Douglas R. Cutter v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 29, 2016
• Docket: 15A01-1512-CR-2288
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jun 29 2016, 9:01 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana

Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Douglas R. Cutter, June 29, 2016 Appellant-Defendant, Court of Appeals Case No. 15A01-1512-CR-2288 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause No. 15D01-1506-F5-42

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 1 of 11 [1] Douglas R. Cutter appeals his sentence for dealing in a narcotic drug as a level

5 felony and conspiracy to deal in a narcotic drug as a level 5 felony. Cutter

raises one issue which we restate as whether his sentence is inappropriate in

light of the nature of the offense and the character of the offender. We affirm.

Facts and Procedural History

[2] In June 2015, a detective with the Lawrenceburg Police Department served in

an undercover role at Proximo, at the company’s request, due to the presence of

drug activity. Cutter worked for a placement service which provided workers

for Proximo’s warehouse. On June 1, 2015, the undercover detective “went

into [a] Proximo warehouse as . . . an employee from out of town.” Transcript

at 25. On June 3, 2015, he was working third shift and became acquainted with

Cutter. The detective told Cutter that he had been experiencing back pain, that

he was working at Proximo as an out of town employee, and that he had been

to a doctor and had been prescribed hydrocodone, and Cutter replied that he

should have been prescribed oxycodone and that Cutter could supply him with

ten milligram tablets of oxycodone.

[3] During the first break during the shift, Cutter provided the detective with his

phone number, stated that his wife currently had his phone, and asked to use

the detective’s phone to contact his wife. Cutter asked his wife for a phone

number of one of his suppliers by name. Cutter then contacted the supplier to

see if he had ten milligram tablets of oxycodone available for sale, the supplier

indicated he did and that the cost would be ten dollars per tablet, the detective

said that he would purchase as many as five tablets for a total of fifty dollars, Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 2 of 11 and Cutter related the message to the supplier during the call.

[4] The detective and Cutter continued to work their shift and talk to each other.

Cutter talked about other suppliers of controlled substances that he had, and he

eventually indicated that he had heroin and could supply the detective with

heroin. Cutter stated he had spent a lot of money on pain medication in the

past, but “that now he had turned to, what is known as dog, [] a street term for

heroin, because it was much cheaper, and that he could provide [the undercover

detective] with heroin.” Id. at 28. After completing their shift, the detective

continued to maintain contact with Cutter through the next day via text

messages and phone calls, and Cutter later told him that “his supplier of

oxycodone had backed out. . . .” Id. at 29. At that point, the detective asked

Cutter if he had any heroin, and Cutter responded affirmatively and agreed to

sell him heroin.

[5] Prior to beginning their shift the next night, the detective traveled to Cutter’s

residence in Lawrenceburg, picked him up, and then traveled to Proximo’s

parking lot. After they arrived, Cutter handed the detective a folded piece of

paper containing heroin, the detective asked him how much he wanted for it,

and Cutter “said fifteen dollars.” Id. at 30. The detective gave Cutter twenty

dollars with the expectation that Cutter would owe him five dollars at some

point.

[6] The following day, the detective continued to have contact with Cutter, and

Cutter advised that he could retrieve more heroin for him and “suggested that

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 3 of 11 [he] purchase fifty dollars worth,” and the detective agreed. Id. at 30. The

detective reminded Cutter he owed him five dollars, and Cutter stated that he

“would make the amount of the heroin correct so that it would be five dollars

more, five dollars in addition to the fifty dollars worth.” Id. at 31. The

detective worked a shift at Proximo, later contacted Cutter and told him he was

traveling to McDonalds on his lunch break, and Cutter said he would meet him

there. When Cutter arrived, his wife and one of his sons were in his vehicle.

Cutter handed the detective a piece of paper with heroin in it and said that it

was better than the heroin he delivered the previous day and to use just a small

amount. The detective handed Cutter fifty dollars. Several days later, Cutter

contacted the detective by text message, stating “I’m making a run, you need

any or are you good.” Id. at 32. Cutter later sent another text message to the

detective, and the detective stated “yes, I’m fine” and that he “may not be

working there any longer.” Id.

[7] The detective obtained the phone records of the phone number Cutter had

provided and discovered text messages between Cutter and his supplier “just

prior to when [the undercover detective] first met [Cutter]” on June 3, 2015. Id.

One of the messages from Cutter’s phone stated “I get you more business, just

look out for me,” and there was a reply message which stated “every new

person you bring to me I will look out for you.” Id. at 33.

