. Id. The outcome of the controlled buys resulted in 

Walton being charged with five Counts of dealing cocaine, while the execution 

of the search warrant resulted in him being charged with six additional Counts 
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concerning dealing cocaine, conspiracy to commit dealing in cocaine, 

maintaining a common nuisance, and two Counts of possession of a firearm by 

a serious violent felon. Id. Walton was convicted on all Counts, and the trial 

court imposed a 34-year sentence for the controlled buys, and a 30-year 

sentence for the charges resulting from the search warrant for an aggregate, 

consecutive sentence of 64 years. Id. Mindful of our supreme court’s

Eckelbarger decision, we held that because the controlled buys led to a search of 

Walton’s properties, which, in turn, resulted in additional charges and 

convictions that were supported by “evidence seized as a direct result of the 

controlled buys,” the drug-related convictions resulting from the search warrant 

could not be imposed consecutively to the convictions resulting from the 

controlled buys. Id. at 683. 

[12] Based on the facts before us, we conclude that Beno and its progeny are 

inapposite to the instant Cause because the search warrant which supported the 

charges in Cause F2-1036 was not obtained in furtherance of an ongoing 

investigation but rather was requested based on the independent observations of 

police officers. The evidence reflects that after law enforcement officers 

wrapped up a month-long investigation, including a series of undercover buys, 

the State filed charges, and a sealed warrant was issued for Cannon’s arrest. 

Accordingly, the investigation was completed and Cause F3-985 was initiated. 

When the police officers served the warrant, they were not focusing on new 

buys or on a search of the residence; rather, they attempted to execute Cannon’s

arrest. However, upon contacting Cannon, the officers detected the odor of 
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marijuana, whereupon Cannon made some incriminating statements. Based on 

the officers’ observations and Cannon’s admissions, the officers applied for and 

obtained a search warrant. As a result of the evidence gathered during the 

execution of the search warrant, a new Information was filed in Cause F2-1036. 

Accordingly, the charges in Cause F2-1036 are derived from actions 

independent and distinct from the charges in Cause F3-985 and are not a 

continuation of the earlier charges. As no close nexus exists between the Statesponsored purchases and the State’s charges derived from the execution of the 

search warrant, Beno and its progeny are distinguishable and the trial court did 

not abuse its discretion by imposing consecutive sentences.

CONCLUSION

[13] Based on the foregoing, we conclude that the trial court’s imposition of 

consecutive sentences is not inappropriate pursuant to Indiana Appellate Rule 

7(B).

[14] Affirmed.

[15] Kirsch, J. and Robb, J. concur