MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 12 2019, 7:10 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean C. Mullins Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Curtis L. Armour, June 12, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2929 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Diane R. Boswell, Judge Trial Court Cause No. 45G03-1505-F2-3
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019 Page 1 of 6 [1] Curtis L. Armour (“Armour”) pleaded guilty to one count of dealing in
cocaine1, a Level 4 felony, and was sentenced to seven years in the Indiana
Department of Correction. He now appeals his sentence, arguing that his
sentence is inappropriate in light of the nature of the offense and his character.
[2] We affirm.
Facts and Procedural History [3] In early 2015, Armour was laid off from his employment. Appellant’s App. Vol.
II at 53. He lost his home and could not financially support himself or his
family. Tr. Vol. II at 42. Armour then began selling cocaine. Id. In February
2015, Armour sold cocaine to an undercover police officer on four occasions.
Id. at 43. Each time, the cocaine weighed more than one gram and less than
five grams. Id. Armour was initially charged with four counts of dealing in
cocaine, as Level 3 felonies, and one count of dealing in cocaine as a Level 2
felony. Appellant’s App. Vol. II at 72. During the plea negotiations, the charges
were amended, and Armour was charged with one count of dealing in cocaine
as a Level 4 felony, and the other charges were dismissed.
[4] While waiting for his case to be resolved, Armour obtained a job as a janitor,
and, at the time of sentencing, he had maintained his employment for nearly
three years. Tr. Vol. II at 39. During this time, Armour became more
1 See Ind. Code § 34-48-4-1(c).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019 Page 2 of 6 financially stable and started his own savings account. Id. at 53. He also began
to provide more support for his eight children. Id. at 52.
[5] In preparation for the sentencing hearing, Armour was assessed by the IRAS-
CST and determined to be a “HIGH” risk to reoffend. Appellant’s App. Vol. II at
54. The trial court considered this information and Armour’s criminal history,
which began in 1996. On the two occasions that Armour was previously
allowed to serve his sentence on probation, he violated his probation, and the
State filed petitions to revoke his probation. Tr. Vol. II at 46. The trial court
found Armour’s criminal history to be an aggravating factor and found no
mitigating factors. Id. at 67. Armour was sentenced to seven years executed in
the Indiana Department of Correction. Id.
Discussion and Decision [6] Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
[c]ourt finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Our Supreme Court has explained
that the principal role of appellate review should be to attempt to leaven the
outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.
State, 895 N.E.2d 1219, 1225. (Ind. 2008). We independently examine the
nature of Armour’s offense and his character under Appellate Rule 7(b) with
substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d
344, 355 (Ind. 2015). “In conducting our review, we do not look to see whether
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019 Page 3 of 6 the defendant’s sentence is appropriate or if another sentence might be more
appropriate; rather, the test is whether the sentence is ‘inappropriate.’” Barker v.
State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a
sentence is inappropriate ultimately depends upon “the culpability of the
defendant, the severity of the crime, the damage done to others, and a myriad
of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at
1224. Armour bears the burden of persuading this court that his sentence is
inappropriate. Id.
[7] Armour argues that his sentence is inappropriate in light of the nature of the
offense and his character. He contends that the nature of the offense did not
warrant the aggravated sentence because the offense was not more egregious
than necessary to fulfill the elements of the crime. Appellant’s Br. at 6. He
asserts that the trial judge found the nature of the offense was not an
aggravating factor and claims that the judge failed to recognize his character
improvements as a mitigating factor. Id. at 8-9. Armour states that he has more
financial stability and job security, and this will remove his likelihood to return
to criminal activities. Id. Armour requests that he serve four years incarcerated
and two years on probation.
[8] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015);
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). Here, Armour was
convicted of one count of a Level 4 felony. The advisory sentence for a Level 4
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019 Page 4 of 6 felony is six years, with a range between two and twelve years. Ind. Code § 35-
50-2-5.5. Armour was given a seven-year sentence.
[9] As this court has recognized, the nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Armour had
been previously convicted for dealing cocaine, and this was an aggravating
factor. Here, Armour’s sentence is not inappropriate because of the nature of
the offense.
[10] The character of the offender is found in what we learn of the offender’s life and
conduct. Perry, 78 N.E.3d at 13. When considering the character of the
offender, one relevant fact is the defendant’s criminal history. Johnson v. State,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 12 2019, 7:10 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean C. Mullins Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Curtis L. Armour, June 12, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2929 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Diane R. Boswell, Judge Trial Court Cause No. 45G03-1505-F2-3
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019 Page 1 of 6 [1] Curtis L. Armour (“Armour”) pleaded guilty to one count of dealing in
cocaine1, a Level 4 felony, and was sentenced to seven years in the Indiana
Department of Correction. He now appeals his sentence, arguing that his
sentence is inappropriate in light of the nature of the offense and his character.
[2] We affirm.
Facts and Procedural History [3] In early 2015, Armour was laid off from his employment. Appellant’s App. Vol.