[8] On June 16, 2015, the State charged Cutter with: Count I, dealing in a narcotic

drug (heroin) as a level 5 felony; and Count II, conspiracy to deal in a narcotic

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 4 of 11 drug (heroin) as a level 5 felony.1 On October 28, 2015, Cutter pled guilty to

the charges. At sentencing, the undercover detective testified to the foregoing

and that, throughout their conversations, Cutter “complained to [him that] law

enforcement was very strict in this area, had zero tolerance for illegal drug

activity” and that he was “just making [him] aware of all that.” Id. at 34.

Cutter testified that he worked third shift at Proximo and that he worked a

second job during the day trimming trees, and he testified he previously worked

at a gravel pit for eleven years. He stated he had five grown children and five

grandchildren and that he is a drug addict. He testified he was in a motorcycle

accident in about 1986 or 1987, that he stayed on pills for probably eight years,

that he lost his job and insurance and could not afford to see a doctor, and that

he started buying the pills from the street. He testified that he eventually

purchased heroin because it was cheaper, that he did enough just to cure his

pain, and that he continued to work. He further indicated that his wife was one

of the co-defendants in this case and that he has not spoken to her since they

were arrested. When asked by the prosecutor if he was the one that suggested

heroin, Cutter stated “[y]ea, I suggested it to him, that I could get it, yea.” Id.

at 53. When asked “[y]ou also indicated to probation that you thought that this

whole instance [sic] offense was brought on by your wife, both dropping dirty at

the probation department,” Cutter answered “I’m thinking maybe that’s why

1 Cutter’s wife and one of his sons were also named defendants in the charging information. Cutter’s wife was charged with the same counts as Cutter, and Cutter’s son was charged with attempted dealing in a narcotic drug (oxycodone).

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 5 of 11 the charged with me [sic], because she lived with me so.” Id. at 54. Cutter

stated that he was very sorry for what he did.

[9] The court noted Cutter’s previous convictions and probation violations. The

court stated that it considered the fact Cutter pled to the mercy of the court as a

mitigating factor. It rejected that he was likely to respond to probation or short

term imprisonment, that he is unlikely to commit another crime, or that

imprisonment would result in undue hardship on him or his dependents. The

court also noted that, based upon his experience on probation, Cutter was well

aware of the potential consequences, that Cutter’s culpability was high, and that

Cutter saw the detective for a very short period of time and yet allegedly

traveled to Cincinnati to obtain heroin to give him, showing that Cutter was

willing to deal heroin to essentially a complete stranger. The court also noted

that “originally the conversation was pills and [Cutter] escalated this to a heroin

deal.” Id. at 72. Cutter was sentenced to five years on Count I and to a

concurrent five years on Count II.2

Discussion

[10] The issue is whether Cutter’s sentence is inappropriate in light of the nature of

the offenses and his character. Ind. Appellate Rule 7(B) provides that we “may

revise a sentence authorized by statute if, after due consideration of the trial

2 The court stated that Cutter’s wife “was involved in apparently the driving” and had received a sentence of six years, all suspended, and that Cutter’s twenty-two year old son had received a sentence of six years with five years suspended. Transcript at 72.

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 6 of 11 court’s decision, [we find] that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.” Under this rule, the

burden is on the defendant to persuade the appellate court that his or her

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Relief is available if, after due consideration of the trial court’s sentencing

decision, this court finds that in our independent judgment, the sentence is

inappropriate in light of the nature of the offense and the character of the

offender. See Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). “[S]entencing is

principally a discretionary function in which the trial court’s judgment should

receive considerable deference.” Id. (quoting Cardwell v. State, 895 N.E.2d 1219,

1222 (Ind. 2008)). “[A]ppellate review should focus on the forest—the

aggregate sentence—rather than the trees—consecutive or concurrent, number

of counts, or length of the sentence on any individual count.” Cardwell, 895

N.E.2d at 1225. “[W]hether we regard a sentence as appropriate at the end of

the day turns on our sense of the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light

in a given case.” Hines, 30 N.E.3d at 1225 (quoting Cardwell, 895 N.E.2d at

1224).

