MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 04 2017, 8:31 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Hilary Bowe Ricks Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kennan Dumas, October 4, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1703-CR-577 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia Gooden, Appellee-Plaintiff Judge The Honorable Richard Hagenmaier, Commissioner Trial Court Cause No. 49G21-1610-F4-41901
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 1 of 7 Case Summary [1] Kennan Dumas appeals the twelve-year sentence imposed by the trial court
after a jury convicted him of level 4 felony possession of a firearm as a serious
violent felon. He contends that his sentence is inappropriate in light of the
nature of the offense and his character. Concluding that he has not met his
burden to demonstrate that his sentence is inappropriate, we affirm.
Facts and Procedural History [2] On October 23, 2016, Indianapolis Metropolitan Police Department (“IMPD”)
Officer Samuel House was dispatched to an address on North Grant Avenue in
response to a report of “a person assaulted with shots fired.” Tr. at 109-10.
When Officer House arrived, he encountered Michael Bennett sitting on the
front porch of the residence. Based on his conversation with Bennett, Officer
House determined that there was another individual with whom he needed to
speak. Officer House walked around the left side of the residence to a side
entrance with a separate address written on it. The other individual Officer
House was looking for was not present at the residence, so Officer House told
Bennett to call if there were “any other issues or if the individual comes back.”
Id. at 111. Officer House then left the scene.
[3] A few hours later, at approximately 3:50 a.m., IMPD Officer Brian Sosbe was
dispatched to the same address on a “disturbance call.” Id. at 117-18. Officer
Sosbe was aware that there had been a previous report that morning of shots
fired at that address. Officer Sosbe encountered two men sitting on the front
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 2 of 7 porch. As he was speaking to those men, Officer Sosbe heard the sound of a
door slamming on the left side of the residence. When Officer Sosbe walked
around the left side of the residence, he saw a man, later identified as Dumas, in
the side yard. Officer Sosbe activated the flashlight attached to his firearm,
identified himself, and ordered Dumas to stop and show his hands.
[4] Dumas briefly raised his hands above his waist, but then “immediately turned
and ran to the door” on the left side of the residence and went inside. Id. at
123. Dumas slammed the door and locked the deadbolt behind him. Officer
Sosbe heard a “loud thud” that “sounded like a heavy metallic object hitting the
floor” just inside the door. Id. at 124. Because Officer Sosbe “took the sound
of that thud being a gun,” he backed slowly away from the door, assumed a
defensive position, and called for backup. Id. at 125.
[5] About a minute later, Dumas exited the residence and Officer Sosbe placed him
in handcuffs. Noticing that there was also a female just inside the door, Officer
Sosbe ordered her to come outside. While Dumas was handcuffed on the
ground, he yelled repeatedly to the female, “Don’t talk to them. Don’t tell them
nothing. Don’t let them in the house.” Id. at 126. Officers discovered that the
female, Breanna Benner, was the owner of the residence. While on the scene,
Benner signed a consent to search form after being advised of her rights.
During a search of the residence, officers discovered two handguns underneath
a metal grate just inside the door. Dumas had a prior conviction for class B
felony dealing in cocaine or a narcotic drug, so it was illegal for him to possess
a firearm.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 3 of 7 [6] The State charged Dumas with level 4 felony possession of a firearm as a
serious violent felon, level 5 felony battery, and level 6 felony criminal
recklessness. The State later dismissed two of the charges and a jury trial
proceeded on the level 4 felony. The jury found Dumas guilty as charged.1
Following a hearing, the trial court sentenced Dumas to twelve years, with four
years suspended, two of which were to be served on probation. This appeal
ensued.