II at 53. He lost his home and could not financially support himself or his
family. Tr. Vol. II at 42. Armour then began selling cocaine. Id. In February
2015, Armour sold cocaine to an undercover police officer on four occasions.
Id. at 43. Each time, the cocaine weighed more than one gram and less than
five grams. Id. Armour was initially charged with four counts of dealing in
cocaine, as Level 3 felonies, and one count of dealing in cocaine as a Level 2
felony. Appellant’s App. Vol. II at 72. During the plea negotiations, the charges
were amended, and Armour was charged with one count of dealing in cocaine
as a Level 4 felony, and the other charges were dismissed.
[4] While waiting for his case to be resolved, Armour obtained a job as a janitor,
and, at the time of sentencing, he had maintained his employment for nearly
three years. Tr. Vol. II at 39. During this time, Armour became more
1 See Ind. Code § 34-48-4-1(c).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019 Page 2 of 6 financially stable and started his own savings account. Id. at 53. He also began
to provide more support for his eight children. Id. at 52.
[5] In preparation for the sentencing hearing, Armour was assessed by the IRAS-
CST and determined to be a “HIGH” risk to reoffend. Appellant’s App. Vol. II at
54. The trial court considered this information and Armour’s criminal history,
which began in 1996. On the two occasions that Armour was previously
allowed to serve his sentence on probation, he violated his probation, and the
State filed petitions to revoke his probation. Tr. Vol. II at 46. The trial court
found Armour’s criminal history to be an aggravating factor and found no
mitigating factors. Id. at 67. Armour was sentenced to seven years executed in
the Indiana Department of Correction. Id.
Discussion and Decision [6] Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
[c]ourt finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Our Supreme Court has explained
that the principal role of appellate review should be to attempt to leaven the
outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.
State, 895 N.E.2d 1219, 1225. (Ind. 2008). We independently examine the
nature of Armour’s offense and his character under Appellate Rule 7(b) with
substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d
344, 355 (Ind. 2015). “In conducting our review, we do not look to see whether
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019 Page 3 of 6 the defendant’s sentence is appropriate or if another sentence might be more
appropriate; rather, the test is whether the sentence is ‘inappropriate.’” Barker v.
State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a
sentence is inappropriate ultimately depends upon “the culpability of the
defendant, the severity of the crime, the damage done to others, and a myriad
of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at
1224. Armour bears the burden of persuading this court that his sentence is
inappropriate. Id.
[7] Armour argues that his sentence is inappropriate in light of the nature of the
offense and his character. He contends that the nature of the offense did not
warrant the aggravated sentence because the offense was not more egregious
than necessary to fulfill the elements of the crime. Appellant’s Br. at 6. He
asserts that the trial judge found the nature of the offense was not an
aggravating factor and claims that the judge failed to recognize his character
improvements as a mitigating factor. Id. at 8-9. Armour states that he has more
financial stability and job security, and this will remove his likelihood to return
to criminal activities. Id. Armour requests that he serve four years incarcerated
and two years on probation.
[8] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015);
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). Here, Armour was
convicted of one count of a Level 4 felony. The advisory sentence for a Level 4
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019 Page 4 of 6 felony is six years, with a range between two and twelve years. Ind. Code § 35-
50-2-5.5. Armour was given a seven-year sentence.
[9] As this court has recognized, the nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Armour had
been previously convicted for dealing cocaine, and this was an aggravating
factor. Here, Armour’s sentence is not inappropriate because of the nature of
the offense.
[10] The character of the offender is found in what we learn of the offender’s life and
conduct. Perry, 78 N.E.3d at 13. When considering the character of the
offender, one relevant fact is the defendant’s criminal history. Johnson v. State,
986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Armour has a criminal record
which spans twenty-two years and which includes several convictions for drug-
related offenses. In 2003, Armour pleaded guilty to three counts of dealing in
cocaine as a Class A felony and one count of Class B felony possession of
cocaine. Id. In another case from 2003, Armour pleaded guilty to three counts
of Class A felony dealing in cocaine. Id. Since then, Armour has also been
convicted of possession of marijuana, eight counts of dealing in cocaine,
domestic battery, criminal mischief, and operating a vehicle while intoxicated.
Id. at 49-52. Armour’s extensive criminal history is an aggravating factor.
[11] The trial court concluded that although Armour’s change in behavior was an
improvement, it did not rise to the level of a mitigating factor. Appellant’s App.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019 Page 5 of 6 Vol. II at 70. We agree. Armour contends that he only went back to drug
dealing after he lost his job and would not go back to drug dealing if he were to
lose his job today because he has started a savings account. Appellant’s Br. at 5.
Although Armour’s improvements are notable, his return to drug dealing after
his previous convictions for the same crime was an aggravating factor.
Armour’s sentence of seven years executed is not inappropriate in light of the
nature of the offense and the character of the offender.
[12] Affirmed.
Vaidik, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019 Page 6 of 6