MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 17 2018, 9:29 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Porshea N. Gentry, April 17, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-21 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D06-1507-F4-46
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 1 of 7 Statement of the Case [1] Porshea N. Gentry appeals her sentence following her convictions for dealing in
a narcotic drug, as a Level 4 felony, and two counts of dealing in cocaine, as
Level 5 felonies. Gentry presents a single issue for our review, namely, whether
her sentence is inappropriate in light of the nature of the offenses and her
character. We affirm.
Facts and Procedural History [2] On May 18, 2015, a confidential information (“CI”) for the Fort Wayne Police
Department (“FWPD”) purchased one-half gram of cocaine from Gentry in
exchange for $50. And on June 9, the CI again purchased one-half gram of
cocaine from Gentry in exchange for $50. On June 25, an officer with the
FWPD conducted a traffic stop of a vehicle after the officer observed Gentry,
who was the main suspect in a narcotics investigation, get into the passenger
seat. The officer conducted a search of the vehicle and found a total of 7.2
grams of cocaine, five plastic baggies, a digital scale with cocaine residue on it,
and $1,447 in cash. The State charged Gentry with two counts of dealing in
cocaine, as Level 5 felonies, and one count of possession of a narcotic drug with
intent to deliver, as a Level 4 felony.
[3] On October 13, Gentry pleaded guilty to all three charges. The trial court took
Gentry’s guilty plea under advisement and placed her into the Drug Court
Diversion Program. As a condition of her placement, Gentry agreed to appear
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 2 of 7 in court as required, to report to her case manager as directed, and to comply
with sanctions imposed by the court.
[4] On February 22, 2016, Gentry failed to appear for a hearing. The next day, a
warrant was issued for Gentry’s arrest. Gentry was arrested on October 30,
2017. On November 6, the State filed a petition to terminate Gentry’s
participation in the drug court program because Gentry had failed to complete
ten hours of community service imposed on February 8, 2016, as a sanction for
prior violations of drug court rules; she had failed to report for a case-
management appointment on February 9, 2016; and she had failed to appear for
court on February 22, 2016. The trial court terminated Gentry’s participation
in the drug court program on November 29, 2017.
[5] On December 6, the trial court accepted Gentry’s guilty plea, found her guilty
as charged, and entered judgment of conviction accordingly. During the
sentencing hearing, the trial court identified mitigating and aggravating
circumstances and sentenced Gentry to the advisory sentences for all three
convictions, which included six years for dealing in a narcotic drug, as a Level 4
felony, and three years each for the two counts of dealing in cocaine, as Level 5
felonies, to be served concurrently. This appeal ensued.
Discussion and Decision [6] Gentry contends that her sentence is inappropriate in light of the nature of the
offenses and her character. Indiana Appellate Rule 7(B) provides that “[t]he
Court may revise a sentence authorized by statute if, after due consideration of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 3 of 7 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.” The
Indiana Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[7] 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, 895 N.E.2d at 1222. 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, the damage done to
others, and myriad other factors that come to light in a given case.” Id. at 1224.
The question 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). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 4 of 7 [8] The sentencing range for a Level 4 felony is two years to twelve years, with an
advisory sentence of six years. Ind. Code § 35-40-2-5.5 (2018). And the
sentencing range for a Level 5 felony is one year to six years, with an advisory
sentence of three years. I.C. § 35-50-2-6. Here, the trial court identified as
mitigating factors the fact that Gentry had accepted responsibility and that she
had expressed remorse. And the trial court identified the following aggravating
factors: Gentry’s criminal history, which includes two juvenile delinquency
adjudications and seven misdemeanor convictions as an adult; that she had had
her probation revoked three times; that she had had her suspended sentence
revoked once; that she has a history of failed attempts at rehabilitation; and that
she had absconded from drug court for over twenty months. Accordingly, the
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 17 2018, 9:29 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Porshea N. Gentry, April 17, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-21 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D06-1507-F4-46
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 1 of 7 Statement of the Case [1] Porshea N. Gentry appeals her sentence following her convictions for dealing in
a narcotic drug, as a Level 4 felony, and two counts of dealing in cocaine, as
Level 5 felonies. Gentry presents a single issue for our review, namely, whether
her sentence is inappropriate in light of the nature of the offenses and her
character. We affirm.
Facts and Procedural History [2] On May 18, 2015, a confidential information (“CI”) for the Fort Wayne Police
Department (“FWPD”) purchased one-half gram of cocaine from Gentry in
exchange for $50. And on June 9, the CI again purchased one-half gram of
cocaine from Gentry in exchange for $50. On June 25, an officer with the
FWPD conducted a traffic stop of a vehicle after the officer observed Gentry,
who was the main suspect in a narcotics investigation, get into the passenger
seat. The officer conducted a search of the vehicle and found a total of 7.2
grams of cocaine, five plastic baggies, a digital scale with cocaine residue on it,
and $1,447 in cash. The State charged Gentry with two counts of dealing in
cocaine, as Level 5 felonies, and one count of possession of a narcotic drug with
intent to deliver, as a Level 4 felony.
