MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 17 2020, 9:32 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 ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Matthew B. MacKenzie Wieneke Law Office, LLC Deputy Attorney General Brooklyn, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James E. Fingers, Jr., June 17, 2020 Appellant/Defendant, Court of Appeals Case No. 20A-CR-292 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Hon. Kelli Fink, Magistrate Appellee/Plaintiff. Trial Court Cause No. 82C01-1907-F6-5131
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020 Page 1 of 6 Case Summary [1] In December of 2019, James Fingers, Jr., pled guilty to Level 6 felony
methamphetamine possession, Level 6 felony failure to register as a sex
offender, and Class A misdemeanor marijuana possession and admitted that he
is a habitual offender. The trial court imposed an aggregate term of five years
of incarceration, which Fingers argues is inappropriately harsh. Because we
disagree, we affirm.
Facts and Procedural History [2] On July 23, 2019, Evansville Police Detective Josh Patterson stopped a minivan
being driven by Fingers after being advised by another officer that Fingers’s
driving privileges had been suspended. A search of the minivan uncovered
several baggies containing a green substance, a baggie containing a “crystal
substance[,]” and a “blunt[.]” Appellant’s App. Vol. II p. 17. The green
substance tested positive for THC, and the crystalline substance tested positive
for methamphetamine. Fingers, who is a registered sex offender, presented
identification to officers that listed a home address different than the address
listed for him in the sex-offender registry.
[3] On July 25, 2019, the State charged Fingers with Level 6 felony
methamphetamine possession, Level 6 felony failure to register as a sex
offender, and Class A misdemeanor marijuana possession and alleged that he is
a habitual offender. On December 3, 2019, without benefit of a plea agreement,
Fingers pled guilty as charged. On January 7, 2020, the trial court sentenced
Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020 Page 2 of 6 Fingers to one and one-half years each for methamphetamine possession and
failure to register a sex offender and ten months for marijuana possession, all
sentences to be served concurrently, with the methamphetamine-possession
sentence enhanced by three and one-half years by virtue of Fingers’s habitual-
offender status.
Discussion and Decision [4] Fingers contends that his five-year aggregate term of incarceration is
inappropriately harsh. We “may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, the Court finds that the sentence
is inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences
must give due consideration to the trial court’s sentence because of the special
expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B)
is an authorization to revise sentences when certain broad conditions are
satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans.
denied (citations and quotation marks omitted). “[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.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the “due
consideration” we are required to give to the trial court’s sentencing decision,
“we understand and recognize the unique perspective a trial court brings to its
Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020 Page 3 of 6 sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.
2007).
[5] Fingers pled guilty to two Level 6 felonies and one Class A misdemeanor and
admitted that he is a habitual offender. Indiana Code section 35-50-2-7(b)
provides that “[a] person who commits a Level 6 felony […] shall be
imprisoned for a fixed term of between six (6) months and two and one-half (2
½) years, with the advisory sentence being one (1) year.” Moreover, “[t]he
court shall sentence a person found to be a habitual offender to an additional
fixed term that is between […] two (2) years and six (6) years, for a person
convicted of a Level 5 or Level 6 felony.” Ind. Code § 35-50-2-8(i)(2). As
mentioned, the trial court imposed an aggregate five-year term, which is out of
a possible maximum of ten.1
[6] The nature of Fingers’s offenses does not warrant a reduction in his sentence.
While none of Fingers’s offenses, looked at in isolation, seem particularly
egregious, he did commit two felonies, for which he received moderately-
enhanced sentences, and one misdemeanor. Moreover, Fingers committed
these offenses despite his habitual-offender status. When we consider that the
trial court could have imposed a term of incarceration twice as long as the one
1 Under the circumstances of this case, it seems that the trial court could have imposed a maximum aggregate sentence of no more than four years for Fingers’s three convictions, see Ind. Code § 35-50-1-2(d)(1) (“If the most serious crime [arising out of an episode of criminal conduct] for which the defendant is sentenced is a Level 6 felony, the total of the consecutive terms of imprisonment may not exceed four (4) years.”), which it then could have enhanced by six years.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020 Page 4 of 6 that it did, we conclude that the nature of Fingers’s offenses does not warrant a
reduction.
[7] Fingers’s character, as revealed by his truly appalling criminal history, fully
justifies the five-year term of incarceration ordered in this case. Fingers, who
was fifty years old when he committed the offenses in this case, has prior
convictions for
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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 17 2020, 9:32 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 ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Matthew B. MacKenzie Wieneke Law Office, LLC Deputy Attorney General Brooklyn, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James E. Fingers, Jr., June 17, 2020 Appellant/Defendant, Court of Appeals Case No. 20A-CR-292 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Hon. Kelli Fink, Magistrate Appellee/Plaintiff. Trial Court Cause No. 82C01-1907-F6-5131
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020 Page 1 of 6 Case Summary [1] In December of 2019, James Fingers, Jr., pled guilty to Level 6 felony
methamphetamine possession, Level 6 felony failure to register as a sex
offender, and Class A misdemeanor marijuana possession and admitted that he
is a habitual offender. The trial court imposed an aggregate term of five years
of incarceration, which Fingers argues is inappropriately harsh. Because we
disagree, we affirm.