Discussion and Decision [7] Dumas claims that his sentence is inappropriate and invites this Court to revise
his sentence pursuant to Indiana Appellate Rule 7(B), which provides that we
may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find that the sentence “is inappropriate in light of the
nature of the offense and the character of the offender.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
1 Dumas stipulated to having a prior class B felony conviction for dealing in cocaine or a narcotic drug.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 4 of 7 the damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224. We consider all aspects of the penal consequences imposed
by the trial court in sentencing the defendant, including whether a portion of
the sentence is ordered suspended “or otherwise crafted using any of the variety
of sentencing tools available to the trial judge.” Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). In conducting our review, we do not look to see
whether the defendant’s sentence is appropriate or “if another sentence might
be more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).
[8] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 04 2017, 8:31 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Hilary Bowe Ricks Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kennan Dumas, October 4, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1703-CR-577 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia Gooden, Appellee-Plaintiff Judge The Honorable Richard Hagenmaier, Commissioner Trial Court Cause No. 49G21-1610-F4-41901
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 1 of 7 Case Summary [1] Kennan Dumas appeals the twelve-year sentence imposed by the trial court
after a jury convicted him of level 4 felony possession of a firearm as a serious
violent felon. He contends that his sentence is inappropriate in light of the
nature of the offense and his character. Concluding that he has not met his
burden to demonstrate that his sentence is inappropriate, we affirm.
Facts and Procedural History [2] On October 23, 2016, Indianapolis Metropolitan Police Department (“IMPD”)
Officer Samuel House was dispatched to an address on North Grant Avenue in
response to a report of “a person assaulted with shots fired.” Tr. at 109-10.
When Officer House arrived, he encountered Michael Bennett sitting on the
front porch of the residence. Based on his conversation with Bennett, Officer
House determined that there was another individual with whom he needed to
speak. Officer House walked around the left side of the residence to a side
entrance with a separate address written on it. The other individual Officer
House was looking for was not present at the residence, so Officer House told
Bennett to call if there were “any other issues or if the individual comes back.”
Id. at 111. Officer House then left the scene.
[3] A few hours later, at approximately 3:50 a.m., IMPD Officer Brian Sosbe was
dispatched to the same address on a “disturbance call.” Id. at 117-18. Officer
Sosbe was aware that there had been a previous report that morning of shots
fired at that address. Officer Sosbe encountered two men sitting on the front
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 2 of 7 porch. As he was speaking to those men, Officer Sosbe heard the sound of a
door slamming on the left side of the residence. When Officer Sosbe walked
around the left side of the residence, he saw a man, later identified as Dumas, in
the side yard. Officer Sosbe activated the flashlight attached to his firearm,
identified himself, and ordered Dumas to stop and show his hands.
[4] Dumas briefly raised his hands above his waist, but then “immediately turned
and ran to the door” on the left side of the residence and went inside. Id. at
123. Dumas slammed the door and locked the deadbolt behind him. Officer
Sosbe heard a “loud thud” that “sounded like a heavy metallic object hitting the
floor” just inside the door. Id. at 124. Because Officer Sosbe “took the sound
of that thud being a gun,” he backed slowly away from the door, assumed a
defensive position, and called for backup. Id. at 125.
[5] About a minute later, Dumas exited the residence and Officer Sosbe placed him
in handcuffs. Noticing that there was also a female just inside the door, Officer
Sosbe ordered her to come outside. While Dumas was handcuffed on the
ground, he yelled repeatedly to the female, “Don’t talk to them. Don’t tell them
nothing. Don’t let them in the house.” Id. at 126. Officers discovered that the
female, Breanna Benner, was the owner of the residence. While on the scene,
Benner signed a consent to search form after being advised of her rights.
During a search of the residence, officers discovered two handguns underneath
a metal grate just inside the door. Dumas had a prior conviction for class B
felony dealing in cocaine or a narcotic drug, so it was illegal for him to possess
a firearm.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 3 of 7 [6] The State charged Dumas with level 4 felony possession of a firearm as a
serious violent felon, level 5 felony battery, and level 6 felony criminal
recklessness. The State later dismissed two of the charges and a jury trial
proceeded on the level 4 felony. The jury found Dumas guilty as charged.1
Following a hearing, the trial court sentenced Dumas to twelve years, with four
years suspended, two of which were to be served on probation. This appeal
ensued.