[3] On October 13, Gentry pleaded guilty to all three charges. The trial court took
Gentry’s guilty plea under advisement and placed her into the Drug Court
Diversion Program. As a condition of her placement, Gentry agreed to appear
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 2 of 7 in court as required, to report to her case manager as directed, and to comply
with sanctions imposed by the court.
[4] On February 22, 2016, Gentry failed to appear for a hearing. The next day, a
warrant was issued for Gentry’s arrest. Gentry was arrested on October 30,
2017. On November 6, the State filed a petition to terminate Gentry’s
participation in the drug court program because Gentry had failed to complete
ten hours of community service imposed on February 8, 2016, as a sanction for
prior violations of drug court rules; she had failed to report for a case-
management appointment on February 9, 2016; and she had failed to appear for
court on February 22, 2016. The trial court terminated Gentry’s participation
in the drug court program on November 29, 2017.
[5] On December 6, the trial court accepted Gentry’s guilty plea, found her guilty
as charged, and entered judgment of conviction accordingly. During the
sentencing hearing, the trial court identified mitigating and aggravating
circumstances and sentenced Gentry to the advisory sentences for all three
convictions, which included six years for dealing in a narcotic drug, as a Level 4
felony, and three years each for the two counts of dealing in cocaine, as Level 5
felonies, to be served concurrently. This appeal ensued.
Discussion and Decision [6] Gentry contends that her sentence is inappropriate in light of the nature of the
offenses and her character. Indiana Appellate Rule 7(B) provides that “[t]he
Court may revise a sentence authorized by statute if, after due consideration of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 3 of 7 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.” The
Indiana Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[7] 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, 895 N.E.2d at 1222. 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, the damage done to
others, and myriad other factors that come to light in a given case.” Id. at 1224.
The question 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). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 4 of 7 [8] The sentencing range for a Level 4 felony is two years to twelve years, with an
advisory sentence of six years. Ind. Code § 35-40-2-5.5 (2018). And the
sentencing range for a Level 5 felony is one year to six years, with an advisory
sentence of three years. I.C. § 35-50-2-6. Here, the trial court identified as
mitigating factors the fact that Gentry had accepted responsibility and that she
had expressed remorse. And the trial court identified the following aggravating
factors: Gentry’s criminal history, which includes two juvenile delinquency
adjudications and seven misdemeanor convictions as an adult; that she had had
her probation revoked three times; that she had had her suspended sentence
revoked once; that she has a history of failed attempts at rehabilitation; and that
she had absconded from drug court for over twenty months. Accordingly, the
trial court sentenced Gentry to an aggregate term of six years with the
Department of Correction.
[9] Gentry maintains that her sentence is inappropriate in light of the nature of the
offenses because “there is nothing aggravating about the offense facts.”
Appellant’s Br. at 11. She further asserts that her sentence should be revised
because the crimes were “caused by substance[-]abuse issues,” Id. at 11. First,
to Gentry’s point that the offenses were typical of drug-dealing offenses, the
trial court apparently agreed and imposed the advisory sentences. Second,
officers found a total of 7.2 grams of cocaine, five clear, plastic baggies, a digital
scale that field tested positive for cocaine, and $1,447 when they arrested
Gentry. Based on the amount of cocaine that Gentry was bringing into the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 5 of 7 community, we cannot say that Gentry’s six-year sentence for three felony
convictions is inappropriate in light of the nature of the offenses.
[10] Gentry further asserts that her sentence is inappropriate in light of her character.
She contends that her drug addiction is a “deep-seated medical condition”; that
“addiction is something that cannot be cured through incarceration”; and that,
“What she does not need is a prolonged prison sentence.” Id. Gentry also
contends that her sentence in inappropriate in light of her character because a
review of her criminal history reveals that most of her convictions are driving
offenses. Appellant’s Br. at 11. Be that as it may, Gentry’s poor character is
demonstrated by the fact that she had her probation revoked three times and a
suspended sentence revoked once, and she absconded from the drug court
program for over twenty months. Further, Gentry admits to a history of
substance abuse, which she has been unable to overcome.1 And, as the State
notes, Gentry is not just a user, but she is “an active dealer.” Appellee’s Br. at
10. We cannot say that Gentry’s sentence is inappropriate in light of her
character. Accordingly, we affirm her sentence.
[11] Affirmed.
1 Gentry contends that “[h]ard statistics tell[] us that this dependency should not be considered an aggravating factor for the purposes of sentencing[.]” Appellant’s Br. at 11. She further contends that her criminal history should not be treated as an aggravating factor. To the extent that Gentry contends that the trial court abused its discretion when it considered those two factors as aggravating circumstances, Gentry has not made a cogent argument on appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 6 of 7 Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-21 | April 17, 2018 Page 7 of 7