Facts and Procedural History [2] On July 23, 2019, Evansville Police Detective Josh Patterson stopped a minivan
being driven by Fingers after being advised by another officer that Fingers’s
driving privileges had been suspended. A search of the minivan uncovered
several baggies containing a green substance, a baggie containing a “crystal
substance[,]” and a “blunt[.]” Appellant’s App. Vol. II p. 17. The green
substance tested positive for THC, and the crystalline substance tested positive
for methamphetamine. Fingers, who is a registered sex offender, presented
identification to officers that listed a home address different than the address
listed for him in the sex-offender registry.
[3] On July 25, 2019, the State charged Fingers with Level 6 felony
methamphetamine possession, Level 6 felony failure to register as a sex
offender, and Class A misdemeanor marijuana possession and alleged that he is
a habitual offender. On December 3, 2019, without benefit of a plea agreement,
Fingers pled guilty as charged. On January 7, 2020, the trial court sentenced
Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020 Page 2 of 6 Fingers to one and one-half years each for methamphetamine possession and
failure to register a sex offender and ten months for marijuana possession, all
sentences to be served concurrently, with the methamphetamine-possession
sentence enhanced by three and one-half years by virtue of Fingers’s habitual-
offender status.
Discussion and Decision [4] Fingers contends that his five-year aggregate term of incarceration is
inappropriately harsh. We “may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, the Court finds that the sentence
is inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences
must give due consideration to the trial court’s sentence because of the special
expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B)
is an authorization to revise sentences when certain broad conditions are
satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans.
denied (citations and quotation marks omitted). “[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.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the “due
consideration” we are required to give to the trial court’s sentencing decision,
“we understand and recognize the unique perspective a trial court brings to its
Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020 Page 3 of 6 sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.
2007).
[5] Fingers pled guilty to two Level 6 felonies and one Class A misdemeanor and
admitted that he is a habitual offender. Indiana Code section 35-50-2-7(b)
provides that “[a] person who commits a Level 6 felony […] shall be
imprisoned for a fixed term of between six (6) months and two and one-half (2
½) years, with the advisory sentence being one (1) year.” Moreover, “[t]he
court shall sentence a person found to be a habitual offender to an additional
fixed term that is between […] two (2) years and six (6) years, for a person
convicted of a Level 5 or Level 6 felony.” Ind. Code § 35-50-2-8(i)(2). As
mentioned, the trial court imposed an aggregate five-year term, which is out of
a possible maximum of ten.1
[6] The nature of Fingers’s offenses does not warrant a reduction in his sentence.
While none of Fingers’s offenses, looked at in isolation, seem particularly
egregious, he did commit two felonies, for which he received moderately-
enhanced sentences, and one misdemeanor. Moreover, Fingers committed
these offenses despite his habitual-offender status. When we consider that the
trial court could have imposed a term of incarceration twice as long as the one
1 Under the circumstances of this case, it seems that the trial court could have imposed a maximum aggregate sentence of no more than four years for Fingers’s three convictions, see Ind. Code § 35-50-1-2(d)(1) (“If the most serious crime [arising out of an episode of criminal conduct] for which the defendant is sentenced is a Level 6 felony, the total of the consecutive terms of imprisonment may not exceed four (4) years.”), which it then could have enhanced by six years.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020 Page 4 of 6 that it did, we conclude that the nature of Fingers’s offenses does not warrant a
reduction.
[7] Fingers’s character, as revealed by his truly appalling criminal history, fully
justifies the five-year term of incarceration ordered in this case. Fingers, who
was fifty years old when he committed the offenses in this case, has prior
convictions for
• Class B felony burglary; • Class C felonies sexual battery and conspiracy to commit forgery; • Class D felonies operating while intoxicated, possession of cocaine, theft, possession of a controlled substance, and possession of a schedule II controlled substance; • Level 6 felonies failure to register as a sex offender, child seduction, and criminal confinement; • Felony failure to register as a sex offender (Kentucky); • Class A misdemeanors invasion of privacy, domestic battery, interfering with reporting of a crime, driving while suspended, operating while intoxicated causing endangerment, operating while intoxicated with a prior conviction, marijuana possession, and conversion, • Class B misdemeanors criminal recklessness, criminal mischief, and public intoxication; • Class C misdemeanors operating while intoxicated, operating a motor vehicle without having received a license, and illegal possession of paraphernalia; • leaving the scene of an accident (Kentucky); and • operating while suspended (Kentucky).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020 Page 5 of 6 Fingers has multiple convictions for some of the crimes listed, bringing his total
to fifteen prior felony convictions and many more than fifteen prior
misdemeanor convictions. Despite Fingers’s lengthy criminal history and
myriad opportunities to reform himself, he has not chosen to do so. In light of
the nature of his offenses and his character, Fingers has failed to establish that
the five-year term of imprisonment imposed in this case is inappropriate.
[8] We affirm the judgment of the trial court.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020 Page 6 of 6