Discussion and Decision [7] Dumas claims that his sentence is inappropriate and invites this Court to revise
his sentence pursuant to Indiana Appellate Rule 7(B), which provides that we
may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find that the sentence “is inappropriate in light of the
nature of the offense and the character of the offender.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
1 Dumas stipulated to having a prior class B felony conviction for dealing in cocaine or a narcotic drug.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 4 of 7 the damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224. We consider all aspects of the penal consequences imposed
by the trial court in sentencing the defendant, including whether a portion of
the sentence is ordered suspended “or otherwise crafted using any of the variety
of sentencing tools available to the trial judge.” Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). In conducting our review, we do not look to see
whether the defendant’s sentence is appropriate or “if another sentence might
be more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).
[8] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
for a level 4 felony is between two and twelve years, with the advisory sentence
being six years. Ind. Code § 35-50-2-5.5. The trial court here imposed the
maximum sentence of twelve years, with four years suspended.
[9] Dumas complains that he should not have received the maximum sentence for
his crime because, although he did unlawfully possess weapons, he never
“openly” displayed a weapon “on his person.” Appellant’s Br. at 15. He also
posits that by exiting the residence and succumbing to Officer Sosbe’s demands,
he avoided creating a “SWAT situation.” Id. However, the record indicates
that Dumas is not simply a defendant with a prior felony conviction who had
the misfortune of being found in unlawful possession of a firearm. Rather, after
being confronted by Officer Sosbe, Dumas initially fled and retreated into the
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 5 of 7 residence to hide his weapons. When Dumas later exited the residence, he
belligerently yelled to Benner to not allow police to search the home. We are
not persuaded that the nature of this offense warrants a sentence reduction.
[10] In any event, Dumas’s character alone supports the sentence imposed by the
trial court. When considering the character of the offender, one relevant fact is
the defendant’s criminal history. Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct.
App. 2017). Dumas has an extensive criminal history, including numerous
juvenile adjudications, six prior felony convictions, and several prior
misdemeanor convictions. He has been granted the leniency of probation on
numerous occasions, only to have that probation revoked multiple times.
Indeed, he was on probation when he committed the current offense. Dumas’s
refusal to alter his criminal behavior reflects poorly on his character.
[11] Nevertheless, Dumas emphasizes evidence of his past substance abuse and
asserts that the trial court should have recommended his placement in
“Purposeful Incarceration so [that he] could begin working on his addictions
and the underlying issues that feed[] them….” Appellant’s Br. at 17. This
Court has recognized that it is quite difficult for a defendant to prevail on a
claim that the placement of his sentence is inappropriate. Fonner, 876 N.E.2d at
343. “As a practical matter, trial courts know the feasibility of alternative
placements in particular counties or communities.” Id. That is, “a trial court is
aware of the availability, costs, and entrance requirements of community
corrections placements in a specific locale.” Id. at 343-44. Moreover, because
our appellate review is focused not on whether another sentence might be more
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 6 of 7 appropriate, but on whether the sentence imposed is inappropriate, a
“defendant challenging the placement of a sentence must convince us that the
given placement is itself inappropriate.” Id. at 344. Here, rather than placing
Dumas in Purposeful Incarceration, the trial court ordered substance-abuse
treatment as a condition of Dumas’s probation to be completed following his
eight-year executed sentence. Dumas has not demonstrated that this placement
is itself inappropriate.2
[12] Dumas has not met his burden to demonstrate that the sentence imposed by the
trial court is inappropriate in light of the nature of the offense or his character.
Accordingly, we affirm.
[13] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
2 We note that the presentence investigation report indicates that Dumas does not believe that he has a substance abuse problem. Appellant’s Conf. App. at 131.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017 Page 7 of 7