[11] Cutter asserts that an undercover police officer “pretended to be a dope-sick

fellow addict, prompting Cutter to offer him narcotics and heroin,” that

“[w]hile Cutter’s choice was clearly illegal, his motivation did not spring from a

desire to profit,” and that “[r]ather he saw someone experiencing opiate

withdrawals and felt the need to help.” Appellant’s Brief at 7. He further

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 7 of 11 argues that he is an addict whose problem began in the 1980s following a

motorcycle accident, that his pain pill addiction morphed into a problem with

heroin, that “[t]he fact that his criminal past has been so heavily influenced by

his addictive personality illustrates why he would have acted as he did when the

undercover cop complained of drug withdrawal symptoms,” and that his

character “is more appropriately shown through his attitude toward his fellow

man rather than a recitation of his criminal history.” Id. at 9.

[12] The State maintains the sentence imposed by the court is not inappropriate, that

Cutter has violated probation, has a criminal history including felony

convictions for drug crimes, and has had numerous opportunities to act in

accordance with the law and to abstain from drug use but has failed to do so. It

argues that Cutter’s motivation to commit the crimes was not altruistic or

simply an effort to look after a sick friend, that he exchanged text messages with

a supplier prior to meeting the undercover detective, he encouraged the

detective to buy more heroin in the second transaction and to make a third

purchase, and that the evidence suggests Cutter was engaged in frequent drug

transactions and stood to benefit personally from doing so. The State notes that

Cutter sold heroin to the undercover detective twice, made an unsolicited offer

to sell him heroin on a third occasion, and involved his wife and son in the

transactions.

[13] With respect to the nature of the offenses, the record reveals that Cutter indicated

that he could supply the detective with heroin, that the detective later asked

Cutter if he had heroin and Cutter agreed to sell him heroin, and that Cutter sold

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 8 of 11 heroin to the detective for fifteen dollars. Cutter subsequently suggested that the

detective purchase fifty dollars of heroin, the detective traveled on his break to

meet Cutter, when Cutter arrived his wife and his son were in his vehicle, and

Cutter sold heroin to the detective for fifty dollars. Cutter later contacted the

detective by text message offering to obtain additional heroin for him.

[14] With respect to Cutter’s character, we note that he pled guilty to two counts of

dealing in a narcotic drug as level 5 felonies. The presentence investigation

report (“PSI”) states that he reported that his marriage is “pretty good” but

“believes his wife brought the instant offense on him by ‘dropping dirty at the

probation department.’” Appellant’s Appendix at 87. The PSI states Cutter

was born on July 26, 1963, that he is married and the father of five adult

children, and that he considers himself to be an addict. Cutter reported that he

received drug and alcohol counseling in the Dearborn County Law

Enforcement Center when offered, that he first consumed alcohol when he was

sixteen years old and started drinking every day until he was eighteen years old,

that when he was twenty-eight he began to smoke marijuana daily for one year,

at age forty-five he snorted cocaine a few times, he was prescribed hydrocodone

for a shoulder injury, he was addicted to the pills so he began purchasing them

off the street, he began using ten dollars of heroin every day, and that he was in

a motorcycle accident where he sustained multiple injuries and heroin helped

curb the pain. The PSI further states that Cutter accepted accountability for his

actions but disagreed with the charge of dealing and that he was the one that

was approached and provoked by an undercover person.

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 9 of 11 [15] In addition, the PSI indicates that Cutter’s criminal history includes convictions

for burglary as a class C felony in 1982, for which he was sentenced to five

years incarceration with one year suspended and four years reporting probation;

operating a vehicle with an alcohol concentration equivalent to at least .08 but

less than .15 and possession of marijuana as class D felonies in 1990; reckless

driving, filed in 1996; public intoxication as a class B misdemeanor in 2010;

visiting a common nuisance as a class B misdemeanor in April 2013, for which

the court ordered a suspended sentence and probation and later revoked 120

days of the suspended sentence after a positive drug screen and intoxication;

and receiving stolen property as a class D felony in December 2013, for which

he was sentenced to 1,095 days with 730 days suspended to reporting

probation, 180 days of which was suspended following a positive drug screen.

The PSI provides that Cutter’s overall risk assessment score using the Indiana

Risk Assessment System places him in the high risk to reoffend category.

[16] After due consideration and in light of Cutter’s criminal history and previous

probation revocations, we conclude Cutter has not met his burden of

establishing that his aggregate sentence is inappropriate in light of the nature of

his offenses and his character.

Conclusion

[17] For the foregoing reasons, we affirm Cutter’s aggregate five-year sentence for

dealing in a narcotic drug and conspiracy to deal in a narcotic drug as level 5

felonies.

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 10 of 11 [18] Affirmed.

Baker, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A01-1512-CR-2288 | June 29, 2016 Page 11 of 11